Potez

[2017] NZHC 3296

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-003001 [2017] NZHC 3296

IN THE MATTER OF

The Wills Act 2007

AND

IN THE ESTATE OF

TIMOTHY DARRYL HEMINGWAY

REBECCA CAROLINE POTEZ AND JEREMY DANA HEMINGWAY Applicants

Hearing:	On the papers
Judgment:	22 December 2017

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 22 December 2017 at 12.30pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:

Quinn Law, Auckland

POTEZ AND HEMINGWAY [2017] NZHC 3296 [22 December 2017]

Introduction

[1]      The applicants in this matter – Rebecca Caroline Potez and Jeremy Dana Hemingway – apply for an order pursuant to s 14 of the Wills Act 2007, declaring a document to be the valid will of the deceased – Timothy Darryl Hemingway.

[2]      The deceased died on 30 June 2017, leaving a document entitled “Last Will”, which had been prepared on his direct instructions by his solicitor. He had signed and dated the document, and it was witnessed, but only by one witness.

[3]      The document said to be the will appoints Ms Potez and Mr Hemingway as the deceased’s executors and trustees.

Analysis

[4]      Section 14 of the Wills Act provides as follows:

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.

[5]      As can be seen, there are four requirements before the Court can make an order under the section:

(a)       there must be a document;

(b)      the document must appear to be a will;

(c)       the document must not comply with s 11; and

(d)the Court must be satisfied that the document expresses the deceased’s testamentary intentions.

[6]      Here, there is clearly a document.

[7]      The document appears to be a will.  It was drafted by a solicitor, it is clearly stated and it is expressed to be a testamentary disposition by the deceased.

[8]      The document does not comply with s 11. Inter alia, s 11 requires that the will- maker must sign the document, or direct another person to do so in his or her presence. At least two witnesses must be together in the will-maker’s presence when the will is signed, and each must sign the document at the same time.  Here, that did not occur.

[9]      I  am  satisfied  that  the  document  expresses  the  deceased’s  testamentary intentions.

[10]     The deceased’s solicitor – Ms Quinn – has filed an affidavit. The deceased was gravely ill.  Ms Quinn received his instructions by email on Saturday 20 May 2017. She prepared the will on the same day.  She sent the will by email to the deceased on that day, and on the following day – a Sunday – she spoke to the deceased, and gave instructions on its execution.  She confirmed those instructions on the Monday to Ms Potez.   She did not discovery that the will had not been correctly witnessed until sometime later, when she received a copy from Mr Jeremy Hemingway.  Inquiries have been made, and it does not seem that the deceased made either an earlier or later will.

[11]     The witness to the will – Ms St George – has also filed an affidavit, explaining the circumstances in which the will was signed.  It was signed in hospital, when the deceased was ill.  The deceased signed the document and handed it to her, telling her

that it was his will, and that he was getting his affairs in order.  The deceased signed the will in front of Ms St George and Ms Potez, and Ms St George is sure that he intended the signing to be the valid execution of his will.

[12]     Ms Potez says much the same thing.  She was present in the hospital room when the deceased signed the will. She knew that she was not able to witness it herself, because she was an executor and beneficiary of the deceased’s estate.   She had received a text from Ms Quinn giving her instructions on how the will should be signed, but she understandably says that her focus was on caring for the deceased, and that she was distraught because he was gravely ill at the time. She says that as a result, she did not remember then that two witnesses were required. She had not taken in the full meaning of the text message she had received from Ms Quinn as to the witnessing requirements.

[13]     Clearly the document expresses the deceased’s testamentary intentions.  The circumstances in which it came to be witnessed by only one witness are readily understandable. I am satisfied that it is appropriate to make an order declaring that the document signed at Invercargill on 23 May 2017, is the valid will and testament of the

late Timothy Darryl Hemingway.  I so order.

Wylie J