Re Estate of Beaumont

[2013] NZHC 2719

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2013-470-258 [2013] NZHC 2719

UNDER	Section 14 Wills Act 2007
IN THE MATTER OF	The Estate of the late GLORIA HAZEL BEAUMONT
BETWEEN	MICHAEL STANLEY BEAUMONT AND JASON ERIC BEAUMONT Applicants

Hearing:	On the papers
Counsel	O F Moorcroft for Applicants
Judgment:	18 October 2013

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

3pm on the 18th day of October 2013.

Solicitors:           Harris Tate, Solicitors, Tauranga

Re Beaumont (deceased) [2013] NZHC 2719 [18 October 2013]

[1]      This is a without notice application for an order under s 14 of the Wills

Act 2007 declaring a will valid.

[2]      The first question to determine is whether the application can properly be dealt with without notice.  All persons who would be affected by the making of the order sought must have a proper opportunity to be heard.  There is no other will, so the persons affected are those who would succeed on an intestacy. There are the five children of the deceased.  All of those children are adults and have consented to the making of the order sought.   Service on them is accordingly not necessary.   The deceased was survived by a de facto partner, who would also have a claim under the Administration Act 1969.  He has also consented to the making of the order sought. Service on the partner is therefore not necessary.   I consider that the interests of justice require the application to be determined without notice, under r 7.46 of the High Court Rules.

[3]      The deceased, to whom I refer as Mrs Beaumont, died on 14 February 2012. She was survived by a de facto partner and five adult children from her earlier marriage which had ended with the death of her husband in 2001.  She lived in Tauranga.   In December 2011 she was admitted to Tauranga Hospital due to ill health.  She was diagnosed with a very aggressive form of cancer and given four to six months to live by the doctors. She was discharged from hospital to live at home.

[4]      Sometime  in  January  2012,  her  son  Michael  visited  her  at  her  home. Mrs Beaumont told him that she did not have a will and needed to get one sorted as soon as possible.  Michael told her he would help her sort one out.  He went to a book store and purchased a will kit.  That contained a brief explanation of what is involved in making a will and included three forms, described on the contents page as “pro forma wills”.   These were for a single person, a married person who has children, and a married person who does not have children.

[5]      Michael gave the will kit to his mother, told her to read it and explained to her that she needed to think about what she wanted to happen to her property and possessions on her death.   He told her to write down what she wanted before completing a will from the will kit.  He told her once she had thought about what she

wanted in the will she should fill out one of the will forms in the will kit and then organise to have it signed, as explained in the will kit.   He spoke briefly to his mother about what she wanted in her will, because she asked for his guidance.  She said she wanted to leave all of her property to her children equally but also wanted to provide something for her partner.  Mrs Beaumont asked Michael if he would be an executor and he agreed.  He returned home to Auckland shortly after this discussion and did not see his mother complete a will.

[6]      Mrs Beaumont’s son Jason visited her at her home several weeks before her death.   During that visit she showed him the will kit which she said Michael had purchased for her.  She had begun writing down what she wanted to happen with her estate, but had got stuck and told Jason she was a little unsure of what to do and how to write the will.  He sat down and discussed with her the extent of her property and what she wanted to happen to it after her death.  Jason had often helped his mother with financial matters, especially since his father’s death in 2001.  He did not regard her request for advice on her will as unusual as she trusted him and he had regularly helped her out with financial matters.

[7]      Mrs Beaumont told Jason that she wanted to leave some money to her partner Kerry Hall from a life insurance policy she held.  She told him she wanted to leave her jewellery to her three granddaughters.   She wanted the remaining part of her money and property to be shared amongst her five sons.  She was concerned about leaving money to one son whom she said had a poor track record with money and she was concerned that if she left him too much it would be spent unwisely.  She told Jason she would think about leaving him a set sum of money.  He did not discuss a figure with her.  He told her that it was all to be her decision and he did not want to influence her in any way.

[8]      While Jason was present, Mrs Beaumont filled in one of the will forms in the will kit and showed it to him.   The form used was the form for a single person. Mrs Beaumont told Jason that she was happy with the content of the will but did not like the way it looked. He told her that he could help her finalise it and could change the way it looked if she wanted.  He did not believe that she was referring to the bequests contained in the will when she said this but was simply referring to the

visual appeal of the document itself.  Jason thought she may have wanted the will typed out.  He said to her that he could help change the way it looked but it needed to be finalised as soon as possible.  He left to go home to Auckland before he could help his mother organise to have the will signed and witnessed.  His mother passed away a week later on 14 February 2012.

[9]      After her death, the document now sought to be validated was found in

Mrs Beaumont’s bedside drawer.

[10]     The power to validate a will given by s 14 of the Wills Act 2007 has been a most valuable and beneficial addition to the powers of the Court to ensure that the clearly expressed testamentary intentions of a deceased person are not frustrated by deficiencies in the formal requirements for execution.  The statutory precondition in s 14(2) to the exercise of the power is that the Court must be satisfied that the document expresses the deceased person’s testamentary intentions.  That is the issue which must be determined here.

[11]     A fundamental principle underpinning the law governing wills is that great care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so.  That care is necessary because a will operates only after its maker has died.1   The requirements as to the formalities of execution of a will are a consequence of this fundamental principle.  Under s 14(2), the inquiry which that principle requires is focussed on the will-maker’s intentions, rather than

on the formal steps taken to implement those intentions.  That change of focus does not diminish the importance of the fundamental principle.  In considering the s 14(2) question, great care must be taken in determining whether the draft will is genuinely an expression of the deceased’s intention.

[12]     Under s 14(2), the Court must be satisfied that the document expresses the

deceased person’s testamentary intentions.   The use of the phrase “is satisfied” is

indicative of a state where the Court on the evidence comes to a judicial decision.

1      For a helpful discussion, see Nicola Peart “Where There is a Will, There is a Way - A New Wills

Act for New Zealand” (2007) 15 Wai L Rev 26.

There is no need or justification for adding an adverbial qualification.2   In reaching a conclusion as to whether it is satisfied under s 14(2), the Court must have regard to evidence, as s 14(3) makes clear.  The standard of proof to be applied in considering that evidence is the civil standard, the balance of probabilities.  That is not a fixed standard.  As the majority of the Supreme Court said in Z v Dental Complaints Assessment Committee:3

Despite  these  exceptions,  the  rule  that  a  flexible  approach  is  taken  to applying the civil standard of proof where there are grave allegations in civil proceedings remains generally applicable in England. There is accordingly a single civil standard, the balance of probabilities, which is applied flexibly according to the seriousness of matters to be proved and the consequences of proving them. We are satisfied that the rule is long established, sound in principle and that, in general, it should continue to apply to civil proceedings in New Zealand.

[13]     In the case of validation of a will, a finding that the Court is satisfied will result in a final distribution of the estate in accordance with the document under consideration. The rights and interests of those who would inherit if the document is not validated will be affected.4    The potential consequences of the order, and the importance of the fundamental principle to which I have referred, indicate the seriousness of the matters to be proved and the consequences of proving them.

[14]     In   assessing   whether   the   document   here   expresses   Mrs   Beaumont’s testamentary intentions, I have regard first to the discussions with her sons.    I consider that it is clear from what she said to them that she did wish to put her affairs in order before her death, which she knew was imminent, although it seems to have come rather earlier than the prognosis she was given suggested.  Mrs Beaumont took some steps preparatory to making a will.  The suggestion that she made a will originated from Michael, who said that he “had been nagging my mother to sort a will for some time”.  He purchased the will kit for her.  She also took some steps to formulate her testamentary intentions.  She asked Michael to be her executor, and

said that she wanted to leave all of her property to her children equally, but also

2      R v White (David) [1988] 1 NZLR 264 (CA) at 268.

3      Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [112] (footnotes omitted).

4      In the Estate of Schwartzkopff [2006] SASC 131, (2006) 94 SASR 465 at 474-475.

wanted to provide something for her partner Kerry.  She had not, by the time of her

discussion with Michael, decided what that “something” should be.

[15]     In her discussions with Jason, Mrs Beaumont did discuss her intentions, and she filled in the form in his presence. She did not however sign the will at that stage.

[16]     I must consider whether, in these circumstances, the unsigned will meets the criteria in s 14.  An unsigned document has been held to meet the requirements of s 14 in a number of cases.

[17]     In Re Hickford (deceased), I held that a draft will prepared by a solicitor, but which had not been signed, was valid.5    That conclusion was based on evidence which I accepted as establishing that the deceased thought that he had made an effective will, and that the reason the document was unsigned was a mistaken view that everything necessary had been done, and that the will was effective.

[18]     In Gladwin v Public Trust, Woolford J declared that a document, which was a draft will prepared by solicitors on which the deceased had made handwritten alterations by inserting the middle names of beneficiaries, was valid.6   He held that the deceased had intended to sign the draft will document in that form but because of her chaotic domestic arrangements had never followed through with that intention.

[19]     In Re Brundall (deceased), Allan J declared valid a draft will which had been prepared by the deceased’s solicitor in accordance with her instructions but which was not signed before her death.7. Allan J reviewed a number of authorities. He was satisfied on the evidence that the deceased would have executed the will had it not been for her sudden death, and that the document accurately reflected her testamentary intentions at the time of her death.

[20]     In Re Estate of Murray, I declared valid as a will a document in handwriting on a pre-prepared will form.8    That document had been witnessed, but not signed.

5      Re Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009.

6      Gladwin v Public Trust [2011] 3 NZLR 566 (HC).

7      Re Brundall (deceased) [2011] 3 NZLR 528 (HC).

8      Re Estate of Murray [2012] 2 NZLR 546 (HC).

There was evidence from the witness that when the deceased requested that she witness the document she asked him if he had signed it and he said yes.

[21]     In this case, it is clear that Mrs Beaumont knew that the document was not complete, and that it had to be signed.  The essential question is whether I can be satisfied that despite the fact that she had not signed it, the document did represent her testamentary intentions.  I must be satisfied that the doubts which Mrs Beaumont expressed to Jason about the will extended only to its appearance and not to its content.  If the reason that she did not sign the will was that she was still considering her testamentary wishes, the precondition in s 14(2) would not be satisfied.

[22]     I have entertained some doubt on this question.  I sought further submissions from counsel on the point, and have given the matter very careful consideration. These submissions have taken me to the point that I consider that I am able to draw the inference that Mrs Beaumont’s failure to sign the will did not indicate that she had not reached a final decision as to her testamentary intentions.  The terms of the document are consistent with the wishes that she had earlier expressed to both her sons.  I am able to conclude, to the standard which I have described at [12], that the document does represent her testamentary intentions.

[23]     There will be an order declaring valid as the will of Mrs Beaumont the original of the document annexed as exhibit ‘C’ to the affidavit of Michael Stanley Beaumont sworn on 16 August 2012.

“A D MacKenzie J”