Phillips, re

[2015] NZHC 1550

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-494 [2015] NZHC 1550

IN THE MATTER OF	the estate of CARLO FERRARA
IN THE MATTER OF	section 14 of the Wills Act 2007
BETWEEN	GARY DOUGLAS PHILLIPS Applicant

On papers
Judgment:	3 July 2015

JUDGMENT OF DOBSON J

[1]      This proceeding has been referred to me for consideration.  It comprises an originating application  brought  under s 14 of the Wills Act 2007,  together  with applications for leave to bring the proceeding by way of an originating application and  to  dispense  with  service  on  contingent  beneficiaries  in  the  testator’s  last executed will.

[2]      The relevant factual circumstances are within a narrow compass and  are appropriately established by the content of three affidavits filed in support of the application.  I am satisfied that the matter can be dealt with on the papers.

[3]      According to the affidavits, the testator and his partner, Mr Phillips, who is the applicant in the proceedings, had printed off two copies of a will that had been sent to them in electronic form by their lawyer.   It was proposed that the testator would execute the will in the presence of two witnesses: Ms Jean Harris, who is a

registered  nurse  and  was at  their  home  to  provide community health  care;  and

RE PHILLIPS [2015] NZHC 1550 [3 July 2015]

Mr Thomas Logan, who was doing gardening at the property occupied by the testator and his partner at the time.

[4]      By mistake, the testator signed the backing page of one of the copies of the will that had been printed. Also, both witnesses purported to witness him signing the other copy.

[5]      Both witnesses have sworn affidavits confirming these circumstances.   In Ms Harris’s case, she confirms that the testator was lucid at the time and that he understood what he was doing.  She was able to attest to his mental capacity, having attended him over the last five or six years and assessing his health each month.

[6]      The will the testator intended to sign was in the simplest possible terms, leaving his whole estate to Mr Phillips, and appointing Mr Phillips executor of his estate.

[7]      The previous will of the testator was executed in Australia in 2008.  It also appointed Mr Phillips as executor and trustee of his will, and bequeathed all his estate, after payment of his debts, funeral and testamentary expenses to Mr Phillips providing he survived the testator by 30 days.

[8]      The 2008 will provided that if Mr Phillips did not survive the testator for

30 days, then the estate was to be held in two equal shares.  One of the shares was to be divided between the testator’s niece and Mr Phillips’ brothers and sisters.   The other share was to be gifted to the Eastwood Hill Trust in Gisborne.

[9]      I turn to the various applications.

Leave to bring the proceeding as an originating application

[10]    The substantive issue is appropriately determined by way of originating application and I accordingly grant leave.

Directions as to service

[11]     Mr Phillips has sought directions as to service, identifying the contingent beneficiaries under the 2008 will as persons that might potentially be served with the originating application.

[12]     Mr Phillips  has  submitted  that  such  service  is  unnecessary.    Given  that Mr Phillips has survived the testator by more than 30 days, if the 2015 writing is not validated as a will, then Mr Phillips would have taken under the 2008 will in any event.

[13]     I accept that analysis and accordingly dispense with service of the proceeding on anyone.

Substantive application for validation of the writing as a will

[14]     This issue is to be assessed under s 14 of the Wills Act 2007, which provides:

14       High Court may declare will valid

(1)      This section applies to a document that—

(a)      appears to be a will; and

(b)      does not comply with section 11; and

(c)      came into existence in or out of New Zealand.

(2)       The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person's testamentary intentions.

(3)      The Court may consider—

(a)      the document; and

(b)      evidence on the signing and witnessing of the document; and

(c)      evidence on the deceased person's testamentary intentions;

and

(d)      evidence of statements made by the deceased person.

[15]   The circumstances deposed to in the affidavits are clearly within those contemplated by s 14 where the Court ought to consider validation.

[16]     On initial  analysis,  the  integrity of  witnesses  is  questionable where they purport to confirm that they have witnessed the execution of a document that has not in fact been executed by the maker of the document.  However, I am satisfied of the explanation offered in this case.  That is that two copies of the very short will were on the table when they were signed, and there was confusion as between the testator and the witnesses as to which document the testator had added his signature to.  In these circumstances, I am also prepared to accept the error in the testator adding his signature on the backing page, rather than in the provision for execution of the will on the short document as printed out.

[17]     Accordingly, I make orders under s 14 of the Wills Act validating the writing to which the witnesses have added their signature as the last will of the testator.  It is deemed to be dated 28 January 2015.

Dobson J

Solicitors:

Cooper Campbell Law, Levin for applicant