Re Campbell (deceased)
[2014] NZHC 1632
•11 July 2014
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CIV-2013-443-259 [2014] NZHC 1632
IN THE MATTER OF the Wills Act 2007 and the Administration
Act 1969
IN THE MATTER OF
the Estate of Norman Rob Campbell
Hearing: On the papers Counsel:
G F Kelly for applicants
S Kinsler as amicus curiaeJudgment:
11 July 2014
JUDGMENT OF MACKENZIE J
I direct that the delivery time of this judgment is
3 pm on the 11th day of July 2014.
Solicitors: Welsh McCarthy, Hawera
Crown Law Office, Wellington
Re Campbell (deceased) [2014] NZHC 1632 [11 July 2014]
[1] This is a without notice application for an order under s 14 of the Wills Act
2007 (the Act) declaring a document valid as the will of the deceased, Mr Campbell.
[2] There are two preliminary procedural issues. The first is the appropriate procedure. There is no specific provision in the High Court Rules (the Rules) for applications under s 14 of the Act. Where the application is not contested, the nature of the proceeding is such that the procedure under pt 19 of the Rules may be appropriate. There is some analogy with the type of proceedings in rr 19.2 and 19.4. Under r 19.5, the Court may in the interests of justice permit any proceeding not mentioned in those rules to be commenced by originating application under that part. A practice of dealing with such applications under pt 19 is apparent from the case law. I consider that procedure is appropriate in this case. I direct, under r 19.5, that it be dealt with under pt 19, and the application is to be treated as an originating application under that part.
[3] The second preliminary issue is that I must determine under r 7.46(2) whether this application can properly be dealt with without notice. The persons who might be affected by the making of the order sought are those who would benefit on the intestacy which would result if the will is not declared valid. All of those persons are aware of the application and have consented to the order sought. In those circumstances, I am satisfied, under r 7.46(3) of the Rules, that the interests of justice require the application to be determined without notice.
[4] Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills. Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode of expression did not comply with the formalities that the law required. Section 14 has been very beneficial in avoiding that outcome. Its utility is demonstrated by the fact that it has been invoked in over 80 cases since 2007.
[5] The experience of this Court has been that, for the most part, the families and other beneficiaries who would be affected by the validation of a document have
acknowledged the justice of giving effect to the clearly but informally expressed intentions of the deceased, by consenting to, or at least not opposing, the validation. As a consequence, a considerable body of case law has built up from decisions by judges on uncontested applications, without the benefit, normally inherent in the adversary system of litigation, of the assistance of submissions from counsel on both sides of the argument.
[6] This case has some features which prompted me to appoint the Solicitor- General as amicus, so that full argument could be presented. As a consequence of that appointment, I now have the benefit of full submissions from Mr Kelly, counsel for the applicant and Mr Kinsler, as amicus. I express my gratitude to counsel for the careful and comprehensive nature of their submissions, which I have found of very considerable assistance.
[7] The circumstances surrounding the preparation of the document sought to be validated are set out in the affidavits of Mr Edmondston, and Mr Dallas, who acted for Mr Campbell as solicitor and chartered accountant respectively. Mr Campbell consulted Mr Edmondston in October 2012 to prepare a will. He was unmarried and had no de facto partner or children. He instructed Mr Edmondston that on his death he wanted to assist his business associate Mr Green, who had been a loyal employee for a number of years, to take over his business, which was run by a company in which Mr Campbell owned 90 of the 100 shares and Mr Green the remaining
10 shares. The essence of Mr Campbell’s instructions were that Mr Green was to have an option to purchase the shares and the land on which the company operated, on favourable terms, and the residue of the estate was to be left to Mr Campbell’s siblings. Mr Edmondston prepared a draft will in accordance with those instructions and sent it to Mr Campbell on 8 October 2012. Mr Edmondston also telephoned Mr Campbell that day to discuss a number of matters in relation to the will which Mr Campbell needed to decide. Mr Edmondston did not hear again from Mr Campbell himself.
[8] Mr Dallas met with Mr Campbell on 23 October 2012. They went over the draft will in detail. Mr Dallas pointed out that the company owed a substantial debt to Mr Campbell. They discussed it and Mr Campbell decided that the best course
was to leave part of his land, and other bequests, to his siblings and the residue of his estate to Mr Green. Mr Dallas raised with Mr Campbell what his family might think about that, but Mr Campbell was not overly concerned. On 26 October 2012, Mr Dallas advised Mr Edmondston of these discussions, and conveyed to him the changes which Mr Campbell wanted. Mr Edmondston obtained from Mr Dallas in that discussion a clear understanding of the changes that were needed. They arranged that both Mr Edmondston and Mr Dallas would see Mr Campbell in the week commencing 29 October 2012 to complete the will. Mr Edmondston prepared a further draft in accordance with his discussions with Mr Dallas. He intended to show that to Mr Campbell and discuss it with him when he and Mr Dallas met with Mr Campbell. Unfortunately, Mr Campbell died on 28 October 2012 before that discussion could take place and without having seen the second draft of his will.
[9] The document now sought to be declared valid is the second draft will prepared by Mr Edmondston. Section 14 of the Act provides:
(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.
[10] The precondition to the exercise of the Court’s validation power is that there is a document. That is defined in s 6 to mean any material on which there is writing. That is clearly met here.
[11] That document must meet the three requirements in s 14(1). The first is that it appears to be a will. From the cases in which the section has been applied, it emerges that this requirement is concerned with the content of the document and what it conveys, rather than its form. As well as documents which have the physical form of a will, such as draft wills and unsigned or wrongly signed wills, documents which do not have a form customarily expected of a will have been accepted as meeting this requirement. Informal documents which have been validated include
documents which the deceased has prepared, such as a suicide note.1 They also
include documents which the deceased has not prepared, such as a solicitor’s file note of instructions.2 The essential inquiry, under s 14(1)(a), is whether the document does any or all of the things described in the definition of the word “will” in s 8 of the Act. The document sought to be declared valid here meets that requirement, in that it was in a form suitable for signature.
[12] The second requirement is that the document does not comply with s 11, which prescribes the requirements for the validity of wills. The requirement not met in this case is in s 11(2); that the will must be signed and witnessed in the prescribed manner. The absence of any signature means that the will does not comply with s 11. I observe that the absence of a signature does not prevent the document from meeting the first requirement, that it appears to be a will. The cases in which s 14 has been applied establish that the absence of signature by the deceased person does not prevent the document from appearing to be a will under s 14(1)(a).
[13] The third requirement is that the document came into existence in or out of New Zealand. That makes it clear that there is no territorial limitation on the application of s 14.
[14] The gateway provisions in s 14(1) are clearly satisfied in this case.
[15] The issue to be determined by the Court is whether the document expresses
the deceased person’s testamentary intentions. That is to be determined by a
consideration of all of the circumstances, including those set out in s 14(3). The
1 Re MacNeil (2009) 10 NZCPR 770 (HC).
2 Re Taigel [2014] NZHC 844.
matters listed in subs (3) are not exhaustive. The Court is not, by the terms of the subsection, restricted to those considerations. Any evidence which may assist to determine whether the document expresses the deceased person’s testamentary intentions may be taken into account. The evidence which may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant consideration. Evidence of the signing and witnessing of the document may, as in this case, include evidence as to why the document was not signed or witnessed at all.
[16] There are no clear rules dictating the circumstances in which a Court may be satisfied that a purported will expresses a deceased’s testamentary intentions. Mr Kinsler refers to a very helpful article by Professor Peart, written before the Act came into operation. She observed:3
The test in s 14 is not an objective one. It is specific to the particular deceased person. No two cases are necessarily the same. The wills may suffer from the same defects, but in the one case the Court may conclude that the document does express the deceased’s testamentary intentions, whereas in the other it does not. The Court must be satisfied to the ordinary civil standard of proof that the evidence as a whole, including any evidence of the will-maker’s statements and testamentary intentions, shows that the document expresses the deceased’s testamentary intentions.
[17] Mr Kinsler has helpfully researched the applications under s 14 since it came into force. He advises that there have been approximately 80 such applications. In all but four cases, the document concerned has been declared valid. In two of those, s 14 could not be invoked, because the relevant documents predated the coming into force of the Act.4 In only two cases has an application been refused.5 Because the question whether a document expresses the deceased person’s testamentary intentions is case specific and no two cases are the same, it is not appropriate to attach any particular significance to those numbers. The preponderance of successful applications does however indicate that the evidential burden on a s 14
applicant is not subject to a high threshold.
3 Nicola Peart “Where there is a will there is a way” (2007) 15 Waikato L Rev 26 at 35.
4 Section 40(2)(k) of the Act (which has since been repealed) precluded the invocation of s 14 for wills made before 1 November 2007.
5 Re Estate of Hughes [2014] NZHC 710; White v White [2014] NZHC 865.
[18] The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will, or on an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which would otherwise occur to take place. The preponderance of successful applications suggests that this Court recognises it as appropriate to give effect to the contents of the document in preference to the disposition, which the deceased person has, by the document, shown a wish should not apply.
[19] With those general observations, I turn to the circumstances of this case. There are two matters which initially gave me cause for some hesitation as to whether the Court can be satisfied that the second draft will prepared by Mr Edmondston did express Mr Campbell’s testamentary intentions. The first is that he had never seen that draft. In appointing counsel as amicus, I drew attention to a decision of the Supreme Court of South Australia in In the Estate of Schwartzkopff.
There, Gray J said:6
[52] It is clear from a number of the authorities discussed above that a line should be drawn between a draft will that has never been seen or approved by the testator and a final will. …
[20] Mr Kelly’s researches have revealed that there are at least nine cases decided under s 14 where a draft will has not been seen or specifically approved by the deceased.7 That number of cases suggests that under New Zealand law there is not a distinction to be drawn between documents that have never been seen or approved, and documents which have been seen by the deceased, although not signed. I consider that it is not appropriate to draw such a distinction. It is not appropriate to
create different categories of documents, and to require different levels of proof
6 In the Estate of Schwartzkopff [2006] SASC 131, (2006) 94 SASR 465.
7 Re Osborne [2012] NZHC 1846; Re Fraser HC Napier CIV-2011-441-700, 20 December 2011;
Re Brundall (deceased) [2011] 3 NZLR 528 (HC); Re Brown HC Auckland CIV-2010-404-6328,
13 October 2010; Re Irvine HC Whangarei CIV-2011-488-677, 26 October 2011; Re Rowell [2012] NZHC 1823; Re Minkhorst; Livingston v Livingston [2013] NZHC 2606; Re Ng [2012] NZHC 2914; Re Taigel, above n 2.
before the Court is satisfied about the deceased person’s testamentary intentions. Each case must be considered individually on its own circumstances.
[21] Mr Kelly draws attention to some differences between the South Australian legislation and the New Zealand Act, which may be relevant to the distinction made in In the Estate of Schwartzkopff between a draft will or other document which the deceased person has not seen and a document authored or in some other way approved by that person.8 One of those differences is that the South Australian legislation originally required proof “beyond reasonable doubt” to satisfy the Court that the document represented the deceased person’s testamentary intentions. That requirement has been removed, but Gray J held the removal of those words did not
lower the burden of proof to the civil standard of “on the balance of probabilities”. He held that a standard of proof higher than the mere preponderance standard was required (although he also considered the case, in the alternative, on the ordinary civil onus).
[22] I do not discern from the words of s 14, construed in accordance with its purpose, or from the authorities in which s 14 has been applied, an indication that the satisfaction of the Court that the document expresses the deceased person’s testamentary intentions must be established on the application of a higher standard of proof than the ordinary balance of probabilities. It has been said by this Court that there must be cogent evidence that the document reflects the deceased person’s
testamentary intentions.9 The need for cogent evidence is inherent in the
requirement that the Court must be satisified that the document expresses those intentions. But those statements by this Court do not imply that, in reaching the required state of satisfaction, the Court is to apply a higher standard of proof than the ordinary civil standard. As I have observed, the existence of the document sought to be validated generally indicates the wish of the deceased to depart from the disposition of the estate which would otherwise apply. It is therefore not appropriate
to apply a higher than normal standard of proof in departing from that disposition.
8 In the Estate of Schwartzkopff, above n 6.
9 Re Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009; Gladwin v Public Trust
[2011] 3 NZLR 566 (HC).
The Court may properly be satisfied, by evidence meeting the ordinary civil standard
of proof, that the deceased person’s intentions are expressed in the document.
[23] The second factor which initially gave me cause for hesitation in this case is that the instructions were not conveyed to Mr Edmondston by Mr Campbell directly, but through Mr Dallas. In the light of counsel’s submissions, and on full consideration, I do not find that an impediment to being satisfied that the second draft will accurately expresses Mr Campbell’s intentions. The fact that Mr Campbell did not see the draft will is not a bar to its being treated as a document to which s 14 applies. It should not be a bar to a conclusion that it expresses his testamentary intentions. The question to consider is whether, despite any evidence of confirmation from Mr Campbell directly that the draft will accurately reflects his instructions, the Court can be satisfied that it does so.
[24] The circumstances do not raise a doubt that Mr Campbell’s instructions were accurately conveyed. Mr Dallas was Mr Campbell’s accountant and he specifically discussed the first draft will with Mr Campbell. He obtained from Mr Campbell the details of his testamentary intentions, to the extent that those differed from the first draft will. He did so with sufficient precision that he was able to convey those instructions to Mr Edmondston, sufficiently clearly that Mr Edmondston was able to amend the draft will and prepare the second draft which is now sought to be validated. In summary there is no reason to suspect that Mr Campbell’s instructions may not have been accurately conveyed to Mr Edmondston. The circumstances suggest the contrary. There is also evidence, from Mr Campbell’s brother, and from the person appointed a co-executor with Mr Dallas, of discussions they each had with Mr Campbell in which he expressed his wishes to them, in general terms which are consistent with the dispositions in the document.
[25] For these reasons, I am satisfied that the document sought to be validated does express Mr Campbell’s testamentary intentions. There will be an order
declaring valid as the last will of Mr Campbell the document annexed to the draft order filed with the application.
“A D MacKenzie J”
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