Smith - [2013] NZHC 2429

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2013-476-218 [2013] NZHC 2429

In the Estate of ARNOLD MEREDITH SMITH

Hearing:	On the papers
Counsel:	C A O'Connor
Judgment:	17 September 2013

JUDGMENT OF MACKENZIE J

Idirect that the delivery time of this judgment is 4 pm on the 17th day of September 2013.

Solicitors: Dalziel Strauss, Temuka.

Re Smith (deceased) [2013] NZHC 2429 [17 September 2013]

[1] This is an application under s 14 of the Wills Act 2007 for an order declaring valid as a will the undated and unsigned document attached to the affidavit of Peter Charles Dalziel sworn on 3 May 2013.

[2] The deceased, Mr Smith, was a client of Mr Dalziel, a solicitor practising at Temuka. Mr Dalziel had acted for him for some time and had prepared a will in August 2010. At the time of his death, Mr Smith was living at a residential care facility in Temuka. Mr Dalziel attended on him there on 20 December 2012, to deal with some matters relating to Mr Smith’s late wife’s estate, and to update Mr Smith’s will. Mr Dalziel took instructions for a new will. Mr Dalziel had with him for this purpose a photocopy of the August 2010 will. He went through each clause with Mr Smith and noted changes on the photocopy.

[3] Mr Dalziel explained to Mr Smith that it was unlikely that the new will could be signed before Christmas, but that he would be in touch in the New Year. Mr Dalziel had no reason to think that there was any particular urgency in having the will signed.

[4] The new will was drafted to reflect the instructions which Mr Dalziel obtained. It was typed on the day of Mr Dalziel’s visit to Mr Smith, but it was not returned to him then, and on his return to the office in January 2013 the document was inadvertently misplaced, so that it did not then come to Mr Dalziel’s attention. Mr Smith died on 20 February 2013, before the will could be signed.

[5] The document sought to be declared valid is the document which was typed in December 2012 to reflect the instructions taken by Mr Dalziel. I refer to that document for convenience as “the 2012 document”.

[6] The s 14 application has been made as a without notice application. The first issue which I must consider is whether there are any persons who may be affected by the making of the order sought who should have a proper opportunity to be heard on the application. The persons who may be affected are those who would take under the existing will, dated 27 August 2010, which will be operative if the order sought is not made.

[7] That will makes a number of monetary bequests to named charities and entities in the Temuka area, and to Lorraine McGillen. The residue is to be distributed by the trustees to charities in the South Canterbury area. The charities which…

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.

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Details

Case: [2013] NZHC 2429
Decision Date: 17 September 2013

CaseChat Overview and Summary

In the matter of the estate of Arnold Meredith Smith, the High Court of New Zealand was presented with an application to declare a document valid as a will under section 14 of the Wills Act 2007. The applicant, Peter Charles Dalziel, a solicitor who had acted for the deceased, sought to validate an undated and unsigned document that was intended to be the deceased's new will. The deceased, Mr Smith, passed away before he could sign the document. The will in question had been drafted based on instructions Mr Dalziel had taken from Mr Smith on 20 December 2012, and it was intended to update the will that Mr Dalziel had prepared in August 2010. The court needed to determine whether the application could proceed without notice to all interested parties, and if the document indeed represented the deceased's testamentary intentions.

The primary legal issue was whether the application could be heard without serving notice on all potential beneficiaries under the existing will, dated 27 August 2010. The court had to consider if any parties had a significant interest that would be adversely affected by the declaration of the new document as the valid will. The existing will made bequests to named charities and entities, with the residue to be distributed by trustees to charities in the South Canterbury area. The 2012 document, while similar in some respects, differed in the distribution of the residue, which was to be given to Ms Lorraine McGillen. The court found that Ms McGillen and the named charities would not be adversely affected by the change, and the only potentially affected parties were the unspecified charities that might benefit from the trustees' discretion under the 2010 will. The court concluded that these unspecified charities did not have a sufficiently identifiable interest to warrant notice of the application.

The court determined that the application could proceed without notice, as the interests of justice did not require otherwise. Turning to the substantive application, the court was satisfied that the instructions given to Mr Dalziel accurately reflected Mr Smith's testamentary intentions, which were incorporated into the 2012 document. The court found that if the 2012 document had been presented to Mr Smith for signature, he would have signed it as his will. Given that Mr Smith died before this could occur, the court held that the 2012 document should be declared valid as Mr Smith's last will. Consequently, the court ordered that the 2012 document be declared valid as the will of Mr Smith.

Orders