Reynolds - [2013] NZHC 3245

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2013-483-31 [2013] NZHC 3245

IN THE ESTATE OF HANK REYNOLDS Hearing: On the papers

Counsel: J R Nash

Judgment: 5 December 2013

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
4 pm on the 5th day of December 2013.

Solicitors: Harris Harvey Nash, Raetihi.

Re Reynolds (deceased) [2013] NZHC 3245 [5 December 2013]

[1] This is an application without notice for an order that a document be declared to be a valid will, under s 14 of the Wills Act 2007 (the Act).

[2] The first question is whether the application may properly be dealt with on a without notice basis. The procedure adopted must ensure that all persons who would be affected by the making of the order have had a proper opportunity to be heard. The deceased had been married, but was divorced. He was survived by four children, all of whom are adults. There is no prior will, so if the will is not declared valid the deceased will have died intestate. Paragraph 4 of s 77 of the Administration Act 1969 would apply. The estate would be held for the four children. The document sought to be declared valid substantially reflects the same distribution, because under it the estate is to be distributed primarily to the four children. They will however be marginally worse off if the order is made, in that there are some specific bequests in the document of which validation is sought. All four children have however consented to the order sought. The estate is quite small. I consider that unnecessary expense would be caused if the application had to be made on notice. In the circumstances, I determine, under r 7.46(3) of the High Court Rules, that the application can properly be dealt with without notice as I am satisfied that the interests of justice require the application to be determined without serving notice of the application.

[3] I turn to the substantive application. The document sought to be declared valid was prepared by a long standing family friend of the deceased, Mr Holland. He has deposed that the deceased asked him to prepare a will and he was honoured to oblige. The deceased explained to Mr Holland how he wished various assets and belongings to be transferred to family members. Mr Holland prepared a document reflecting those instructions and wishes.

[4] The document is headed with the words “Will for” and contains provisions appropriate for a will. The document does not name an executor. To that extent it does not contain all of the provisions usually to be found in a will. Mr Holland explains that neither he nor the deceased were aware of the need for an executor to be named. The fact that there is no executor named does not, in the light of the other

provisions in the document, detract from the appearance of the document as a will. I

am satisfied that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reynolds

Details

AGLC: Reynolds [2013] NZHC 3245
Case: [2013] NZHC 3245
Decision Date: 5 December 2013

CaseChat Overview and Summary

The case before the High Court of New Zealand, Registry of Wanganui, concerns an application under section 14 of the Wills Act 2007 to declare a document as the valid will of Hank Reynolds, who has died. The application was made without notice. The deceased was survived by four adult children, and there was no prior will. If the document in question was not declared a valid will, the estate would be held for the children under section 77 of the Administration Act 1969. The document in question, prepared by a family friend, Mr Holland, substantially reflects the same distribution as would occur under intestacy, but with some specific bequests.

The court had to determine whether the application could be dealt with without notice and whether the document in question was indeed a valid will. The court found that the application could proceed without notice, as the children had consented and there was no significant prejudice to them. The court then turned to the substantive application to determine if the document was a valid will. The document was prepared based on the deceased’s instructions, signed by him, and witnessed by Mr Holland. Although it did not name an executor or have a second witness, these omissions did not detract from its appearance as a will. The court found that the document expressed the deceased’s testamentary intentions, satisfying the requirements of the Wills Act 2007.

The court declared the document as the valid will of the deceased, correcting an obvious error in the name of one of the daughters. The file was to be referred to the registrar for the grant of letters of administration with the corrected will annexed.

Orders