Stewart v Timms - [2019] NZHC 2952

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-502

[2019] NZHC 2952

IN THE MATTER of the estate of WAYNE STEPHEN HARROLD, Deceased

AND

Section 14 of the Wills Act 2007

BETWEEN

SASANI JENNY STEWART

Applicant

AND

MICHELLE BETH TIMMS and VICKI JANE GROUFSKY

Respondents

Hearing: 5 November 2019

Counsel:

M Phillipps for Applicant

W A L Todd for Respondents

Judgment

12 November 2019

JUDGMENT OF SIMON FRANCE J

[1] This is an application under s 14 of the Wills Act 2007 to declare a document to be a valid will. The document is a draft will prepared by a lawyer on instructions. The difficulty is that it remained unsigned for the 19-month period between drafting and the testator’s death. During that period there were several reminders to sign it. The trial issue is whether the draft will represented the testator’s intentions at the time of his death. The respondents say the will was not executed because the testator, Mr Wayne Harrold, no longer agreed with its contents.

STEWART v TIMMS and GROUFSKY [2019] NZHC 2952 [12 November 2019]

Facts

[2] Mr Harrold made a will on 13 April 2006. At the time he was in a de facto relationship with a woman named Linda Gibbs-Holt. That will appointed Mr Harrold’s sisters, Mrs Michelle Timms and Mrs Vicki Groufsky, the respondents in this case, as executors. Apart from some personal items left to family, the estate was left to Ms Linda Gibbs-Holt. If she predeceased Mr Harrold, then the estate would go equally to his sisters. Ms Gibbs-Holt died in 2009.

[3] In 2011 Mr Harrold began a de facto relationship with the applicant, Ms Sasani Jenny Stewart. That relationship continued until his death on 4 March 2019. Ms Stewart has a son, Z, from a previous relationship. The couple had no children and the evidence is that Mr Harrold treated Z as his own.

[4] In July 2017 the couple signed up to jointly buy a property. However, because the security being offered was another property solely in Mr Harrold’s name, and because he was the sole income earner, the bank advised it would not lend to Ms Stewart. The property was accordingly purchased in Mr Harrold’s name.

[5] It was at this time that the couple’s lawyer, Ms Smith, took instructions about a will. Her evidence is that Mr Harrold said that because the property was in his name, he would protect Ms Stewart by doing a will in her favour. Instructions were taken to appoint Ms Stewart as executor and leaving the estate to Ms Stewart and if she predeceased him, to the son Z. Ms Smith says that at that time Mr Harrold said he thought of Z as his own child.

[6] In the event of Ms Stewart predeceasing him, Mr Harrold wanted Z to also be the executor. Ms Smith advised he was too young, and Mr Harrold said he would think about who he…

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.

Continue reading Stewart v Timms

Details

AGLC: Stewart v Timms [2019] NZHC 2952
Case: [2019] NZHC 2952
Decision Date: 12 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Stewart v Timms involved an application to declare a draft will as valid under Section 14 of the Wills Act 2007. The applicant, Sasani Jenny Stewart, sought to have a draft will prepared by a lawyer on the instructions of the deceased, Mr Wayne Harrold, recognised as his final testamentary document. The respondents, Mr Harrold’s sisters Michelle Beth Timms and Vicki Jane Groufsky, argued that the will was not executed as it did not reflect Mr Harrold’s intentions at the time of his death.

The central legal issue was whether the draft will, which remained unsigned for 19 months before Mr Harrold’s death, accurately represented his testamentary wishes at the time of his passing. The court needed to consider the instructions given to the lawyer, the circumstances surrounding the drafting of the will, and any evidence of changes in Mr Harrold’s intentions or personal circumstances that might have led to a modification of the will.

The court found that the draft will, which appointed Stewart as the executor and left the estate to her and her son if she predeceased Mr Harrold, accurately reflected his intentions at the time it was drafted. The instructions were given in the context of a property purchase, where Mr Harrold wanted to protect Stewart’s interests. The court considered the evidence provided by the lawyer who drafted the will, Ms Smith, and Stewart, who corroborated the instructions given. The court noted that Mr Harrold had a history of procrastination and did not provide any evidence of changes in his intentions or circumstances that would suggest he had altered his will. The court concluded that the delay in signing the will was due to Mr Harrold’s struggle with appointing an executor and his procrastination, which did not indicate a change in testamentary intentions.

The court granted the application and declared the draft will to be a valid will of Wayne Stephen Harrold. The court also awarded costs to the applicant on a “costs follow the event” basis.

Orders