Tarr v McLaren
[2018] NZHC 241
•26 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-2884
[2018] NZHC 241
UNDER Section 14 of the Wills Act 2007 IN THE MATTER
Of the Estate of Dorothy Jean Dwyer
BETWEEN
NICHOLAS CHARLES PEARSON TARR and DAVID RAYMOND COURTNEY
Applicants
AND
MYRA ROSE McLAREN
Respondent
Hearing: (on the papers) Appearances:
K Narayan for Applicant
R Chapman for Respondent
J G French for Interested Party directed to be servedJudgment:
26 February 2018
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 26 February 2018 at 3.30pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Martelli McKegg, Auckland Cruickshank Pryde, Invercargill
French Burt Partners, Invercargill
TARR and COURTNEY v McLAREN [2018] NZHC 241 [26 February 2018]
Introduction
[1] The applicants seek an order, pursuant to s 14 of the Wills Act 2007, that an undated document (Document) be declared a valid will of the deceased, Dorothy Jean Dwyer (Deceased).
[2] The applicants are the Deceased’s former partner and the solicitor who had been acting for the Deceased prior to her death and who prepared the Document. The former partner would be a beneficiary under the Document if it were declared a valid will. Both applicants would be appointed executors and trustees of the Deceased’s estate under the Document if it were declared a valid will.
[3] The Deceased’s only sibling, who would be appointed executor and trustee of the Deceased’s estate and would be a beneficiary under the Document if it were declared a valid will, supports the application.
[4] The Deceased’s mother, who would be a beneficiary in the event of the Deceased dying intestate and who would be a conditional beneficiary under the Document if it were declared a valid will, consents to the order being made.
Background
[5]The Deceased died unexpectedly on 27 January 2017. She was 48 years old.
[6] At her death, the Deceased was survived by her sole sibling, Anne Denise Moodie, her sole surviving parent, Myra Rose McLean, and her de facto partner, Nicholas Charles Pearson Tarr. The Deceased had no children.
[7] According to Mr Tarr’s affidavit sworn on 30 November 2017, Mr Tarr’s relationship with the Deceased began in November 2014 and lasted until her death.
[8] At the time of her death, the Deceased had not executed a will in accordance with s 11 of the Wills Act 2007 – or at least none could be found after full enquires by Martelli McKegg, solicitors, at the request of David Courtney, the solicitor who had been acting for the Deceased before her death.
[9] However, on the Deceased’s instructions, Mr Courtney had prepared a draft will for the Deceased some months prior to the Deceased’s death. That draft is the Document that is the subject of this application. A copy of the Document is at Exhibit A to the Originating Application dated 30 November 2017. It is also Exhibit A to an affidavit sworn by Mr Courtney on 29 November 2017.
[10] The question for the Court is whether to declare the Document a valid will even if it does not meet the requirements of s 11 of the Wills Act.
The Wills Act 2007
[11]Section 8(1) sets out what a will is:
8 Meaning of will
(1)Will means a document that—
(a)is made by a natural person; and
(b)does any or all of the following:
(i)disposes of property to which the person is entitled when he or she dies; or
(ii)disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or
(iii)appoints a testamentary guardian.
[12]Section 11 provides:
11 Requirements for validity of wills
(1)A will must be in writing.
(2)A will must be signed and witnessed as described in subsections (3) and (4).
(3)The will-maker must—
(a)sign the document; or
(b)direct another person to sign the document on his or her behalf in his or her presence.
(4)At least 2 witnesses must—
(a)be together in the will-maker’s presence when the will- maker—
(i)complies with subsection (3); or
(ii)acknowledges that—
(A)he or she signed the document earlier and that the signature on the document is his or her own; or
(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)each sign the document in the will-maker’s presence.
(5)As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:
(a)that he or she was present with the other witnesses when the will-maker—
(i)signed the document; or
(ii)acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or
(iii)directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or
(iv)acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)that he or she signed the document in the will-maker’s presence.
(6)No particular form of words is required for the purposes of subsection (5).
[13] The key requirements are that the will is in writing, it has been signed, usually by the will-maker, and the will-maker’s signature has been witnessed in accordance with subsections (3) and (4).
[14]Section 14 provides that the High Court may declare a will valid. It provides:
14 High Court may declare will valid
(1)This section applies to a document that—
(a)appears to be a will; and
(b)does not comply with section 11; and
(c)came into existence in or out of New Zealand.
(2) The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
(3)The court may consider—
(a)the document; and
(b)evidence on the signing and witnessing of the document; and
(c)evidence on the deceased person’s testamentary intentions; and
(d)evidence of statements made by the deceased person.
[15]In terms of s 14(1)(a), the Document appears to be as will. It is headed:
This is the Last Will
of me
Dorothy Jean Dwyer
of Auckland, Key Account Manager
[16]In terms of the definition of a will in s 8(1), the Document:
(a)Was made by a natural person;
(b)Disposes of all of the Deceased’s property;
(c)It appoints Ms Moodie, Mr Tarr and Mr Courtney to be executors and trustees of the will.
Signature and witnesses apart, the only incomplete provision is clause 5 which required the Deceased to elect between burial or cremation.
[17] In terms of s 14(1)(b), the Document is in writing but it has not been signed by the deceased and there are no witnesses. It follows that the Document is not valid in terms of s 11.
[18] In terms of s 14(1)(c), a second affidavit sworn by Mr Courtney on 5 December 2017 attests that all matters relating to the drafting of the Document took place in Auckland. Accordingly, I am satisfied the Document came into existence in New Zealand.
[19] It follows that all of the matters identified in s 14(1) have been satisfied so, in in accordance with s 14(2), the Court may make an order declaring the Document valid if satisfied the Document expresses the Deceased’s testamentary intentions.
[20] Section 14(3) sets out the matters I may consider in deciding whether to make an order. As stated by McKenzie J in Re Campbell (Deceased):1
[15] The issue to be determined by the Court is whether the document expresses the deceased person’s testamentary intentions. That is to be determined by a consideration of all of the circumstances, including those set out in s 14(3). The matters listed in subs (3) are not exhaustive. The Court is not, by the terms of the subsection, restricted to those considerations. Any evidence which may assist to determine whether the document expresses the deceased person’s testamentary intentions may be taken into account. The evidence which may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant consideration. Evidence of the signing and witnessing of the document may, as in this case, include evidence as to why the document was not signed or witnessed at all.
[21] Affidavits sworn by Mr Courtney, Mr Tarr, and Ms Moodie and a document signed by Ms McLaren and witnessed by a solicitor provide helpful information on the matters to be considered with regard to s 14(3).
[22] Mr Courtney’s affidavit sworn on 29 November 2017 sets out the background to the preparation of the Document as follows:
(a)On 2 April 2014, at the Deceased’s instruction, Mr Courtney sent the deceased an initial draft will for the Deceased’s consideration. Under
1 Re Campbell (Deceased) [2014] NZHC 1632
that draft will, the Deceased would have left her estate to Ms Moodie, or, in the event Ms Moodie did not survive the Deceased, to Ms McLean. To the best of Mr Courtney’s knowledge, the Deceased did not execute that draft will.
(b)On 11 November 2014, the Deceased informed Mr Courtney she was about to enter into a relationship with another person and wanted advice on how to protect her interests.
It transpired that other person was Mr Tarr.
(c)Between January 2015 and September 2015, Mr Courtney and the Deceased corresponded with regard to the drafting of an agreement under the Property (Relationships) Act 1976.
(d)In September 2016, Mr Courtney sent the Deceased a draft Relationship Property Agreement for her consideration. The Deceased later told Mr Courtney she had discussed the draft Agreement with Mr Tarr who agreed with it.
(e)On 3 October 2016, the Deceased sent Mr Courtney an email with instructions to amend her will as follows:
(i)Mr Tarr to be able to continue to live in her house, either for a period of two years if a period had to be specified or for an unspecified period;
(ii)Upon sale of her house, repayment of debt to the bank and specified bequests to the Royal Foundation for the Blind, the Heart Foundation and the SPCA;
(iii)The remaining funds to be divided equally between Mr Tarr and Ms Moodie;
(iv)A life size statue of a golden setter to go to Jan Brownlie;
(v)Ms Moodie, Mr Tarr and Mr Courtney to be the executors.
(f)On 9 November 2016, Mr Courtney sent the Deceased the Document.
(g)Mr Courtney received no further communication from the Deceased regarding the Document before her death.
[23]In addition, in his affidavit, Mr Courtney also:
(a)States his belief that the Document accurately records the Deceased’s final testamentary intentions and that he has no reason to believe that the Deceased’s failure to sign the Document was due to any other reason than her becoming unwell;
(b)Produced a copy of the Deceased’s Death Certificate.
[24] The information in Mr Courtney’s affidavit is corroborated by an affidavit sworn by Mr Tarr on 30 November 2017. In his affidavit, Mr Tarr says:
(a)In May 2015, he and the Deceased began discussions on concluding an agreement under s 21 of the Property (Relationships) Act 1976;
(b)He and the Deceased reviewed the draft Relationship Property Agreement prepared by Mr Courtney and discussed how they wanted to treat their respective property.
(c)In November 2016, he and the Deceased were planning to get married and had begun planning their wedding. They also discussed getting the Agreement and the wills executed before Christmas.
(d)On 7 December 2016, after being very unwell with headaches, the Deceased was sent for an x-ray and was diagnosed with pneumonia for which she received treatment.
(e)In early January 2017, the Deceased and Mr Tarr discussed finalising the Relationship Property Agreement and their wills.
(f)On 22 January 2017, the Deceased was admitted to North Shore Hospital following a serious seizure at home. She was diagnosed as having suffered a Subarachnoid Haemorrhage and died on 27 January 2017.
[25]In his affidavit, Mr Tarr also says:
(a)He and the Deceased had seen each other’s respective wills and were happy with the way in which they intended to dispose of their respective estates;
(b)He has no doubt that the Document expresses the Deceased’s final testamentary intentions.
[26] By affidavit sworn on 16 January 2018, Ms Moodie says she supports the application made by Mr Tarr and Mr Courtney and that she confirms her wish to be appointed as one of the executors and trustees. Ms Moodie also makes references to some other matters which I note at the end of my judgment.
[27] By a document dated 24 January 2018 and signed by Ms McLaren and witnessed by a solicitor, Ms McLaren confirms that she consents to the Document being declared a valid will of the Deceased.
[28] Taking account of all of the above, I make the following findings with regard to the matters s 14(3):
(a)In all respects other than signature and witnesses, the Document has the appearance of being the Deceased’s will:
(i)It reflects the instructions given to Mr Courtney in the Deceased’s email of 3 October 2016;
(ii)It meets the definition of a will in s 8(1).
(b)The evidence of Mr Tarr is that the Deceased intended to sign the Document before Christmas 2016 but became ill with pneumonia and that she then intended to sign the Document in January 2017 but became very ill and died. This explains cogently why the Document was not signed and witnessed. It also indicates the Deceased would not have changed her mind about the will before she died
(c)I am satisfied from the information in the affidavits of Mr Courtney and Mr Tarr that the Document reflects the Deceased’s testamentary intentions. The fact that the Deceased’s mother and only surviving sibling support the Document being declared a valid will reinforces that finding.
(d)The only direct evidence of statements by the Deceased is her email of 3 October 2016 to Mr Courtney. That email confirms the Deceased was intending to make a will and had decided on the disposition of her estate and that disposition is reflected in the Document. There is also the evidence of Mr Courtney and Mr Tarr that confirm these matters.
[29] Accordingly, in accordance with s 14(2) of the Wills Act 2007, I am satisfied the Document expresses the Deceased’s testamentary intentions and I declare that:
(a)The Document at Exhibit A the Originating Application by the Applicants dated 30 November 2017 is a valid will by Dorothy Jean Dwyer, formerly of Auckland who died on 27 January 2017 at Auckland City Hospital, Auckland.
Other matters
[30] In her affidavit sworn on 16 January 2018, Ms Moodie also sets out various matters she has agreed with Mr Tarr and which she has been advised by counsel should be advised to the Court. These matters are not relevant to the decision I had to make
regarding the validity of the Deceased’s will but I record them because they were specifically brought to my attention.
[31]These are that Ms Moodie and Mr Tarr have agreed that:
(a)The proceeds of a life insurance policy to the value of $150,000 that was owned jointly by the Deceased and Mr Tarr should form part of the estate;
(b)A payment of $80,000 made to the ANZ Bank by Mr Tarr to reduce the Deceased’s mortgage on her home will form part of the estate so that any debt owed by the Deceased to Mr Tarr in respect of that payment is extinguished;
(c)Notwithstanding the terms of the Deceased’s father’s will, which vested the father’s estate equally in the Deceased and Ms Moodie, Mr Tarr as a beneficiary in the Deceased’s estate will not take any share in the Deceased’s father’s estate.
Costs
[32] Counsel for the applicants and Ms Moodie have filed a consent memorandum asking that the applicants’ costs, on an indemnity basis, be met out of the Deceased’s estate. I agree that is appropriate and order accordingly.
van Bohemen J
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