Re Estate of Bishop

[2014] NZHC 3355

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON  REGISTRY

CIV-2014-485-11422 [2014] NZHC 3355

UNDER	The Wills Act 2007
IN THE MATTER	of the Estate of DESROE MARE BISHOP
IN THE MATTER	of an application for an Order under s 14 of the Wills Act 2007 declaring a will valid by Linda Bishop

Hearing:	On the papers
Counsel:	C M Quin
Judgement:	19 December 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

3 pm on the 19th day of December 2014.

Solicitors:           QuinLaw, New Plymouth

Re Bishop (Deceased) [2014] NZHC 3355 [19 December 2014]

[1]      This is an application for an order under s 14 of the Wills Act 2007 declaring valid as the last will of the deceased a draft will prepared in 2009 but not signed.

[2]      The  application  has  been  made  without  notice.    I  must  consider  under r 7.46(3) of the High Court Rules whether the application can properly be dealt with without notice.  The only party who will be adversely affected by the making of an order is the deceased’s former partner, Ms Brightwell, from whom he separated in

2006.  She is the executrix and sole beneficiary under the deceased’s existing will. She is aware of the proceedings and has consented to the order sought.   In those circumstances I am satisfied that the interests of justice require the application to be determined without serving notice of the application.

[3]      The deceased died on 5 September 2013.   His previous will was signed on

4 June 2002.  At that stage, he was in a de facto relationship with Ms Brightwell. There is one child of that relationship, a boy now aged 12 years.   Ms Brightwell consents to the order which is now sought.   She has received independent legal advice.  In her consent, she confirms that when the will was made, she was the de facto partner of the deceased, and that they separated in 2006 and thereafter lived separate and apart.  She also confirms that a division of their relationship property is recorded in a relationship property order dated 3 October 2006 and was settled on

7 March 2008.

[4]      Mr England, a partner in the law firm Thomas O’Neil and Co, has said in his affidavit   that   the  deceased   attended   the   firm’s   Opunake  office   without   an appointment in 2009 and advised that he wanted to update his will.   A will was drafted in his presence and an appointment was made for the following week for the deceased to attend to sign it.   The deceased did not keep that appointment and despite a number of messages being left on his cellphone he did not come back to sign it.

[5]      The essential question on this application is whether under s 14(2) of the Wills Act 2007 the Court can be satisfied that the draft will prepared by Mr England expresses the deceased’s testamentary intentions.

[6]      To  be  satisified  that  an  unsigned  draft  will  expresses  the  deceased’s testamentary intentions, this Court must consider carefully whether the failure to sign the draft might indicate a change of mind on the part of the deceased after giving instructions  for the will  to  be  drafted.   That  possibility must  be closely examined here.  The draft will was prepared in 2009.  The deceased did not die until

2013.  His failure to sign the will cannot be explained by his having been prevented from signing the will by later events.  It is necessary to look at other circumstances, to decide whether those exclude the possibility that the failure to sign the will was a deliberate decision, because of a change of mind.  Only if those other circumstances are sufficiently compelling to exclude that possibility can the Court be satisfied that the draft will reflects the testamentary wishes of the deceased.

[7]      The need for a change in the will, following the deceased’s separation from Ms Brightwell, is clear and obvious.  The 2002 will was no longer appropriate.  The draft will makes provision for the deceased’s son, who was, on the evidence, the only natural potential beneficiary.  Those facts make it unlikely that the deceased’s failure to sign the will arose from a change of testamentary intention as to who should benefit from his estate.

[8]      There is some supporting evidence for the proposition that his testamentary intentions  had  not  changed  between  2009  and  the  date  of  his  death.    There  is evidence in the affidavit of the applicant that the deceased had discussed with a friend  what  would  happen  to  his  son  in  case  anything  happened  to  him.    The deceased had replied that he would go into the care of his cousin.  She is the person appointed  as  executrix  and  guardian  in  the draft  will,  and  the applicant  in  this proceeding.   The evidence of that conversation is hearsay.   However, in the circumstances,  and  having  regard  to  the  desirability  of  avoiding  unnecessary expense,  I  admit  that  evidence  under  s 18  of  the  Evidence  Act  2006.    The circumstances relating to the statement provide reasonable assurance that the statement is reliable and I consider that undue expense would be caused if the maker of the statement were required to be a witness.

[9]      In  considering  whether  I  am  satisfied  that  the  draft  will  represents  the

deceased’s testamentary intentions, I take into account the consequence which would

follow if the will was not declared valid.   In that event, the 2002 will would be operative.   Its terms are no longer appropriate, because of the separation of the deceased and Ms Brightwell and the subsequent resolution of the property affairs between them.  Those facts satisfy me that the deceased did not have a change of mind about revoking the 2002 will.  If the draft will is declared valid, the estate will be held in trust for the person who has the strongest moral claim, indeed probably the only moral claim, on the deceased.  Those circumstances make it likely that the draft will continued to represent the testamentary intentions of the deceased until he died.

[10]     Those two matters, namely my satisfaction that the deceased did not intend to leave his existing will in place, and the unlikelihood that he would have changed his intentions from the draft will so as not to benefit his son, combine to satisfy me that the  2009  draft  will  represents  the  deceased’s  testamentary  intentions.    I am  so satisfied, notwithstanding his failure to sign the will despite having ample time to do so.

[11]     The consent of Ms Brightwell is a factor in my concluding that I am satisfied that the requirements of s 14 are met.   It is, however, a relatively minor factor. Consent is not, of itself, sufficient to establish the requirements for a s 14 order.

[12]     There will be an order declaring valid as the last will of the deceased the draft will annexed to the affidavit of Linda Bishop  affirmed on 23  October  2014 as exhibit B.

“A D MacKenzie J”