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 are to benefit, and the amounts, are to be selected by the trustees.

[8]   The 2012 document also makes monetary bequests to the named charities, but the residue of the estate is given to Ms McGillen, with the expression of the wish (but not so as to create a binding trust) that she distribute this in accordance with any wishes that Mr Smith may have made known to her.

[9]     Ms McGillen is not adversely affected by the removal of the specific bequest to her. She will receive a greater benefit as the residuary beneficiary under the 2012 document.

[10] None of the named charities will be adversely affected if the order sought is made. The gifts to the charities named in the 2010 will are repeated in the 2012 document. The only difference, so far as the specific charities are concerned, is in a bequest to the Temuka RSA. A gift of $5,000 to the Temuka RSA for its general purpose in the 2010 will is, in the 2012 document, a gift of $10,000 to the Temuka RSA for the use of its welfare section. On a strict view of the matter, the Temuka RSA is adversely affected, by the restriction of the use of the gift to its welfare section. I do not regard that as an adverse effect which should require the Temuka RSA to be given notice of this application. Any limitation which that restriction may impose on the use of the funds is more than outweighed by the doubling of the amount of the bequest. Also, there is an affidavit from Mr Peter Hogg, a friend of Mr Smith and an RSA member, in which Mr Hogg confirms that the use of the funds for the welfare section of the RSA accords with his understanding of Mr Smith’s wishes which he gained from discussions with Mr Smith.

[11] I also note that Mr Hogg was appointed an executor under the 2010 will, but not under the 2012 document. It is clear from his affidavit that Mr Hogg is aware of, and supports, the present application. His removal as executor does not require any formal steps for service on him.

[12] Therefore the only parties who would be adversely affected by the change are those unnamed and unidentified charities which might benefit from the exercise of the trustees’ discretion under the 2010 will. I consider that no charity has a sufficiently identifiable interest under the 2010 will to justify a right to be heard on the present application.

[13] I  accordingly determine, under  r 7.46 of  the High Court Rules, that the application can properly be dealt with without notice, on the grounds that  the interests of justice require the application to be determined without serving notice of the application.

[14] I therefore turn to the substantive application for an order declaring the 2012 document valid as Mr Smith’s last will. The evidence satisfies me that the instructions given to Mr Dalziel on 20 December 2012 represent Mr Smith’s testamentary intentions. Those testamentary intentions have been incorporated into the draft which was prepared on the basis of those instructions. As I have noted at [2], Mr Dalziel used a copy of the earlier will as a draft when he took instructions for the new will. At my request, Mr Dalziel has produced a copy of that document, to enable the Court to compare the instructions which Mr Smith gave with the 2012 document. That  comparison  satisfies  me  that  the  2012 document  does  express Mr Smith’s testamentary intentions as conveyed to Mr Dalziel.

[15] The evidence suggests that Mr Smith had firmly reached the decision that his estate should be dealt with in accordance with the instructions he gave. I am satisfied that the proper inference is that, if Mr Dalziel had presented the 2012 document to Mr Smith in January 2013, as intended, he would have signed that as his will. The fact that the 2012 document was not signed is due solely to Mr Smith’s death before arrangements for its execution could be made.

[16] I am  accordingly satisfied  that the 2012  document expresses  Mr Smith’s testamentary intentions, and that it should be declared valid.

[17]     I order that the document attached as exhibit B to the affidavit of Peter Charles Dalziel sworn on 3 May 2013 be declared valid as the will of Mr Smith.

“A D MacKenzie J”