Smith

[2021] NZHC 728

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-50

[2021] NZHC 728

UNDER

the Wills Act 2007

IN THE MATTER

of the Will of Geoffrey William Smith

BETWEEN

ALISON ISABEL SMITH AND AARON JOSEPH MILNES

Applicants

Hearing:	On the papers
Appearances:	C W Knowles for Applicants
Judgment:	1 April 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 1 April 2021 at 11.45 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1]                 The applicants, Alison Isabel Smith (Mrs Smith) and Aaron Joseph Milnes, seek an order pursuant to s 14 of the Wills Act 2007 that a testamentary document (the draft will) be declared a  valid  will  of  the  deceased,  Geoffrey  William  Smith  (Mr Smith), who died at Christchurch on 1 September 2020. Mrs Smith is the wife of the deceased.

RE SMITH [2021] NZHC 728 [1 April 2021]

[2]                 The application is made by way of an originating application, without notice, on the grounds all persons affected by the application have consented to it.

Background

[3]                 In October 2018 Mr and Mrs Smith instructed a solicitor at Helmore Stewart to prepare wills for each of them. Mrs Smith says the wills were broadly similar to their existing wills, the principle difference being that the residue of their estates was to be divided equally between their four children, rather than unequally as before.

[4]Draft wills were prepared and sent to Mr and Mrs Smith.

[5]                 On 30 December 2018 Mr Smith signed the draft will in the  presence  of  Mrs Smith but did not have it witnessed.

Law

[6]                 This Court has power to declare a document a valid will, pursuant to s 14 of the Wills Act. That section states:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will; and

(b)does not comply with section 11; and

(c)came into existence in or out of New Zealand.

(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

(3)The court may consider—

(a)the document; and

(b)evidence on the signing and witnessing of the document; and

(c)evidence on the deceased person’s testamentary intentions; and

(d)evidence of statements made by the deceased person.

Discussion

[7]                 I am satisfied that the requirements of s 14(1) have been met. The draft will appears to be a will and it came into existence in New Zealand. There was also a non-compliance with s 11 of the Wills Act which states:

11       Requirements for validity of wills

(1)A will must be in writing.

(2)A will must be signed and witnessed as described in subsections (3) and (4).

(3)The will-maker must—

(a)sign the document; or

(b)direct another person to sign the document on his or her behalf in his or her presence.

(4)At least 2 witnesses must—

(a)be together in the will-maker’s presence when the will- maker—

(i)complies with subsection (3); or

(ii)acknowledges that—

(A)he or she signed the document earlier and that the signature on the document is his or her own; or

(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)each sign the document in the will-maker’s presence.

(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).

[8]                 Here, the non-compliance with s 11 arises because Mr Smith’s signing of the document was not witnessed in accordance with this section.

[9]                 In my view, the evidence is sufficient to demonstrate that the draft will expresses Mr Smith’s testamentary intentions.

[10]              Mrs Smith, in an affidavit of 25 February 2021, deposes Mr Smith intended the draft will to be his final will. She says the will was professionally drafted and that she witnessed Mr Smith sign the document.

[11]              Mr Milnes, in an affidavit of 25 February 2021, deposes he is one of the partners in Helmore Stewart, and so is one of the named executors in the draft will.1 He deposes the draft will was prepared by one of Helmore Stewart’s lawyers, and the document expressed Mr Smith’s testamentary intentions.

[12]              I am satisfied all persons who may be affected by the granting of the order sought have consented to the application. Consent has been given the named beneficiaries of the draft will: Susan Depree, Sandra Harnett, Richard Smith and Christopher Smith.

[13]              Taking into account all these factors, I am satisfied the document annexed to the affidavit of Mrs Smith and marked “A” expressed Mr Smith’s testamentary intentions.

1      The will provides that the executors and trustees are Mrs Smith and one of the partners at the date of my death in the firm of Helmore Stewart, Solicitors of Rangiora, or the survivor of them.

Result

[14]              I make the order sought at para 1 in the originating application without notice dated 25 February 2021 for an order declaring the draft will to be a valid will pursuant to s 14 of the Wills Act 2007.

Solicitors:
Helmore Stewart, Rangiora