Poon (deceased)

[2017] NZHC 199

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-48 [2017] NZHC 199

IN THE MATTER	of section 14 of the Wills Act 2007
IN THE MATTER	of the estate of Lim Poon of Levin, Retired, Deceased

Hearing:	On the papers
Counsel:	A J Parlato for Applicant
Judgment:	17 February 2017

JUDGMENT OF ELLIS J

[1]      Mr Phillip Lim has applied for an order pursuant to s 14 of the Wills Act

2007 (the Act) for an order declaring a document completed by his dead father, Mr Lim Poon, to be a valid will.

[2]      The application is made without notice.  Lim Poon’s six other adult children have consented to the validation of the document.  The estate consists of two bank accounts with a total balance of $31,110.75.

[3]      The document sought to be declared a valid will is a dated and signed (but unwitnessed) draft will with a handwritten note amending it, and a handwritten note on a separate piece of paper setting out the amended division of the residuary estate among the seven children. The note is signed and witnessed (by one person only).

[4]      Section 14 provides:

14       High Court may declare will valid

(1)      This section applies to a document that—

(a)      appears to be a will; and

RE POON (DECEASED) [2017] NZHC 199 [17 February 2017]

(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.

[5]      The  relevant  document  in  this  case  is  the  draft  will  together  with  the handwritten, signed, amendment.  The principal document is stated to be a will and it is clear from an annotation on its face that the handwritten amendment is supposed to form part of it.

[6]      It does not comply with s 11.  That section requires the will to be witnessed by two witnesses in a prescribed manner.  The draft will is not witnessed at all.  The amendment is witnessed by only one witness.

[7]      The document came into existence in New Zealand.

[8]      The  evidence  of  Lim  Poon’s  lawyer,  Mr  Rowan,  satisfies  me  that  the document reflects his testamentary intentions.  He explains that he prepared the draft will in September 2014 but that his client did not wish to proceed at that time. Lim Poon  met  with  Mr  Rowan  again  on  12  October  2015.    At  that  meeting, Lim Poon provided the amended copy of the draft will, which was signed and dated

20 September 2015, and had the handwritten note on it referring to the handwritten amendment, which made changes to the beneficiaries’ shares in the residue.  That handwritten amendment was also signed 20 September, and witnessed.

[9]      Mr Rowan deposed that Lim Poon instructed him to amend the will in accordance with the changes and that he (Mr Rowan) did so.  He planned to meet with his client again on 27 October 2015 but Lim Poon died the day before, on

26 October 2015.

[10]     It follows that the requirements of s 14 are satisfied.

[11]     I order accordingly that the documents marked “A” and “B” and exhibited to

Mr Rowan’s affidavit dated 1 November 2016 constitute a valid will under s 14 of the Act.

Rebecca Ellis J