Regan

[2016] NZHC 2406

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000953 [2016] NZHC 2406

UNDER THE

Wills Act 2007

IN THE MATTER OF

the Estate of DOROTHY MAY REGAN

AND

IN THE MATTER OF

An application by

TREVOR DOUGLAS WALSH and CHRISTOPHER JOHN CHARLES SIMPSON

for an order that a draft will of Dorothy

May Regan be declared valid

Hearing:	On the papers
Judgment:	10 October 2016

JUDGMENT OF NATION J

[1]      Harmans Lawyers drafted a will for Dorothy May Regan (Dorothy) who died on 15 November 2014, before she had signed that new will.  The applicants are the people she had named as her trustees in that will.  They apply for an order under s 14 of the Wills Act 2007 for an order declaring the draft will to be a valid will of the deceased.

[2]      The order is sought on the grounds:

(a)  the applicants are the executors named in the draft will;

(b)  the draft will has not been executed in the manner prescribed in s 11(4)

of the Wills Act 2007;

Re Regan [2016] NZHC 2406 [10 October 2016]

(c)  the document expresses the deceased’s testamentary intentions up until

she died; and

(d)  all persons who may be potentially affected by the granting of the order have consented or will consent to this application.

[3]      Section 14 of the Wills Act 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.

[4]      In this instance, there is in existence a prior, validly executed will.  The issue is whether or not the subsequent draft will should be recognised as a valid will in place of the earlier will.  The High Court may make an order to this effect if it is satisfied the later document expresses the deceased person’s testamentary intentions and thus that the earlier will should no longer have effect.1   The Court may consider any evidence which may assist in determining this, including (but not limited to) the considerations listed in s 14(3).2

[5]      Dorothy Regan was 87 when she died.   From her first marriage, she was survived  by three  children,  Irene  Margaret  Gilbert  (Irene),  Paula  Maree  Painter (Paula) and Trevor Douglas Walsh (Doug).   After her first husband’s death, she married again on 24 August 1996.  Her second husband died in 2005.  Through that marriage she had three step-children, Gary Regan, Edward Regan and Lorraine Slade (Lorraine). They were all adults at the time of their father’s marriage to Dorothy.

[6]      A solicitor at Harmans, Fleur McDonald, assisted Dorothy with a will which she executed on 3 July 2013 and again with a new will which was executed on 22

October 2013.  This was Dorothy’s last validly executed will.  (The trustees in that will were the same as named in the draft will.)  There was a change with that latter will from an earlier will in that Dorothy no longer made any provision for her step-

daughter, Lorraine.

1      Wills Act 2007, s 14(2).

2      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15].

[7]      In that will of 22 October 2013, Dorothy divided her estate into 60 parts.  She gave 25 shares to her daughter Irene, 25 shares to her son Douglas and 10 shares to her daughter Paula.

[8]      Dorothy sent Fleur McDonald a note on 31 October 2013 confirming the instructions she had given about not including Lorraine in her will and the reason for that.  She understood Lorraine’s father had made particular provision for her from his estate.

[9]      On 16 June 2014, Dorothy signed a sale and purchase agreement for the sale of her home to her grandson, Doug’s son Steven Walsh, and his wife.  Associated with that sale, she completed a formal deed of gift of $60,000 to that grandson and his wife.  That couple also signed an acknowledgement of debt for a further loan to them of $80,000.

[10]     Fleur McDonald  has  said  in  her affidavit  that,  associated with  that  sale, Dorothy instructed her to prepare a new will.  In that will, she divided her estate into

100 shares, giving 35 shares to Irene, 35 shares to Doug, 10 shares to Paula and 20 shares to Lorraine.  She told Fleur McDonald that she was having second thoughts about whether her reason for making the earlier change in respect of Lorraine was justified. She also wanted the gift of $60,000 to her grandson, Steven and his wife to be brought into account against Doug’s share.

[11]     On 1 October 2014, Fleur McDonald wrote to Dorothy with a draft will recording those instructions.  Doug’s affidavit evidence is that he discussed this draft will with his mother.  She confirmed that it was correct but there was an error in that the gift which was to be brought into account against his share was recorded as

$6,000 not $60,000 as it should have been.

[12]     Harmans  then  corrected  the  draft  and  a  legal  executive  arranged  an appointment for 18 November 2014 with two people from Harmans, including Fleur McDonald, to attend on Dorothy at the retirement village where she lived for her to execute the draft will which had been prepared.  Unfortunately, Dorothy died on 15

November 2014 before that appointment took place.

[13]     In his affidavit, Doug has explained how, under the will of 22 October 2013, the shares the three beneficiaries would have had, in an estate estimated to be worth approximately $390,000, would be as follows:

(a)  25/60 to Irene = $162,630 (41.7%);

(b)  25/60 to Doug = $162,630 (41.7%); and

(c)  10/60 to Paula = $64,740 (16.6%).

[14]     With the gift of $60,000 to be brought into hotchpot, the value of the estate would increase from $390,000 to $450,000.  Each beneficiary of Dorothy’s draft will would then receive:

(a)  35/100 to Irene = $157,500;

(b)  35/100 to Doug at $157,500 less $60,000 = $97,500; (c)  20/100 to Lorraine = $90,000; and

(d)  10/100 to Paula = $45,000.

[15]     The people who will be affected by validation of the draft will are Dorothy’s children named as beneficiaries under the will of 22 October 2013 and Lorraine. Each of them has signed a formal consent to the order declaring the draft will to be a valid will.  In that document they consent to the making of the order sought, confirm that they have each been advised of the right to seek independent legal advice in relation to their consent, have elected not to seek legal advice and are fully aware of the effects of the order being made.

[16]     I am satisfied that Dorothy intended that her will of 22 October 2013 would no  longer  have  effect  and  the  draft  will,  which  she  was  going  to  sign  on  18

November 2014, does express her testamentary intentions.

[17]     I accordingly make an order declaring that the draft will, a copy of which is exhibit to the affidavit of Trevor Douglas Walsh, sworn on 19 July 2016 and marked

‘F’, is a valid will of Dorothy May Regan, late of Christchurch, retired.

Solicitors:

Harmans Lawyers, Christchurch