Re Crawford (deceased)

[2014] NZHC 609

For a Court ready (fee required) version please follow this link

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-10934 [2014] NZHC 609

In the Estate of                  CLIVE DOUGLAS CRAWFORD (DECEASED)

Hearing:	On the papers
Counsel:	M J Wenley
Judgment:	28 March 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

3 pm on the 28th day of March 2014.

Solicitors:           Willis Toomey Robinson Scannell Hardy, Napier

Re Crawford (deceased) [2014] NZHC 609 [28 March 2014]

[1]      This is an application under rr 27.14 and 2.11 of the High Court Rules for review of a decision by the Registrar on an application for probate in common form.

[2]      Probate is sought of the will of the deceased dated 5 February 2009.   The document for which the application is made is not the original will.   It is an electronically scanned copy of the original will.

[3]      The affidavit evidence is that the original will was prepared by the deceased’s solicitor.   Following its execution on 5 February 2009 it was placed in the firm’s deeds system for safe custody.  After the death of the deceased on 27 January 2013 a file for the administration of the estate was opened by the firm.  The original will was taken out of safe custody in the deeds system and placed on the file.  At that time, it appeared that there were no assets in the estate that would require a grant of probate.   The main asset of the deceased was the family home which was jointly owned and passed by survivorship.  That transmission was completed.  The file and the will were electronically scanned and stored.  Both the file and the original will were then destroyed.  Subsequently, it has transpired that probate is necessary to deal with an insurance policy.  Application was made for a grant of probate of a copy of the will, printed from the electronically stored copy of the original will.

[4]      The Registrar issued a minute dated 13 January 2014 which concluded:

The Registrar in considering an application for probate has to be provided with an original will, and if that is not forthcoming then the appropriate application is one of “lost (or destroyed) will”, in so doing meeting the criteria which is set out in Dobbie (5th ed) at Chapter 10.

For that reason I am not prepared to consider this application, and am of the opinion  counsel  should  make  a  new  application  in  accordance  with Chapter 10 Dobbie.

[5]      It seems that the solicitor for the applicant questioned that decision, because the Registrar issued a subsequent minute dated 12 February 2014 which said:

I  confirm  the  final  paragraph  of  my  minute  of  13 January  2014.    The application  should be filed with appropriate evidence and undertaking from the applicant.

[6]      Following that minute, the present application for review of the Registrar’s decision was filed.

[7]      Part 27 of the High Court Rules deals with the grant of probate of a will.  The will for which probate is granted is the physical document actually signed by the will-maker and the witnesses.  There is a well established practice to deal with cases where probate cannot be granted of the will itself, because the original document is not available.   That practice is described in chapter 10 of Dobbie’s Probate and

Administration Practice (Dobbie).1

[8]      In the present case, the applicant, in submitting an application for probate which did not follow the practice described in chapter 10, relied on r 1.3 of the High Court Rules and ss 25, 26 and 32 of the Electronic Transactions Act 2002.   The Registrar considered that those provisions did not avoid the need for an application in accordance with the usual practice in chapter 10.  That conclusion is expressed in his two minutes.

[9]      Rule 1.3 of the High Court Rules defines the word “document”, when used in the rules, as including information electronically recorded or stored, and information derived from that information.  That definition has no relevance to the present case. The relevant rules in Part 27 do not use the word “document”.   They refer to a “will”.  That word is defined in r 27.2, by reference to the definition in s 8 of the Wills Act 2007.  That definition uses the word “document”.  However, the context of the Wills Act makes it clear that the document referred to is the original document. Rule 1.3  of  the  High  Court  Rules  cannot  be  invoked  to  extend  the  Wills  Act definition to an electronically stored copy of the original document.  The definition in r 1.3 does not have the effect of deeming information about the contents of the will which is electronically recorded or stored to be a “will” for the purposes of Part 27.

[10]     Section 25   of   the   Electronic   Transactions  Act   provides   that   a   legal requirement  to  retain  information  that  is  in  paper  form  is  met  by  retaining  an

1      J Earles, WLB Douglas, C Kelly, and G Kelly Dobbie’s Probate and Administration Practice

(5th ed, LexisNexis, Wellington, 2008).

electronic form of the information, in certain circumstances.  The need to produce an original will before probate can be granted, or administration of the estate without probate can be carried out, means that a person who is entrusted with the custody of a will must retain the original document.   That is not a requirement to retain information in paper form.  It is a requirement to retain the original will.  Section 25 has no application.  For similar reasons, s 26 does not apply.  Safe custody of a will does not entail the retention of information that is in electronic form.

[11]     Section 32  of  the  Electronic  Transactions  Act  deals  with  originals.    It provides that a legal requirement to compare a document with an original document may be met by comparing that document with an electronic form of the original document, if the electronic form reliably assures the maintenance of the integrity of the document.   In the case of probate of a will, what is required is the original document,  not  a  compared  copy  of  the  original  document.    Section 32  has  no application.

[12]     There are sound reasons, which the Registrar refers to in his memorandum, for  the  requirement  that  the  original  document  should  be  the  subject  of  the application for grant of probate.   Inspection of the signatures is important.   The condition of the will itself is important.  It can indicate, for example, whether there is a possibility that pages may have been removed or added, or that there may have been something attached to the will.   These are just examples.   There are other matters which can properly be checked only by reference to the original will.  They require inspection of the original will by the Registrar in the process of examining and determining an application for grant.

[13]     The practice which is described in chapter 10 of Dobbie provides for cases where the original will is not available.  That practice must be followed where the application involves a copy of the original will.  The availability of a scanned copy of the will does not dispense with the need to follow that practice.

[14]     The Registrar was therefore correct to require that a new application be made in accordance with the practice described in chapter 10 of Dobbie for a lost will. The application for review of the Registrar’s decision is accordingly dismissed.

[15]     In his memorandum in support of the present application for review, counsel for the applicant submits that the evidence presently before the Court meets the requirements of the practice described in chapter 10.  I express no view on the extent of the evidence which will be necessary in this case.   That is a matter for the Registrar.   A formal application in accordance with chapter 10 should be made, supported by such evidence as counsel considers relevant.

[16]     Some further observations are appropriate.   First, it is desirable to restate clearly and unequivocally the basic principle that unrevoked wills should not be deliberately destroyed by those entrusted with their safe custody.

[17]     Second, the Court can and does take account of technological developments and their possible effect on probate practice.   An example of this, in respect of technological developments which have since been superseded, is Re Jaray.2   As the Court   there   observed,   technological   developments   must   always   be   under surveillance.   Preservation of the integrity of the original will is at the heart of probate practice.   Its importance is such that technological developments have not

reached a point where probate practice should be adapted to treat a copy of a will made by electronic means as the equivalent of the original will.  It would be unwise to speculate whether technological developments will ever do so.

“A D MacKenzie J”

2      Re Jaray [1978] 2 NZLR 26 (SC).