Re Brundall (deceased) HC Auckland CIV-2011-404-3742

[2011] NZHC 2123

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-3742

UNDER  Section 14 Wills Act 2007

IN THE MATTER OF     the Estate of the late JULIA DIANE BRUNDALL of Auckland, Retired

BETWEEN  DAVID JOHN HUGHES AND MICHAEL JOHN FOLEY

Applicants

Hearing:         On the papers

Counsel:         R O Parmenter for Applicants

Judgment:      6 July 2011

JUDGMENT OF ALLAN J

This judgment was delivered by

The Hon. Justice Allan

at 10 am on Wednesday 6 July 2011 pursuant to Rule 11.5 of the High Court Rules

……………………………………………..

Registrar/Deputy Registrar

Solicitors:

Foley & Hughes (D J Hughes) P O Box 6829 Auckland 1141

Email:   [email protected]

Counsel:

R O Parmenter, P O Box 1052 Auckland 1140

Email:   [email protected]

Case Officer:        [email protected]

DAVID JOHN HUGHES AND MICHAEL JOHN FOLEY HC AK CIV-2011-404-3742 [6 July 2011]

[1]      The late Julia Diane Brundall died at Auckland on 2 May 2011 at the age of

80.  She left a last valid will dated 28 September 2010 (the earlier will) and a later unexecuted draft will (the later will).  In this application the executors named in the later will seek a declaration pursuant to s 14 of the Wills Act 2007 (the Act) declaring the later will to be valid.  There is no opposition to the making of such an order.  No other person has been served with any Court papers.  The applicants seek an order pursuant to the High Court Rules r 19.5 permitting them to proceed by way of originating application, without notice.

Factual background

[2]      The application is supported by the affidavit of Mr D J Hughes, an Auckland solicitor.   He had been Ms Brundall’s lawyer for many years prior to her death. Ms Brundall was “near enough to blind” but still lived in her home in Mount Roskill where she was visited from time to time by Mr Hughes in connection with her legal affairs.   Ms Brundall never married and had no children.   Her parents are both deceased but she had a brother and a network of friends who visited and looked out for her.

[3]      The estate has a net value of approximately $350,000 and consists principally of her home unit which is subject to a Lifetime Reverse Mortgage.

[4]      Mr  Hughes  prepared  the  earlier  will  on  Ms  Brundall’s  instructions  and attended her upon execution.  There were seven cash bequests.  The residue was to go to the National Collective of Independent Women’s Refuges at Wellington (the Women’s Refuge).

[5]      On 22 March 2011, Ms Brundall wrote to Mr Hughes’ firm to advise that one of the beneficiaries in the earlier will had died in December 2010 and to ask that the amount of the legacy be left instead to two named friends of Ms Brundall.   Mr Hughes says that although the letter could not have been written by Ms Brundall herself by reason of her poor eyesight, he recognised Ms Brundall’s signature and

inferred that the letter had been written by a Ms Connell who was a friend of

Ms Brundall and a beneficiary under the earlier will.

[6]      Ms Brundall’s letter was received in Mr Hughes’ office on Friday, 25 March

2011.

[7]      On  Monday,  28  March  2011,  Mr  Hughes  telephoned  Ms  Brundall.  She confirmed that the letter set out her wishes and he immediately prepared a draft will which  reflected  her  new  instructions.    Mr  Hughes  then  became  unwell  with influenza,  which  lingered  for  some  time.    He  postponed  his  planned  visit  to Ms Brundall until he was satisfied that he was no longer infectious.

[8]      On  27  April  2011,  he  spoke  to  Ms  Brundall  once  more  by  telephone, explaining  the  delay  and  advising  that  he  would  visit  Ms  Brundall  early  the following week.  At that time Ms Brundall indicated that her brother had now died, and that she wanted her nephew to have his father’s share of her estate. Accordingly, Mr Hughes prepared a further draft will under which Ms Brundall’s nephew was to receive a legacy of $25,000.  Under the earlier will his legacy was $5,000, while that of his father (Ms Brundall’s brother) was to be $20,000.   The amended draft will prepared by Mr Hughes combined the legacies, as Ms Brundall directed.

[9]      On Monday, 2 May 2011, Ms Brundall was found unconscious on the floor of her unit.    She died at Auckland Hospital  later  that  day.    Mr Hughes  says  that throughout each of the conversations he conducted with Ms Brundall on 28 March and 27 April 2011 respectively Ms Brundall was perfectly lucid, leaving him in no doubt that she knew precisely what she wanted to achieve.   But her sudden death prevented her from executing the later will.

Jurisdiction

[10]     A valid will must be in writing.1   It must also be signed by the will-maker and witnessed by at least two witnesses.2   A will that does not comply with s 11 will be

1 Wills Act 2007, s 11(1).

2 Wills Act 2007, ss 11(3) and (4).

invalid unless the court makes a declaration of validity pursuant to s 14. That section 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]     As appears from s 14(3), the Court may consider, in determining whether to make a declaration, a number of factors.   They include the document itself, any evidence as  to  the signing and  witnessing of the document,  evidence as  to  the testamentary intentions of the deceased person and evidence as to the statements of that person.

[12]     This Court has on a number of occasions exercised its jurisdiction under s 14 to validate wills that did not comply with the requirements of s 11.  In Re Hickford,3

MacKenzie J  noted  that  cogent  evidence  will  be  required  of  the  deceased’s testamentary intentions before a declaration is granted.  In that case, His Honour held that a draft will posted to the deceased on 9 October 2008 was a valid will.  The deceased had received the draft the next day and had shown it to her partner.  The

draft was then left unsigned until the deceased’s death on 25 January 2009.

3 Re Hickford HC Napier CIV-2009-441-369, 13 August 2009.

[13]     In Re MacNeil,4  the deceased committed suicide on or about 21 January

2008.  A handwritten document was found next to her body. It was dated 20 January

2008.  The document was headed “This is my will and testament”.  It was signed by

the deceased but not witnessed. The Court declared the document to be a valid will.

[14]     In Re Brown,5  the Public Trustee prepared a draft will on the instructions of the  deceased.    The  Public  Trust  legal  advisor  recorded  the  instructions  of  the deceased on her computer as they were dictated in the office of the Public Trust, the deceased checking and approving the instructions so recorded.  But he died before the will could be signed and witnessed.  The Court held that the draft will was the valid last will of the deceased.

[15]     More recently, in Re Tutaki,6 Andrews J dealt with what appears to have been the first contested application under s 14.  The facts were similar to the present case. The deceased, having given telephone instructions to a solicitor, was admitted to hospital.  The draft will, prepared on the deceased’s instructions, was posted to her residence and after a delay of some days was delivered to her in hospital.  There was evidence that the deceased had opened the envelope containing the draft will while in hospital but she died suddenly without executing the document.  The only changes from an earlier valid will were those required to incorporate recent instructions from the deceased, recorded in her solicitor’s file note.  The Court held the unsigned draft will to be a valid will on the basis that the deceased would have executed it had she not died suddenly.

Discussion

[16]    I consider, first, whether this application is properly brought by way of originating application.  High Court Rule 19.5 provides that any proceeding may be brought by originating application if it is in the interests of justice to do so.  Leave is routinely granted where there is no opposing party and where the interests of other

persons could not be adversely affected by the application.

4 Re MacNeil (2009) 10 NZCPR 770 (HC).

5 Re Brown HC Auckland, CIV-2010-404-6328, 13 October 2010.

6 Re Tutaki HC Hamilton, CIV-2010-4190-1208, 13 May 2011.

[17]     I am satisfied that no person could be so adversely affected in the present case.  The legacies of the two persons who died prior to Ms Brundall’s death lapsed upon the death of the legatee in each case so their estates are not adversely affected. The substituted legatees gain a benefit if the later will is declared to be valid.  Other legatees are unaffected   The position of the residuary beneficiary, the Women’s Refuge, is not affected, because the residue of the estate remains precisely the same under each will.  Moreover, the Women’s Refuge, by its duly authorised officers, has executed a written notice formally abiding the decision of the Court and consenting to such order as the Court shall determine is appropriate.

[18]     For  the  foregoing  reasons,  there  will  be  an  order  granting  leave  to  the applicants  to  commence  and  pursue  this  proceeding  by  way  of  originating application.

[19]     I turn to the substantive application.

[20]     Mr Hughes’ evidence establishes, in my view, that Ms Brundall wished to change  her  will  for  perfectly  understandable  reasons.    Existing  legacies  having lapsed by reason of the death in each case of the legatee,  she wanted to make provision for different legatees, without disturbing the pattern of the will.  In other words, the total value of the legacies remains the same so that the value of the residuary estate remained unaltered.

[21]     The delay between preparation of the draft will and execution is explained, first, by reference to Mr Hughes’ illness and then by the late change in Ms Brundall’s instructions.  Her sudden death was totally unexpected.  There can, therefore, be no suggestion that she had changed her mind about executing the will or that she had forgotten about it.  The joint intention of Ms Brundall and Mr Hughes was that the latter would attend at Ms Brundall’s residence within a matter of days in order to attend to the execution of the will in the ordinary way.  It was the suddenness of Ms Brundall’s death that precluded execution of the later will.

[22]     To that extent, the facts are similar to those of Re Tutaki.   In that case, Andrews J considered that on the balance of probabilities the deceased’s failure to

execute her will resulted from the sudden deterioration in her health over a matter of hours. The position is similar here.  I am satisfied that Ms Brundall would have duly executed the later will had it not been for her sudden death, and also that the later will accurately reflected her testamentary intentions at the time of her death.

Result

[23]     For the foregoing reasons there will be orders:

(a)      Granting leave to the applicants to bring this application by way of originating application pursuant to High Court Rule 19.5.

(b)Declaring  the  draft  will,  appended  as  Exhibit  E  to  Mr  Hughes’ affidavit  of 9  June 2011,  to  be the valid  last  will  of Julia Diane Brundall.

[24]     I assume that the costs of the application will be met from the estate but in case there is a difficulty in this respect, costs are formally reserved.

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C J Allan J