Parsons v Wilson - [2015] NZHC 3133

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002264 [2015] NZHC 3133

IN THE MATTER of Section 14 of the Wills Act 2007

IN THE ESTATE

OF ERIC WILLIAM PARSONS

Deceased

AND

RICHARD GEORGE WILSON

Applicant

Hearing: On the papers

Counsel:

C E Harris for applicant

Judgment:

9 December 2015

JUDGMENT OF KATZ J

This judgment was delivered by me on 9 December 2015 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Jackson Russell, Auckland
North Harbour Law, Auckland

PARSONS v WILSON [2015] NZHC 3133 [9 December 2015]

Introduction

[1] Eric Parsons died on 26 November 2014, at the age of 91. His last known valid will was executed on 27 November 1989. It granted two relatively small bequests, with the residue of the estate to go to Terry and Godfrey Sherson. As Godfrey Sherson is now deceased, the sole residuary beneficiary under the 1989 will is Terry Sherson.

[2] The applicant, Richard George Wilson, is named as Mr Parsons’ sole executor in his 1989 will. Mr Wilson is a partner with the law firm Jackson Russell. Jackson Russell were Mr Parsons’ solicitors throughout his life.

[3] Mr Parsons wrote a letter to Mr Wilson in May 2014. Mr Wilson applies to have that document declared as Mr Parsons’ valid will, pursuant to s 14 of the Wills Act 2007 (“Act’). The application has been served on all interested parties, including the surviving beneficiaries under the 1989 will. Although Mr Terry Sherson originally opposed the application, he has now withdrawn his opposition. The application is accordingly unopposed.

The facts

[4] Although the relevant letter was written in May 2014, it did not reach Mr Wilson until August 2015. The reasons for that are set out in some detail in an affidavit that has been filed in support of the application by Mr Parsons’ former next door neighbour, Joshua Comer.

[5] Mr Comer’s evidence (which I accept) is that in late May 2014 Mr Parsons phoned him and asked him to stop by after work because he wanted to discuss something. Mr Comer said he could not get there until late. Mr Parsons said that if it was going to be after 7.00 pm he would leave a note for Mr Comer in his letterbox, as he was tired. By the time Mr Comer arrived at Mr Parsons’ house, his lights were out. He checked his letterbox and found that Mr Parsons had left him some old newspapers to read, a bunch of grapes, a card for Mr Comer to give to his grandmother (who was a close friend of Mr Parsons) and a stamped and addressed letter to post. Mr Comer’s Nissan vehicle did not have any carpet in it, so to stop

things rolling around on the floor he sometimes put them under the passenger seat. He did that with the mail and newspapers on this occasion.

[6] Shortly afterwards, in early June 2014, Mr Comer travelled to the United States for work.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parsons v Wilson

Details

AGLC: Parsons v Wilson [2015] NZHC 3133
Case: [2015] NZHC 3133
Decision Date: 9 December 2015

CaseChat Overview and Summary

Parsons v Wilson [2015] NZHC 3133 involved an application by Richard George Wilson to have a letter dated 21 May 2014, written by the deceased Eric Parsons, declared as his valid will. Eric Parsons had died on 26 November 2014, and his last known valid will, dated 27 November 1989, named Wilson as his sole executor and left bequests to Terry and Godfrey Sherson. The 2014 letter, however, expressed Parsons' wish to revoke his 1989 will and divide his estate among the Dils, the Cheesmans, and Joshua Comer. The court was required to decide whether the 2014 letter could be declared as Parsons' valid will under section 14 of the Wills Act 2007.

The court considered the legal issues involved in determining whether the 2014 letter could be declared as a valid will. Section 14 of the Wills Act 2007 allowed the High Court to declare a document as a valid will if it appeared to be a will, did not comply with section 11 of the Act, and expressed the deceased person's testamentary intentions. The court had to consider whether the letter appeared to be a will and whether it expressed Parsons' testamentary intentions.

The court found that the 2014 letter was indeed written by Parsons and appeared to be a will as it expressed his intention to divide his estate among the Dils, the Cheesmans, and Joshua Comer. The court noted that the letter did not need to be headed or described as a will or appear in its final form, as the essential inquiry was whether the document did all or any of the things described in the definition of the word "will" in the Act. The court was satisfied that the letter appeared to be a will in terms of section 14 of the Act. The court also found that the letter expressed Parsons' testamentary intentions, as evidenced by his close relationship with the Dils, the Cheesmans, and Joshua Comer, and his handwritten amendments to his 1989 will, indicating an intention to leave his residuary estate to the Cheesemans instead of the Shersons.

The court concluded that the 2014 letter met the requirements of section 14 of the Act and declared it to be a valid will. The court also declared that the revocation referred to in the 2014 letter was a valid revocation of Parsons' 1989 will held with Jackson Russell. The court ordered that Richard George Wilson be appointed as Parsons' intended executor and trustee of his estate in respect of his 2014 will and that the applicants' costs of and incidental to this application be paid out of Parsons' estate.

Orders