Richards v French

[2016] NZHC 1647

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-000154 [2016] NZHC 1647

UNDER	the Wills Act 2007
IN THE MATTER	of an application to declare a will valid
BETWEEN	EDWARD DENE RICHARDS AND JEAN SYBIL RICHARDS Applicants
AND	JUNE MARIE FRENCH Respondent

Hearing:	20 July 2016
Appearances:	E Hudson for the Applicants No appearance by or on behalf of the Respondent
Judgment:	20 July 2016

JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

Mr E Hudson, Barrister, Hamilton

Lamb Bain Laubscher, Barristers & Solicitors, Te Kuiti

RICHARDS & Anor v FRENCH [2016] NZHC 1647 [20 July 2016]

Introduction

[1]      Kim French was an English nurse who died on 4 March 2015 following a motor vehicle accident.  She had never married and had no children.  Close friends searched her house following the accident at the request of her elderly mother in England and found a handwritten document signed by her, which was obviously intended by her to be her will.  It was not witnessed as required by s 11 of the Wills Act 2007 and therefore, if not validated by this Court, would be void and of no effect.   If Ms French died without a valid will, her estate would go to her elderly mother.  The document which Ms French intended should be her will left her estate to close friends in New Zealand.

[2]      The couple Ms French named as executors and trustees of her will, Jean and Dene Richards, now apply to this Court for validation of the handwritten document signed by her as her will under s 14 of the Wills Act.

Factual background

[3]      It is unnecessary for me to traverse the factual background, which is fully explained in the affidavits filed in support of the application.   The handwritten document found in Ms French’s house following the accident, reads as follows:

07 02 2010

This is the last will and testament of myself Kim French of Whatawhata

D.O.B. 13.05.1960

I hereby revoke any previous wills made by myself.

I appoint my friends Jean and Dene Richards of Pirongia to be my sole executors and trustees of this will.

I wish my house and contents to be divided equally between Jarrod and

Dylan Pearson of Cambridge, NZ.

I wish my jewellery to go to be given to Julie Pearson of Cambridge, NZ. I wish my birds to go to Jarrod and Dylan Pearson of Cambridge, NZ.

I wish my car to be sold and the proceeds put into an account to pay for the upkeep of the birds and any veterinary bills that may occur.

I wish my funeral expenses to be paid out of my insurance policy and any monies from my shares with National Mutual once all bequests have been

fulfilled  and  debts  paid,  if  any,  to  go  to  Julie  and Anthony  Pearson  of Cambridge, NZ and Shane Richards of Whatawhata with thanks for their friendship and support in good times and bad.

I wish the furniture from the Richards family to be given to Shane Richards to do with as he sees fit.

Funeral arrangements

I direct I be cremated and the ashes go to Shane Richards with half being spread within New Zealand and half being spread within the UK.

The after service is to be held at home in Whatawhata with friends and family celebrating my life.

Kim French 07 02 2010

[4]      Following discovery of the document, Mr and Mrs Richards sought advice from their solicitor, Mr Lamb of Lamb Bain Laubscher.  He advises that Ms French’s family in the UK had indicated through their solicitors, Tompkins Wake, that they would consent to an application to validate the will.  In light of that advice, Mr Lamb prepared a deed of arrangement, which provided that Mr Richards would apply to the High Court for validation of the will and would also apply for a grant of probate of the will.

[5]      Ms French’s mother has now signed the deed of arrangement and consents to the application to be made by Mr Richards, subject to her receiving reimbursement of Ms French’s funeral expenses incurred in England, the repayment of a relatively small amount owing by Ms French to her and legal expenses incurred by her in New Zealand to a maximum of $5,000.

[6]      Mr Richards and the beneficiaries named in the handwritten document agree to Mr Richards, as executor, making payment to Ms French’s mother of the amounts set out.  Ms French’s mother also agrees and covenants with Mr Richards that the payments to be made to her are in full and final satisfaction of all or any claims which she has or may have as a result of Ms French’s death, either pursuant to the terms of the will or intestacy.  That deed has also been signed by Mr Richards and all the beneficiaries named in the handwritten document.

Discussion

[7]      Having carefully considered all the circumstances, I am satisfied that it is appropriate to make an order under s 14 of the Wills Act validating the handwritten document as Ms French’s will.  The document is clearly in the form of a will and was  intended  by Ms  French  to  be her will.    Ms  French  had  also  told  Mr and Mrs Richards  that  she  was  contemplating  leaving  her  property to  them  and  the Pearson  family.    Ms  French  in  fact  mentioned  it  on  a  number  of  occasions  to Ms Richards, who assumed that she must have taken appropriate professional advice and signed a will as she referred to the Pearson family as being her beneficiaries.

[8]      At the time of her death, Ms French was well settled in New Zealand and closer to the Richards and Pearson families than her mother and siblings in England. Ms French had lived in New Zealand since early 1993.  After her arrival she had lived with Shane Richards, Mr and Mrs Richard’s son, until they separated in approximately 2004.   Ms French remained living and working in New Zealand thereafter until the date of her death.  The contact with her family in England over the last years of her life was sporadic.  I am, therefore, satisfied that the handwritten document expresses Ms French’s testamentary intentions.

Result

[9]      The handwritten document dated 7 February 2010 is declared to be the valid will of the late Kim French pursuant to s 14 of the Wills Act 2007.

……………………………….

Woolford J