Perry v Jack

[2019] NZHC 1427

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-856

[2019] NZHC 1427

IN THE MATTER

of s 14 of the Wills Act 2007

AND IN THE MATTER

of the ESTATE OF GRAHAM ALAN FROST

BETWEEN

JILLIAN CATHERINE PERRY

Applicant

AND

GILBERT JACK

Respondent

Hearing:

17 June 2019

Appearances:

D K Wilson for the Applicant

No appearance for or on behalf of the Respondent

Judgment:

20 June 2019

JUDGMENT OF PALMER J

This judgment is delivered by me on 20 June 2019 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Counsel:

D K Wilson, Barrister, Auckland

PERRY v JACK [2019] NZHC 1427 [20 June 2019]

[1]                 On 5 December 2018, Mr Graham Frost called Mr Devon McDonald, a solicitor in Manurewa, Auckland, on the telephone, wanting to make a will. On 6 December 2018, they had a further discussion by phone and Mr McDonald attended on Mr Frost in person at Mr Frost’s home in Manurewa. Mr McDonald dictated file notes. He prepared a will in accordance with his instructions and sent it to Mr Frost on 7 December 2018. Mr Frost had discussed the appointment of Mr Gilbert Jack as executor but wished to discuss that with Mr Jack first, so the name of the executor was left blank in the draft.

[2]                 Mr Frost’s health deteriorated suddenly. He died on 11 December 2018, before executing the will. The unexecuted will gave: $100,000 to each of his two children and to the two children of his partner of 28 years, Ms Jillian Perry; an interest in a forestry block to his brother; and the rest of the estate upon trust for Ms Perry.

[3]                 Ms Perry applies to validate the will under s 14 of the Wills Act 2007, which empowers me to declare it valid if it appears to be a will, came into existence in New Zealand and I am satisfied it expresses the deceased’s testamentary intentions, even if the deceased did not sign it. All of the beneficiaries have been served with the application and informed of the date of the hearing of 17 June 2019. All but one, Mr Frost’s daughter Caroline Pantoja, consent to the application. Ms Pantoja has not expressed her views, though counsel advises she told him she did not wish to engage a solicitor. Mr Jack is willing to be appointed executor.

[4]                 On the basis of the evidence, I am satisfied the unexecuted will expresses Mr Frost’s testamentary intentions and that the other pre-conditions of s 14 are satisfied. I declare the will valid.

Palmer J