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 of the enquiries made satisfy me that that will would be the operative will if the present application were not granted.  The evidence is that that earlier will has gone missing.   However, a photocopy of it is available.  I proceed on the basis that, if the present application were not granted, that earlier will dated 16 February 1966 would be operative.

[6]      Under  that  earlier  will,  the  estate  was  to  be  held  on  trust  for  such  of Mrs Sullivan’s children as should survive her for 15 years, with a gift over in favour of the children of any child not so surviving her.

[7]      Accordingly, the persons who will be adversely affected by the making of the order sought are the two sons of Mrs Sullivan’s deceased son.   They would each stand to take a one sixth interest in the residue, subject to their survival for the necessary period, if the earlier will were operative.  Mrs Sullivan’s surviving son and daughter will be better off under the document now sought to be validated.  Further, both have consented to the present application.

[8]      Consents have been obtained from each of the two grandsons.  Before giving that  consent,  they  had  been  advised  that  Mrs Sullivan’s  estate  was  modest, understood to be in the order $100,000.   They were advised to seek legal advice. Each of them did so before signing the consent.

[9]      One matter that needs to be considered, in deciding whether their consent means that it is in the interests of justice to deal with the application without notice, under r 7.46 of the High Court Rules, is that the younger grandson, Ricky Bosch, is a minor.   He was aged 16 (but close to his seventeenth birthday) when he gave his consent.  He would receive nothing under the document now sought to be declared valid.  Under the 1966 will he would receive a one-sixth share of the estate.

[10]     I raised the issue of his age with counsel in a minute, and invited a further memorandum.   Counsel has filed a helpful memorandum.   That memorandum attaches a letter from the solicitor who advised Ricky Bosch at the time he gave his consent.  Mr Morice was conscious of Ricky’s age.  He went carefully over what the estate’s solicitors were asking Ricky to sign and the effect of the same.  He proposed

a settlement, which was accepted by the solicitors acting for the estate.  The details of  that  settlement  are  not  before  me.     Mr Morice’s  letter  confirms  that  the negotiations have been productive in procuring an opening up of communication between Ricky Bosch and his extended family.  Mr Morice says that he found Ricky Bosch to be one of the more mature 16/17 year olds he had met.  Mr Morice did not at any time have any concern that he did not understand the process involved, or what was being asked of him.   Had that not been the case he would not have witnessed his signature to the consent.

[11]     In the circumstances, I am satisfied that it is appropriate to act on the basis of Ricky Bosch’s consent.   I am influenced in reaching that conclusion by the consideration that the estate is a modest one, and that to require formal steps to have Ricky Bosch represented by counsel in a formal on notice application to declare the will valid would impose considerable expense.   It would require that a litigation guardian be appointed to represent Ricky’s interests in the litigation involved in the application to declare the will valid.  I am satisfied that the interests of justice do not require that course.  Ricky’s consent is based on a settlement on which he has been independently advised.   It is not necessary to repeat or formalise the process by which he received independent advice by the appointment of a litigation guardian.  I accordingly order, pursuant to r 7.46, that the application may be dealt with on a without notice basis.

[12]     I turn to the substantive application itself.  Under s 14, the Court may make an order declaring the document valid as a will, if it is satisfied that the document expresses the deceased person’s testamentary intentions.   I am satisfied that the unsigned  will,  sought  to  be  validated,  does  express  Mrs Sullivan’s  testamentary intentions.  She had given instructions for a will to be prepared in that form less than two  weeks  before  her  death.    I  do  not  consider  that  her  failure  to  make  an appointment to sign the document indicates any change of heart on her part.

[13]     For these reasons, there will be an order declaring valid as the last will of the deceased the original of the document annexed marked C to the affidavit of Mr Hope sworn on 26 June 2013.

“A D MacKenzie J”