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 the document appears to be a will, in terms of s 14(1)(a).

[5]      The  document  does  not  comply  with  s 11,  because  it  is  signed  by  the deceased, but witnessed only by one witness.   Mr Holland explains that when the document had been typed up, the deceased signed it before Mr Holland, and he witnessed it.  Neither of them was aware that there needed to be a second witness.

[6]      The evidence shows that the document expresses the deceased’s testamentary intentions.   Mr Holland’s evidence as to the way the document was prepared and signed confirms that.   In addition, there is evidence from the deceased’s daughter, Ms Rennie, that the deceased had discussed with her the arrangements he proposed to make before signing the document.  She further says that after he had signed it he confirmed  to  her  in  conversation  that  the  document  followed  what  they  had discussed.   I am accordingly satisfied that the document expresses the deceased’s testamentary intentions, in terms of s 14(2) of the Act.

[7]      There will accordingly be an order declaring valid as the will of the deceased the original document which is attached to the notice of application marked “A”.

[8]      In the document, one of the deceased’s daughters is incorrectly named Dennis Pearl Reynolds.   Her correct name is Doris Pearl Reynolds.   The mistake is an obvious one.  In the circumstances, I make an order correcting the will under s 31 of the Act.

[9]      The file is now to be referred to the registrar, for consideration of the grant of letters of administration, with that document as the will annexed.

“A D MacKenzie J”