Poynter

[2020] NZHC 3045

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000570

[2020] NZHC 3045

IN THE MATTER OF

the Wills Act 2007

AND

IN THE MATTER OF AN APPLICATION BY

KAREN JACKSON and DEBRA ASHBY

for an order that a document be declared a valid will of Robert Humphry Poynter

BETWEEN

KAREN JACKSON and DEBRA ASHBY

Applicants

Hearing:	On the papers
Appearances:	P D Sewell for Applicants
Judgment:	18 November 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 18 November 2020 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 18 November 2020

[1]                  The deceased, Robert Humphry Poynter,  died  on  25  August  2020.  His two daughters, Karen Jackson and Debra Ashby, who are named as the executors in an unsigned will of the deceased, have applied for that document to be declared his valid will pursuant to s 14 of the Wills Act 2007.

RE POYNTER [2020] NZHC 3045 [18 November 2020]

[2]The applicants have filed a short affidavit which:

(a)annexes a copy of the document which is sought to be declared to be the valid will of the deceased;

(b)confirm the identity of the deceased and the circumstances of his death on 25 August 2020.

[3]                  An affidavit is also filed by Shona Margaret Senior, a Christchurch solicitor, who was instructed by the deceased and his wife, Valerie Louise Poynter, to advise on various matters relating to their affairs, including preparing new wills.

[4]                  She confirms that the deceased  and  his  wife  each  had  valid  wills  dated 22 November 2011, but which were drafted to reflect the fact they held most of their property in mirror trusts which they had established on 4 November 1991. As the Poynters had instructed Ms Senior to wind up the trusts and transfer the trust assets to them personally as beneficiary of the trusts, they decided it was also prudent to draft new wills.

[5]                  Ms Senior’s instructions were that the wills to be on the same or similar terms and would:

(a)appoint their daughters Karen Jackson and Debra Ashby as executors;

(b)leave their personal chattels to the survivor of them, or if there was no surviving partner, then the chattels were to be disposed of in accordance with any list left with the will-makers personal papers;

(c)granted the survivor of them a life interest in the income from the residuary estate, but not the capital. The life interest was to terminate on the death of the surviving partner, or if they married or entered into a civil union or a de facto relationship;

(d)upon the termination of a life interest, the residuary estate was to be distributed equally amongst their children living at the death of the

will-maker, or, if any of the children had pre-deceased the will-maker leaving a child or children, the deceased child’s share was to be distributed to their child or children equally.

[6]                  Ms Senior then explains that she prepared draft wills on those terms on the same day that she was given the instructions and it is the deceased’s draft will which is sought to be validated. These were then emailed in draft to the deceased’s daughter, Debra Ashby, as the deceased did not use email. On the same day she received an email from Debra’s husband advising that the deceased had suffered a stroke and was in hospital. He was placed on life support while in hospital and so was unable to sign the will before his death on 25 August 2020.

[7]                  Ms Senior confirms that the persons who have a beneficial interest in the estate are:

(a)the deceased’s widow, Valerie Louise Poynter; and

(b)the deceased’s children, all of whom are adults;

(i)Karen Jackson;

(ii)Debra Ashby;

(iii)Edwin John Poynter; and

(iv)Alan Robert Poynter.

[8]                  Enquiries have been made under the Status of Children Act 1969 as to the existence of a parent or child of the deceased, in addition to those already known to her, who could claim an interest in the estate, and no such person exists.

[9]                  The application is accompanied by the consents of Valerie and the four children to the application.

Analysis

[10]              This Court may declare a document to be a valid will of a deceased person pursuant to 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.

[11]On the basis of the evidence discussed above, I am satisfied that:

(a)the applicants are the executors named in the document;

(b)the document has not been executed in the manner prescribed in s 11(4) of the Wills Act;

(c)the document expresses the deceased’s testamentary intentions; and

(d)consent from all those potentially affected by the granting of the order has been obtained.

[12]              Accordingly, pursuant to s 14(2) of the Wills Act 2007, I make an order declaring the document, a copy of which is attached to the affidavit of Karen Jackson and Debra Ashby, to be the valid will of Robert Humphry Poynter.

Solicitors:
Godfreys, Christchurch