Scully v Scully

[2022] NZHC 2574

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-337

[2022] NZHC 2574

UNDER

Section 14 of the Wills Act 2007

AND UNDER

Part 19 of the High Court Rules 2016

IN THE MATTER OF

an application by HILLARY JEAN SCULLY of Auckland, Architect for an order

validating the signed wills checklist of NANCY FIONA SCULLY of London,

United Kingdom, Deceased

BETWEEN

HILARY JEAN SCULLY

Applicant

AND

GERALDINE FRANCES SCULLY

Respondent

Hearing:

On the Papers

Counsel:

K H Lawrence for Applicant

J B Orpin-Dowell for Respondent

Judgment:

6 October 2022

JUDGMENT OF McQUEEN J

[1]    This matter concerns the estate of the deceased Ms Nancy Fiona Scully. At the time of her death, she did not leave a valid will.

[2]    On 15 June 2022, Ms Hilary Scully, the sister of the deceased, applied for an order under s 14 of the Wills Act 2007 (the Act) that a “wills checklist” signed by the deceased be validated as her most recent will. This checklist had been provided to the deceased by a London solicitor’s firm following enquiries made by her as to the creation of a will. The deceased made written notes about her intentions and asked

SCULLY v SCULLY [2022] NZHC 2574 [6 October 2022]

the applicant to complete the checklist on her behalf in accordance with her instructions. Attached to the checklist is a note that indicates the residuary of the deceased’s estate was to be divided equally between the deceased’s two sisters, brother-in-law, three nieces and nephews and her cousin. While the checklist was signed by the deceased, it was never returned to the firm for the preparation of the will.

[3]    This application was opposed by the deceased’s other sister, Ms Geraldine Scully, on the basis that the applicable law was the law of England, under which the will would not be recognised as valid, and in the alternative, that the requirements of s 14 of the Act are not met. The import of the notice of opposition is that without declaring the checklist as valid, the deceased will have died intestate, and her estate would instead be divided equally between both Hilary and Geraldine.

[4]    The parties have now reached settlement. Between them, they have agreed that the residuary of the estate will be divided in the following way:

(a)45 per cent to Hilary;

(b)45 per cent to Geraldine; and

(c)the remaining 10 per cent to be shared equally among the remaining five beneficiaries contained in the checklist.

[5]The parties now seek, by consent, for the Court to either:

(a)validate the checklist as the final will of the deceased pursuant to s 14 of the Act and grant probate of that will to the applicant; or

(b)decline to validate the checklist as the final will and grant letters of administration on intestacy to the applicant under s 6 of the Administration Act 1969.

[6]    In either case, the parties are agreed that the residuary of the estate will be divided in accordance with the deed of settlement and as set out in para [4] above.

[7]    In light of the deed of settlement entered by the parties, it is in my view unnecessary for the Court to consider whether to exercise its power to declare the checklist a valid will, and in particular, to engage in the careful exercise of assessing whether the checklist expresses the testamentary intentions of the deceased.

[8]    Accordingly, pursuant to ss 5 and 6 of the Administration Act 1969 and r 27.35 of the High Court Rules 2016, I grant letters of administration on intestacy, in respect of Ms Nancy Fiona Scully, the deceased, to Ms Hilary Scully, as a beneficiary of the estate.

McQueen J

Solicitors:

Greg Kelly Law Ltd, Wellington for Applicant Carter Atmore Law, Auckland for Respondent