Roberts v Oldham
[2023] NZHC 2106
•9 August 2023
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 executor and trustee. Clause 2(b) then provides that Mrs Richards gives Ms Roberts the whole of her estate on trust to pay debts and expenses and to hold the residuary estate. However, the Clause provides no direction as to how the residuary estate is to be disposed of. Clause 2(b)(ii) reads:
To hold the residue (“the residuary estate”)
Significantly, no words and no full stop or other punctuation follow these type-written words.
(b)Clause 3(a) provides that if Ms Roberts did not survive Mrs Richards by 30 days, Mr Oldham is appointed as executor and trustee. Clause 3(b) then provides that Mrs Richards gives Mr Oldham the whole of her estate on trust to pay debts and expenses and goes on to provide that Mr Oldham is:
(ii)To dispose of the residue (“my residuary estate”) as follows:
I direct that my share of the real property be realised upon and the residue be divided equally between the named Trustees here in
Jacqueline Delys Roberts Simon Garry Oldham
Significantly, the word “hold” in the introductory type-written words is struck out and replaced with the hand-written word “dispose”. The rest of the clause after “as follows” is in handwriting.
[8] Mr Eves says that his recollection of Mrs Richards’ instructions was that she wished for Ms Roberts to be her executor and for her assets to be split between Ms Roberts and Mr Oldham as her niece and nephew. At the time of execution, those
assets were a property in Maraetai and some cash funds. Mr Eves says that the reference to “real property” in Clause 3(b)(ii) was included to make it clear that Mrs Richards was dealing with her share in the Maraetai property and not to limit what property she was passing to Ms Roberts and Mr Oldham.
[9] Mr Eves says that he did not realise that Clause 2 was incomplete, but that it was his firm belief, based on the conversation that he witnessed between Mrs Richards and Ms Tier, that Mrs Richards intended for her estate to be divided equally between Ms Roberts and Mr Oldham. He also says that he does not recall any question about Mrs Richards’ mental capacity at the time of signing her will or for any period before or after her stroke in 2014.
[10] Ms Roberts explains her relationship with Mrs Richards and the role she played in helping to care for her in her later days, sometimes in difficult circumstances. Ms Roberts assisted Mrs Richards to be admitted to Middlemore Hospital after she had found her aunt in poor conditions at her home in Maraetai. Subsequently, Mrs Richards and her husband, Timothy Richards, moved into a retirement village in Pukekohe. Ms Roberts says that after Mr Richards died, Mrs Richards made her the beneficiary of her life insurance policy.
[11] Ms Roberts explains that the Maraetai property was sold and the proceeds of the sale held in a joint bank account between Mr and Mrs Richards. This account went automatically to Mrs Richards on Mr Richards’ death in September 2020. Ms Roberts explains that she knew this as she held power of attorney over both Mr and Mrs Richards’ finances. She says that when she asked Mrs Richards if she wanted to change her will to leave Mr Richards’ family a share of her estate, Mrs Richards said that she did not, given they did not visit her or Mr Richards when they were at Maraetai or their retirement home.
[12] Ms Roberts says that, like Mr Eves, her belief is that Mrs Richards intended to prepare a will that appointed her as executor and trustee and that she wished to distribute her whole estate equally between her and Mr Oldham.
Procedural matters
[13] The application is brought as an originating application, which is the required procedure for an application under ss 14 and 31 of the Wills Act.1 It is brought as a without notice application, and directions are sought that formal service of the proceeding be dispensed with given all parties have consented to the Wills Act orders sought, and that no other persons are required to be served.
[14] The affidavits of Mr Eves and Ms Roberts refer to Mrs Richards as having a child which is understood to have been adopted out. Ms Roberts says that, following Mrs Richards’ death, she has searched Mrs Richards’ personal papers and documents to try and obtain further information about the child. She says that the only mention in Mrs Richards’ memory books is in reference to a named boy born in July 1970. Ms Roberts says that she has been unable to make enquiries with the Department of Internal Affairs because she must first obtain a grant of probate appointing her as executor and administrator of Mrs Richards’ estate. She explains that if Mrs Richards’ child was not formally adopted, that she intends to make reasonable enquiries to try and locate him.
[15] Ms Black, Ms Roberts’ counsel, has filed a memorandum in support of the application which states that the application is made without notice on the grounds that:
(a)the only person, other than Ms Roberts, who may be affected by the granting of the orders, Mr Oldham, has consented to the application and signed the joint memorandum personally, such that formal service is not required;
(b)there are no other parties who ought to be served; and
(c)it is in the interests of justice that this application be made without notice in the circumstances.
1 High Court Rules 2016, r 19.2(xa).
[16] The memorandum has also been signed by Mr Oldham in confirmation of the above.
[17] I am satisfied it is appropriate to direct that formal service of this proceeding is dispensed with and that no other persons are required to be served. While it appears likely that Mrs Richards had a son who, if not adopted out, would be affected by the granting of the substantive orders sought, it is clear that further information about the identity and whereabouts of this person can be obtained only if the document is validated and Ms Roberts made executor and trustee. Accordingly, I make the orders dispensing with formal service to Mr Oldham and to any other persons who would ordinarily be required to be served.
Applicable principles
[18] Section 8(1) of the Wills Act 2007 sets out the meaning of a will. It includes a document made by a natural person which disposes of property to which the person is entitled when he or she dies.
[19] Section 11 sets out the requirements for a valid will. These include that it must be in writing, signed by the will-maker and witnessed in the manner required by s 11(4). Section 11(5) provides:
(5)As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:
(a)that he or she was present with the other witnesses when the will-maker –
(i)signed the document; or
(ii)acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or
(iii)directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or
(iv)acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)that he or she signed the document in the will-maker’s presence.
(6)No particular form of words is required for the purposes of subsection (5).
[20] Under s 14, the Court may declare a document that does not comply with s 11 to be a valid will if it is satisfied the document expresses the deceased person’s testamentary intentions. Section 14(3) provides that in considering whether to exercise its power under s 14(2), the Court may consider the document itself, evidence of the signing and witnessing of the document, evidence of the deceased person’s testamentary intentions and evidence of statements made by the deceased.
[21]The approach to the application of s 14 was set out by McKenzie J in
Re Beaumont2 and in Re Campbell.3 In summary:
(a)great care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so;
(b)under s 14(2), the inquiry is focussed on the will-maker’s intentions, rather than the formal steps taken to implement those intentions;
(c)the evidence that may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant consideration;
(d)where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect in preference to intestacy; and
(e)there must be cogent evidence that the document reflects the deceased person’s testamentary intentions but the standard of proof to be applied is the ordinary civil standard; that is, the balance of probabilities.
2 Re Beaumont (deceased) [2013] NZHC 2719 at [11].
3 Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15] – [22].
[22] Under s 31, the Court may make an order correcting a will to carry out the will- maker’s intentions where the Court is satisfied that the will does not do so because it contains a clerical error4 or because it does not give effect to the will-maker’s instructions.5 As the Court of Appeal explained in Wilson v Davidson:6
A clerical error that a party seeks to correct will generally, as well as being an error, not give effect to the will-maker's intentions, and thus the correction of clerical errors will generally be available on the grounds set out in both s 31(1)(a) and (b). However not every failure to give effect to the will-maker's instructions will be a clerical error in the sense of a mistake made in copying or writing out a document.
The Application
[23] The application seeks orders validating the document under s 14 and correcting it to give effect to Mrs Richards’ purported intentions under s 31.
[24] Ms Black, for the applicant, says that an order under s 14 is required because the evidential requirement under s 11(5) has not been complied with. Ms Black says this is because the attestation clause contains omissions and does not identify Mrs Richards as the party who signed.
[25] Ms Black says that an order under s 31 is needed because the clause directing Ms Roberts’ to hold the residue of Mrs Richards’ estate does not direct what Ms Roberts is to do with that residue. Ms Black says it is obvious that Mrs Richards’ intended that Ms Roberts (if still alive) and Mr Oldham would share equally in the residuary estate as evident from the affidavits in support and Clause 3 of the document, which disposes of the residuary estate of Mrs Richards in precisely this manner, despite the clause only applying if Ms Roberts did not survive Mrs Richards by 30 days.
[26] Ms Black says further that the reference in Clause 3 to “dispose”, which replaced the original word “hold” indicates that Mrs Richards intended Ms Roberts and Mr Oldham to receive their half shares in the residuary estate beneficially, as opposed to as trustees. She says that the use of the words “the named Trustees here
4 Wills Act 2007, s 31(1)(a).
5 Section 31(1)(b).
6 Wilson v Davidson [2017] NZCA 468 at [33].
in” which followed Ms Roberts and Mr Oldham’s full names under Clause 3 were just a way to further identify them and that the affidavits support that interpretation too. Ms Black submits that use of the phrase “real property” in Clause 3 was to make it clear that Mrs Richards intended to dispose both her real and personal property to Ms Roberts and Mr Oldham. For those reasons, she submits that the document, as Mrs Richards’ will, ought to be corrected to give effect to Mrs Richards’ intentions by ordering that the residue of her estate, being both real and personal property, held by Ms Roberts as executor and trustee, be divided equally between Ms Roberts and Mr Oldham as beneficiaries.
Analysis
[27] While it remains good practice to include an attestation clause in a will to state explicitly that witnesses were present when the will-maker signed or acknowledged their will, that is not a mandatory requirement.7 The language of s 11(5) is permissive, not mandatory.
[28] That being so, I do not consider that the document is invalid in terms of s 11. It plainly meets the requirements of being:
(a)in writing;
(b)signed by Mrs Richards in the presence of two witnesses; and
(c)signed by those two witnesses in Mrs Richards’ presence, as Mr Eves’ affidavit confirms.
[29] Accordingly, the document is a valid will in accordance with s 1l and does not require an order for validation under s 14. For the avoidance of doubt, however, I record that the document is a valid will.
[30] It is apparent, however, that the will requires correction. As written, its effect is that Ms Roberts holds Ms Richards’ residual estate as trustee in perpetuity. I am
7 Nicky Richardson and Lindsay Breach Wills and Succession (online ed, LexisNexis) at [4.5].
satisfied, on the basis of the will itself and from the affidavits of Mr Eves and Ms Roberts, that this was not Mrs Richards’ intention.
[31] I accept that Mrs Richards’ instructions were those described by Mr Eves. That is, that Ms Roberts was to be appointed as executor and trustee to distribute the residuary estate (comprising both real and personal property) in equal shares to herself and her brother, Mr Oldham, as the intended beneficiaries. I consider that, in filling out the will for Mrs Richards, Ms Tier mistakenly believed that Clause 3(b) was separate from Clause 3(a) and applied to both scenarios provided for in Clause 2(a) and Clause 3(a). That would explain why Clause 2(b) was left incomplete and why Clause 3(b) provides that the residuary estate is divided equally between Ms Roberts and Mr Oldham in a situation that would apply only where Ms Roberts had not survived Mrs Richards by the required 30 days.
[32] In this respect, the drafting error can be considered as a clerical error and as a failure to give effect to Mrs Richards’ instructions. The error is not surprising given that the will was based on a “do it yourself” template and was completed without apparent legal advice or instruction. On either basis, the will requires correction
[33] Finally, for completeness, I note that no issue has been raised regarding Mrs Richards’ testamentary capacity following her stroke.
Result
[34] I confirm that the document labelled the last will of Kathryn Judith Richards dated 21 August 2014 is a will that meets the requirements of s 11 of the Wills Act 2007.
I order that the will be corrected so that Clause 2 reads:
If my Niece (J.D. Roberts) survives me by 30 days:
(a)I appoint as executor and trustee of this Will (“my trustee”) Jacqueline Delys ROBERTS;
(b)I give the whole of my estate (both real and personal of whatever nature and wherever situated, including all property
over which I have a power of appointment) which is not otherwise disposed of by this Will to my trustee upon trust:
(i)To pay out of it my just debts, funeral, and testamentary expenses, and all duties upon the whole of my dutiable estate (both actual and notional) in exoneration of the recipients of my notional estate; and
(ii)To dispose of the residue (“my residuary estate”) to Jacqueline Delys Roberts and Simon Gary Oldham, as beneficiaries of my estate, in two equal shares.
G J van Bohemen J
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