Re Wilkins (Deceased) HC Hamilton CIV 2009-419-725

[2009] NZHC 1340

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2009-419-725

IN THE MATTER OF     the ESTATE OF LLOYD PEARCE WILKINS

BETWEEN  IAN TAYLOR Plaintiff

ANDIAN TAYLOR First Defendant

ANDMICHAEL RYAN, KENNETH MAXWELL HERON AND KEITH OLIVER DIPROSE as executors and trustees of the ESTATE OF ALLISON PORTEOUS

Second Defendant

Hearing:         24 September 2009

Appearances: E Hudson for the Plaintiff

No appearance for the Defendants

Judgment:      24 September 2009

ORAL JUDGMENT OF WOODHOUSE J

Counsel:

Mr E J Hudson, Barrister, Hamilton

Copy to:

Purnell Jenkison Oliver, Solicitors, Thames

TAYLOR V TAYLOR AND ANOR HC HAM CIV 2009-419-725  24 September 2009

[1]      In August 2005 Mr Lloyd Wilkins went to his solicitor’s office to complete a new will.  This was attended to in the usual way, except that his signature does not appear on the third and final page.   His initials are on the first two pages.   Mr Wilkins died on 5 February 2009.  An application is now made for probate in solemn form of this intended will.  I will refer to it as the will.

[2]      The application is made by Mr Taylor as the executor named in the will. Following the appropriate application for directions all interested parties have been served.  There is no opposition to this application.

[3]      Having  considered  the  evidence,  the  relevant  statutory  provisions,  and relevant cases, I am satisfied that probate should be granted.  However, because of the nature of the application it is necessary to set out my reasons in adequate detail. These can be provided in large measure by reciting the relevant facts.

Facts

[4]     The will was prepared in August 2005 by a very experienced general practitioner.  The solicitor has been in practice since 1948.

[5]      The solicitor acted for Mr Wilkins’ father and then for Mr Wilkins.

[6]      In 1999 the solicitor prepared a will for Mr Wilkins.  This left Mr Wilkins’ estate to two cousins, Allison Porteous and Jean Taylor.  Mr Wilkins initialled the first two pages of this will and signed at the foot of the third page, which is the final page.  The solicitor and a legal executive initialled at the foot of the first two pages and signed as witnesses on the third page and with a conventional attestation clause.

[7]      On 16 August 2005 the solicitor took instructions from Mr Wilkins for a new will.  Mr Wilkins told the solicitor that his cousin Allison Porteous had died.  For this reason Mr Wilkins wanted his entire estate to go to Jean Taylor, save for a ring. The proceeds of sale of the ring were to go to a charity.  The solicitor’s notes of his instructions have been put in evidence.

[8]      On 19 August 2005 Mr Wilkins went to his solicitor’s office to sign the new will.  In his affidavit the solicitor says he remembers the visit but not the detail.  He then said:

9.        What I can say is that it is my inevitable practice when attending upon a client to sign a new Will to:

9.1Have the client sit down and to hand to him or her the Will to be signed.

9.2Request the client that they in their own time and at their own pace read through the Will.

9.3Highlight to the client the principal provisions of the Will, such as bequests, and to whom the residue is to pass to.

9.4Enquire if the client is clear about the provisions of the Will and whether there is anything further by way of explanation that I can assist with.

9.5If the client is happy with the Will, I would then arrange for a staff member to be present while the Will was executed.

9.6Explain to the client that it is necessary, where there is more than one page, to initial the foot of each page and to sign the last page opposite their name.

9.7Once signed, I initial all but the last page, date the Will and then add my signature.  I then have the witness do the same.

[9]      The solicitor asked his receptionist to be the second witness.  The initials of Mr Wilkins, the solicitor and the receptionist are at the foot of pages 1 and 2 of the will.  The will was dated on the final page 3 by the solicitor, and the solicitor and the receptionist signed as witnesses on page 3.   Again, there is the usual attestation clause.

[10]     There is no initial or signature of Mr Wilkins on page 3.   The solicitor is unable to explain how this occurred.  He can only presume that he was distracted.  I am satisfied that it was a simple oversight and that Mr Wilkins would have signed in the usual way had this not occurred.

[11]     In other words, I am in no doubt that on 19 August 2005 Mr Wilkins intended to give full testamentary effect to what is recorded in the will.  And I am in no doubt

that Mr Wilkins would have left the office believing that this had been achieved.  It is also clear that all formalities for completion of a valid will were complied with apart from Mr Wilkins’ signature on the third and final page.

[12]     The testamentary dispositions in the will are on page 1; that is to say, the gift of the proceeds of sale of the ring to a charitable institution and the residue to Jean Taylor.  It is not in issue before me that Mr Wilkins’ initials appear clearly at the foot of this page.  And I am satisfied that they do.  The remaining provisions of the will are clause 5, commencing at the foot of page 1, which contains standard provisions as to the powers of the trustee, and clause 6, commencing at the bottom of page 2, which gives the trustee power to apply income or capital to a beneficiary before the beneficiary’s interest vests absolutely.   Neither clause 5 nor clause 6 has any application as a matter of fact.

[13]     After Mr Wilkins left the office on 19 August 2005 the will was placed in Mr

Wilkins’ deeds packet.  The deeds packet already contained the will executed on 23

July 1999.  The cover of the deeds packet records revocation of the will of 23 July

1999.  The notation for the will in question is “19.8.05 –”.

[14]     The solicitor recalls that in late 2006 or early 2007 Mr Wilkins went into a home for the elderly.  The solicitor visited Mr Wilkins and took instructions from him to complete enduring powers of attorney as to personal care and welfare and as to property, appointing Jean Taylor as the attorney in each case.  These powers of attorney are dated 10 January 2007.

[15]     The error in execution of the will was discovered following Mr Wilkins’

death on 5 February 2009.

[16]     The estate, apart from the ring, has a value of approximately $330,000.

The statutory provisions

[17]     The Wills Act 2007 applies to this will because of s 4 which provides:

Wills to which this Act applies

This Act applies to the wills of persons who die on or after 1 November

2007.

[18]     Section 11 of the Wills Act 2007 sets out the requirements for a valid will. Section 11 is as follows:

11       Requirements for validity of wills

(1)       A will must be in writing.

(2)       A will must be signed and witnessed as described in subsections (3)

and (4).

(3)       The will-maker must—

(a)      sign the document; or

(b)acknowledge that a person directed by the will-maker signed the document in the will-maker's presence.

(4)       At least 2 witnesses must—

(a)       be together in the will-maker's presence when the will-maker complies with subsection (3); and

(b)each state on the document, in the will-maker's presence, that the witness was present when the will-maker complied with subsection (3); and

(c)      each sign the document in the will-maker's presence.

[19]     However,  in  the  case  of  a  will  made  before  1  November  2007,  s 11  is modified by s 49(2)(i).  The latter provision adds the words “at its foot or end” to s 11(3)(a) and (b).

[20]     Brookers commentary on s 11 states at WB11.05, under the heading “Wills executed before 1 November 2007”:

Most  of  the  changes  in  s  11  do  not  apply  to  wills  executed  before  1

November 2007: s 40(2)(i) Wills Act 2007. The old law continues to apply to  those  wills.  Wills  executed  before  1  November  2007  must  therefore comply with s 9 Wills Act 1837 (UK).

[21]     This is not strictly correct.  The Wills Act 2007, as made clear by s 4, applies to the wills of persons who die on or after 1 November 2007, irrespective of the date of completion of the will. The provisions of the Wills Act 2007 are then modified by

s 40 in respect of the will of a person who died on or after 1 November 2007 but whose will was made before 1 November 2007.

[22]     There is a separate provision dealing with wills of persons who die before 1

November 2007.  This is s 39 which continues the application of the Wills Act 1837 (UK) and the Wills Act Amendment Act 1852 (UK), subject to some modifications.

[23]     The way the transitional provisions have been framed may, in some cases, have unintended consequences.  This is because some of the statutory provisions for wills of persons who die on or after 1 November 2007, but whose wills were made before 1 November 2007, may on the particular facts operate more restrictively than would have been the case under the provisions of the UK Acts.   Section 9 of the Wills Act 1837 (UK) was amended by s 1 of the Wills Act Amendment Act 1852 (UK).   The latter provision was interpreted expansively to give effect to a testamentary intention if the intention was clear, notwithstanding failure to comply with strict formalities.  Reliance was placed on words to that general effect in s 1 of the Amendment Act.

[24]     Section 14 gives the High Court power to declare valid wills that do not comply with s 11 if the Court “is satisfied that the document expresses the deceased person’s testamentary intentions”.  However, this provision does not apply to wills made before 1 November 2007: s 40(2) (k).  The result is that neither of the statutory provisions directed to the intent of a testator applies to wills of persons who die after

1 November 2007 but whose wills are made before 1 November 2007.

[25]     In this case it is not necessary to further explore this point.  This is because I am satisfied that the statutory provisions that do apply to this will, and in particular s 11(3) of the Wills Act 2007, as modified by s 40(2)(i), were complied with.  I have reached this conclusion with the aid of principles established in a long line of cases which interpreted the provisions of s 1 of the 1852 Act which are consistent with the current legislation.

[26]     I have also been assisted by careful submissions from Mr Hudson.  He set out relevant principles from the cases.   In In the Goods of Peverett1, President Sir F Jeune said:

Two things may be laid down as general principle.  The first is that the Court is  always  extremely  anxious  to  give  effect  to  the  wishes  of  persons  if satisfied that they really are their testamentary wishes and second the Court will not allow a matter of form to stand in the way if the essential elements of execution have been fulfilled.

And in In the Goods of Jones2 the Court said:

Within the limits of reasonable construction the Court is prepared to go to all lengths to save a genuine act of execution from entanglement in defeat by formal requirements.

[27]     Those authorities, and a number of others, were fully discussed by Tompkins J in Re Stewart3.  Further directly applicable New Zealand authority is found in a decision of Eichelbaum J (as he then was) in Public Trustee v Kerr4.   It is not necessary to discuss those cases.  They provide ample authority for validation of this will, in the light of the facts I have set out, subject to one other point.

[28]     The remaining point relates to the fact that only Mr Wilkins’ initials appear on the will.  Section 11(3)(a) of the Wills Act 2007 says “the will-maker must … sign the document”.   There is no definition of the verb “to sign”.   The same expression is used without definition in the Wills Act 1837.  The cases on the Wills Act 1837 are therefore applicable.

[29]     Mr Wilkins’ initials are sufficient to meet the statutory requirement that the will be signed by the will-maker: Re Savory5; Re McNamee6.

[30]     The initialling must have been done by Mr Wilkins with the intention that it should  operate  to  make  the  document  effective  as  a  testamentary  disposition:

1 In the Goods of Peverett [1902] P205,207

2 In the Goods of Jones (1865) 164 ER 414

3 Re Stewart (Deceased) (HC AK, A389/85, 17 December 1991, Tompkins J)

4 Public Trustee v Kerr (HC AK, A49/83, 17 May 1985, Eichelbaum J)

5 Re Savory (1851) 15 Jur 1092

6 Re McNamee (1912) 13 NZLR1007

Sweetland v Sweetland7; Walker v Walker8.   I am satisfied that when Mr Wilkins initialled the two pages this was done with the intention of making the document an effective testamentary disposition.

[31]     For these reasons probate may be granted in respect of the entire document, although full effect would be given to Mr Wilkins’ intention if probate was granted in respect of the two initialled pages only.

[32]     There will therefore be a grant to the plaintiff of probate in solemn form of law of the will dated 19 August 2005.  This is the will of that date presently attached

to the affidavit of the solicitor.

Peter Woodhouse J

7 Sweetland v Sweetland (1865) 164 ER 1416

8 Walker v Walker (1805) 35 ER 758