Roberts v Oldham - [2023] NZHC 2106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001522

[2023] NZHC 2106

UNDER Section 14 and 31 of the Wills Act 2007

IN THE MATTER OF

an application for an order declaring a document to be a valid will and correcting the will to carry out the will-maker’s

intentions

BETWEEN

JACQUELINE DELYS ROBERTS

Applicant

AND

SIMON GARRY OLDHAM

Respondent

On the papers

Counsel:

E J Black Applicant Respondent self-represented

Judgment:

9 August 2023

JUDGMENT OF VAN BOHEMEN J

[application for order declaring document to be a valid will and correcting will to carry out will-maker’s intentions]

This judgment was delivered by me on 9 August 2023 at 11:30 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Solicitors:
Hesketh Henry, Auckland

ROBERTS v OLDHAM [2023] NZHC 2106 [9 August 2023]

[1] Jacqueline Roberts applies for orders under the Wills Act 2007 to validate and correct the informal will (the document) of her aunt, Kathryn Richards, who died in Auckland on 9 May 2023. The document, signed on 21 August 2014, was a “do it yourself” will purchased and filled out by Mrs Richards’ sister (and Ms Roberts’ mother), Lynne Tier, following Mrs Richards’ instructions. Despite the best of intentions, the document is deficient. Hence, the present application.

[2] In support of the application are affidavits from Ms Roberts and Maxton Eves (Ms Tier’s husband) who, with Ms Tier, witnessed Mrs Richards’ signing the document. The respondent, Simon Oldham (Ms Roberts’ brother and Mrs Richards’ nephew) consents to the application.

Background

[3] In August 2014, Mrs Richards’ suffered a minor stroke and was admitted to Middlemore Hospital. Following her stroke, Mrs Richards’ realised that she did not have a will. Ms Tier purchased a “do it yourself” template will.

[4] On 21 August 2014, Ms Tier took verbal instructions from Mrs Richards and filled in the “do it yourself” will on Mrs Richards’ behalf. Mr Eves says this was because Mrs Richards was unable to write well. Mr Eves says he was in the room when Ms Tier took instructions from Mrs Richards, and that Mrs Richards’ said that she decided to leave her estate to Ms Tier’s children, Ms Roberts and Mr Oldham, because Mrs Richards did not believe Ms Tier would survive her. At the conclusion of this meeting, Mrs Richards signed the document in the presence of Ms Tier and Mr Eves, who then both signed the document as witnesses.

The document

[5] The document has been signed by “K Richards”. However, no name has been entered in the attestation clause which reads:

SIGNED by as last Will in our presence and attested by us as in presence.

[6] However, the signatures, names, occupations and addresses of the two witnesses are properly entered below the attestation clause.

On its face, the document provides for two scenarios:

(a)Clause 2(a) provides that, if Ms Roberts survives Mrs Richards by 30 days, Ms Roberts is appointed…

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 Roberts v Oldham

Details

AGLC: Roberts v Oldham [2023] NZHC 2106
Case: [2023] NZHC 2106
Decision Date: 9 August 2023

CaseChat Overview and Summary

Jacqueline Roberts, the niece of Kathryn Richards, applied for orders to validate and correct the informal will of her aunt, Kathryn Richards, who passed away on 9 May 2023. The will, signed on 21 August 2014, was a DIY will completed by Lynne Tier, Ms Roberts' mother, based on instructions from Kathryn Richards. The will contained deficiencies, prompting the application. The respondent, Simon Oldham, Ms Roberts' brother and Kathryn Richards' nephew, consented to the application. Kathryn Richards had suffered a minor stroke in August 2014 and realised she did not have a will. Ms Tier, acting on Kathryn Richards' instructions, filled out the DIY will on her behalf. The document was signed by "K Richards" but did not include the name of the person who signed in the attestation clause. The signatures, names, occupations, and addresses of the witnesses were correctly entered below the attestation clause. The document specified two scenarios, with Clause 2(b) providing that if Ms Roberts survived Kathryn Richards by 30 days, Ms Roberts would be appointed as executor and trustee, and receive the whole of Kathryn Richards' estate. However, the clause provided no direction as to how the residuary estate was to be disposed of. Clause 3(b) provided that if Ms Roberts did not survive Kathryn Richards by 30 days, Mr Oldham would be appointed as executor and trustee and receive the whole of Kathryn Richards' estate, with instructions to dispose of the residue in equal shares between Ms Roberts and Mr Oldham. The court considered whether the document was a valid will under s 11 of the Wills Act 2007 and whether it required correction under s 31. The court held that the document met the requirements of s 11 and was a valid will. The court also held that the will required correction to give effect to Kathryn Richards' intentions. The court ordered that the will be corrected so that Clause 2 would provide that if Ms Roberts survived Kathryn Richards by 30 days, Ms Roberts would be appointed as executor and trustee and receive the whole of Kathryn Richards' estate, with instructions to dispose of the residue in equal shares between Ms Roberts and Mr Oldham as beneficiaries of her estate.

No orders were made as to costs.

Orders