Smith v Shaw HC Auckland CIV 2010-442-239

[2010] NZHC 1622

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2010-442-239

IN THE MATTER OF     an application pursuant to section 14 Wills

Act 2007

AND

IN THE ESTATE OF      ELIZABETH SHAW

BETWEEN  VIRGINIA SMITH AND CATHERINE OLDHAM

Plaintiffs

ANDSTEVEN SHAW Defendant

On the papers

Counsel:         G J Praat for the plaintiffs

Judgment:      14 September 2010

JUDGMENT OF MALLON J

Introduction

[1]      The plaintiffs, who are the sisters of the deceased Elizabeth Shaw, seek an order declaring that a document purporting to be the will of Elizabeth is a valid Will (s 14 of the Wills Act 2007).  The document complies with the requirements for a valid will except that it has been witnessed by one witness rather than two witnesses

(s 11 of the Wills Act).

SMITH AND OLDHAM V SHAW HC WN CIV-2010-442-239  14 September 2010

Factual background

[2]      The application is supported by affidavits from the two plaintiffs as well as from Elizabeth’s father (the defendant).   The affidavits provide the following background information.

[3]      Elizabeth died in Nelson on 15 February 2010.  She was 38 years old.  She was not married and did not have children.   At the time of her death she was survived by her two sisters and her father.   Her mother died in 2006.   Her sister Catherine Oldham had one child, Daniel, who was 8 years old.  Her sister Virginia Smith had two children, Benjamin who was 9 years old and Sophie who was 7 years old.

[4]      Her assets comprised a property in Nelson with a value of about $275,000 but subject to a mortgage of approximately $160,000, funds of about $12,000 and personal possessions.  Her funeral expenses were about $8000.

[5]      Prior to her death Elizabeth had been living in Nelson from November 2008. Before that, and from about December 2007, she had been living in Singapore where her father worked.    In  June  2008,  while  she was  living in  Singapore,  she  was diagnosed  with  cancer.    In  October  2008  she  prepared  the  document  that  the plaintiffs seek to have declared a valid will.

[6]      The document is entitled “Will of Elizabeth Shaw”.   On the cover page is “LawOnline” (there are no solicitors referenced anywhere in the document).   The document states that Elizabeth revokes all earlier wills.  She appoints the plaintiffs as her executors and trustees.  She gifts a ring to each of the plaintiffs and the sum of

$10,000 to the New Zealand Cancer Society.  She gifts her property to her nephew and neice, Benjamin and Sophie.   She gifts the residue of her estate to Ben and Sophie and to her other nephew, Daniel.  The document sets out the trustees’ powers and directs that Elizabeth’s body is to be cremated.  The document purports to be signed by Elizabeth as “her last will”, and is signed by her father, as witness, on

15 October 2008.

[7]      Her father explains that the document was signed at the time that Elizabeth was undergoing a major procedure for her cancer.   Elizabeth was living with her father at the time.  He does not recall Elizabeth discussing the document with him. Nor does he recall signing the document.  However he does recognise the signature on the document as his.  He says that there was nothing in Elizabeth’s behaviour at this  time  that  would  lead  him  to  think  that  she  did  not  have  the  capacity  to understand what she was doing.  He says that he is not aware of any other document that Elizabeth may have prepared in the nature of a will.

[8]      Her father does recall that she mentioned that she felt no responsibility to provide for her sisters since they would benefit from their father in due course.  He says that she also commented that Daniel was in a stronger financial position than Ben and Sophie, so she thought she should be more generous to Ben and Sophie and that they would have an obligation to do something to make her proud.

[9]      Elizabeth’s sister, Catherine, recalls Elizabeth saying in November 2008 that she had made a will as she did not want to die on the operating table without having done so.  This was in the context of Elizabeth having an operation, and Catherine commenting that she had not made her will but intended to do so for herself and Daniel.  Catherine also recalls overhearing Elizabeth mentioning to someone in May

2009 that she had left something in her will to the Cancer Society.  Like her father, Catherine has no reason to think that Elizabeth was not aware of what she was doing at the time she prepared the October 2008 document.

[10]     Elizabeth’s other sister, Virginia, also recalls Elizabeth mentioning in about September 2008 that she was going to make a will.   This was in the context of a discussion before Virginia visited Elizabeth in Singapore.  Elizabeth asked Virginia if she had made a will in case the plane crashed.  Elizabeth mentioned that she was making one before her surgery, in case the worst happened during the surgery.  The surgery was planned for about October 2008 and so the document witnessed on

15 October 2008 fits with this discussion.

[11]     Virginia looked after her sister from July 2009.  Virginia says that Elizabeth mentioned to her that there would be something for Ben and Sophie depending on

them gaining some achievement.   Virginia was not sure if this was a discussion about a will but did not enquire further as she did not want to talk about this at the time.  Virginia also says that Elizabeth was clear and lucid until probably her last week.

Jurisdiction under Wills Act

[12]     The Wills Act applies where a deceased dies after 1 November 2007 (s 4 of the Wills Act).   As the document which purports to be a will is also dated after

1 November 2007, there is no limitation on the provisions of that Act that apply (s 40 of the Wills Act).

[13]     A will is defined as meaning a document that is made by a natural person and which does any or all of three things (s 8 of the Wills Act).  That includes disposing of  property to  which  the  person  is  entitled  when she  dies.    The  October  2008 document does this.

[14]     To be a valid will the will must be in writing; signed by the will-maker; and at least two witnesses must be together when the will-maker signs the document, each  state  on  the  document,  in  the  will-maker’s  presence,  that  the  witness  was present when the will-maker signed the document, and each sign the document in the will-maker’s presence (s 11 of the Wills Act).   The October 2008 document is in writing and is signed by Elizabeth but only one witness, her father, has signed the document stating that she signed the document in his presence and that he has signed the document in her presence.

[15]     The jurisdiction to make an order declaring a document to be a valid will arises where a document appears to be a will and does not comply with section 11 of the Act (s 14 of the Wills Act) as is the case here.   It does not matter that the document  here  was  made  in  Singapore,  because  the  jurisdiction  applies  to  a document whether it came into existence in or out of New Zealand.

[16]     The document may be declared valid if the Court is satisfied that it expresses the deceased person’s testamentary intentions (s 14(2) of the Wills Act).  The Court

may  consider  the  document,  evidence  on  the  signing  and  witnessing  of  the document, evidence on the deceased person’s testamentary intentions and evidence of statements made by the deceased person (s 14(3) of the Wills Act).

Should the jurisdiction be exercised

[17]   I am satisfied that the October 2008 document expresses Elizabeth’s testamentary intentions.

[18]     Looking at the document, it is a formal document, which is described as the last will of Elizabeth.  It contains the sort of things that a will ought to contain.  It is witnessed.   The “LawOnline” description suggests that Elizabeth has found a precedent will on the internet, rather than having her will prepared by solicitors, which helps explain why the will is not witnessed by two witnesses, as is required for it to be a valid will.

[19]     There is evidence about the signing and witnessing of the will.  Elizabeth’s father’s evidence is that it is his signature on the will.   Although he cannot recall witnessing the will he must have done so.  The document says that he was present when Elizabeth signed the will.

[20]     There is evidence about the deceased’s intentions.   They are set out in the document.  Those intentions are consistent with the evidence from each of those who have given affidavit evidence.  There is nothing inexplicable about those intentions as to make one cautious about accepting the evidence.   The evidence explains Elizabeth’s thinking in make her gifts, primarily to Ben and Sophie.   Elizabeth’s father would stand to benefit under the intestacy rules if the will were declared invalid because, under s 77(5) of the Administration Act, Elizabeth’s estate would pass to her father.  He is also the only person who might have been a person entitled to make a claim under the Family Protection Act 1955.  He supports the application to  have  the  will  declared  valid  as  he  believes  the  document  to  be  a  genuine expression  of  Elizabeth’s  wishes.    Catherine  also  supports  the  application  even though she is disappointed that her son did not receive an interest in the property.

[21]     I  am  satisfied  that  there  is  no  person  who  might  otherwise  benefit  on intestacy who has not been heard.  Elizabeth’s two sisters are represented.  They in turn represent the interests of their respective children (who, other than under the will, would have no claim).

Result

[22]     Accordingly  I declare  the  original  of  the  document,  a  copy of  which  is attached as Exhibit A to Catherine Oldham’s affidavit sworn on 10 June 2010, to be

a valid will.

Solicitors:

G Praat, Knapps Lawyers, Nelson, [email protected]

Mallon J