Subramaniam

[2014] NZHC 1484

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-6780 [2014] NZHC 1484

IN THE MATTER OF

an application under Section 14 of the

Wills Act 2007

IN THE ESTATE OF

POOTHATHAMBY AYATHURAI SUBRAMANIAM

Hearing:	On the papers
Counsel:	R D Ganda
Judgment:	30 June 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4 pm on the 30th day of June 2014.

Solicitors:           Titirangi Law Centre, Titirangi.

Re Subramaniam (deceased) [2014] NZHC 1484 [30 June 2014]

[1]      On  26  February  1996,  Mr and Mrs Subramaniam  went  to  their  lawyer’s office to sign wills which had been prepared by the lawyer in accordance with their earlier instructions.  The wills were in essentially the same terms.  In the event of the spouse’s survival, the whole estate would go to that spouse, who would be appointed executor or executrix.  If the spouse did not survive, the couple’s two children and their solicitor would be appointed as executors and the whole estate would be left to the two children, two thirds to one child and one third to the other.

[2]      Unfortunately,  when  they  were  signing  the  wills,  an  error  was  made. Mr Subramaniam signed his wife’s will, and she signed his will.  The mistake was not   discovered   until   Mr   Subramaniam   died   on   4   October   2012.      Mr and Mrs Subramaniam were then living in Perth.  Application is now made for an order under  s 14  of  the  Wills Act  2007  (the Act)  declaring  valid  as  the  last  will  of Mr Subramaniam the will intended for him to sign but which was in fact signed by his wife.

[3]      The present application has been brought as a without notice application. The appropriate procedure for applications such as this is that contained in pt 19 of the High Court Rules.  Pursuant to r 19.5, I permit the proceeding to be commenced by originating application, and I treat the application filed as the originating application under pt 19.

[4]      Under r 7.46, I must determine whether the application can properly be dealt with without notice.   That will be appropriate only if  all persons who may be affected by the making of the order are aware of the application, and either consent to the order sought, or indicate that they do not wish to be heard in relation to the order sought.   The only persons potentially affected by the order sought are the widow and her two children.  The widow is the applicant and the two children have consented to the order sought.  In those circumstances I consider that the interests of justice require the application to be determined without serving notice of it.

[5]      I turn to the application itself.  There are essentially two ways to address the difficulty which is presented by the deceased having signed the wrong document. These are:

(a)       by  an  order  under  s 14  declaring  valid  the  will  intended  for  the deceased to sign but not signed by him;  or

(b)an order under s 31 of the Act correcting the will actually signed by the deceased.

[6]      A similar situation arose in Re Ioane.1    Orders were sought on both of these bases, in the alternative.  The s 14 option was not available in that case, because, as originally enacted, s 14 did not apply to wills made before 1 November 2007.  That restriction was removed by the Wills Amendment Act 2012, so that s 14 can be invoked in this case.

[7]      Section 14 applies to a document which appears to be a will but which does not comply with the signature and witnessing requirements in s 11 of the Act.  It is by now well established that a document which is not signed at all falls within the scope of the section.   The document sought to be declared valid here is in that category, in that it is not signed by the deceased.  It appears to be a will, and was drafted as such.

[8]      The Court may make an order declaring the document valid if it is satisfied the document expresses the deceased’s testamentary intentions.  That requirement is clearly satisfied here.  The document was prepared in accordance with the deceased’s instructions  as  his  will.   The fact  of his  signature on  the other  will,  which  he understood when he signed it was the will, establishes quite clearly that it expressed his testamentary intentions.

[9]      There will be an order declaring valid the document marked “A” attached to

the affidavit of Vijayarani Subramaniam sworn on 10 May 2014.

[10]     That order makes it unnecessary for me to consider the alternative course adopted by Allan J in Re Ioane of an order under s 31 of the Act correcting the will actually signed.  He comprehensively reviewed the authorities and concluded that an

order under s 31(2) should be made.  I respectfully agree with his reasoning and, had it been necessary to do so, I would have reached the same conclusion in this case.

[11]     It  is  of  some  interest  to  note  that  a  similar  question  has  recently  been considered by the United Kingdom Supreme Court, in Marley v Rawlings.2    The facts were essentially the same as those in this case, namely that the husband and the wife had each signed the wrong will.  The option of declaring valid the document prepared for Mr Rawlings but not signed by him was not available.  The Supreme Court first considered the interpretation of the will actually signed by the deceased,

applying s 21 of the Administration of Justice Act 1982  (UK).   That section is broadly  equivalent  to  s 32  of  the  New  Zealand Act.    The  Supreme  Court  also considered the possibility of rectification under s 20 of the United Kingdom Act. That is broadly equivalent to s 31 of the New Zealand Act.  The Court decided the case on the ground of rectification, and the will actually signed by the deceased was corrected to reflect the terms of the will prepared for the deceased.  The Court did not need to decide whether the same result could have been reached by means of the interpretation of the will actually signed.

[12]     The end result in that case is consistent with the end result in this case:  that the testator’s intentions, as expressed in the will prepared for signature by him in accordance with his instructions, are given effect.   The more direct route to that outcome which is available in New Zealand through the very beneficial remedial provision in s 14 means that I have been able to deal briefly with an issue which has clearly been a vexed one in the United Kingdom.

“A D MacKenzie J”