Sullivan (deceased) - [2013] NZHC 2997

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-2204 [2013] NZHC 2997

UNDER Section 14 of the Wills Act 2007

IN THE MATTER of the Estate of Joyce Ellen Sullivan

IN THE MATTER of an application by Philip Graham Hope for an order that a will be declared valid

Hearing: On the papers Counsel: A D Tweed Judgment 13 November 2013
Reissued: 14 November 2013

RECALLED RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
3 pm on the 13th day of November 2013.

Solicitors: Hope & Associates Legal, Oamaru.

Re Sullivan (deceased) [2013] NZHC 2997 [13 November 2013]

[1] This is a without notice application under s 14 of the Wills Act 2007 for an order declaring a will valid. The deceased, Mrs Sullivan, was a long-standing client of the law firm Hope & Associates Legal at Oamaru. On 27 September 2012 she met with Mr Hope on a scheduled appointment to give instructions for a will and enduring powers of attorney as to personal welfare and property matters. She provided instructions to Mr Hope. Mrs Sullivan had two children living, both adult and married with children, a son and a daughter. She also had a son who had predeceased her, who himself had two sons. Mrs Sullivan’s instructions were that her surviving son and daughter should be executors and residuary beneficiaries of the whole estate, subject to a specific gift to one of her grandsons, the older son of her deceased son.

[2] On the day after he took instructions, Mr Hope prepared a draft will which was complete except for the full name of the grandson beneficiary, which Mrs Sullivan was to provide. Mr Hope also prepared a file note recording the reasons given by Mrs Sullivan for the differential treatment of the two sons of her deceased son.

[3] On 4 October 2012 the deceased telephoned Mr Hope’s firm and provided the full name of her grandson. The draft was completed. A staff member of Mr Hope’s firm contacted the deceased that day, to invite her to make an appointment to see Mr Hope to sign the will and other documents which had been prepared. Mrs Sullivan said that she had visitors but would phone and make an appointment when she had time. Unfortunately, Mrs Sullivan died on 15 October 2012 without having signed the will.

[4] The application is for an order declaring valid as Mrs Sullivan’s last will the

document prepared by Mr Hope, and annexed to the affidavit of Mr Hope sworn on

26 June 2013 as exhibit C.

[5] The first issue is whether the application may be dealt with without notice. The parties who will be affected by the making of the order are the persons who would benefit under the previous will of Mrs Sullivan if the order sought were not made. Enquiries of other law firms in Oamaru disclosed that Mrs Sullivan had made

a will dated 16 February 1966. The evidence…

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.

Keep reading for free

Create a free CaseChat account to read Sullivan (deceased) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NZHC 2997
Decision Date: 13 November 2013

CaseChat Overview and Summary

The case of Re Sullivan (deceased) [2013] NZHC 2997 involves an application for an order declaring a will valid under s 14 of the Wills Act 2007. The deceased, Mrs Sullivan, had provided instructions to Mr Hope of Hope & Associates Legal to prepare a will. She intended for her surviving son and daughter to be executors and residuary beneficiaries, with a specific gift to one of her grandsons, the older son of her deceased son. The will was drafted but not signed before Mrs Sullivan's death. The application seeks to declare the drafted will as Mrs Sullivan's last will.

The primary legal issue before the court was whether the application could be dealt with without notice, and if the drafted will expressed Mrs Sullivan's testamentary intentions. Under r 7.46 of the High Court Rules, the application could be dealt with without notice if it was in the interests of justice. The court needed to consider the impact on the parties who would benefit under Mrs Sullivan's previous will, if it were to remain operative. Consents were obtained from all interested parties, including the minor grandson who would not benefit from the new will. The court concluded that acting on the basis of Ricky Bosch's consent was appropriate, considering the modest size of the estate and the productive negotiations that had already taken place.

The court held that the unsigned will did express Mrs Sullivan's testamentary intentions, given that she had provided clear instructions for its preparation shortly before her death. The court did not consider her failure to sign the will as an indication of a change of heart. As such, the court ordered that the drafted will be declared valid as Mrs Sullivan's last will.

Orders