Teixeira

[2021] NZHC 982

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-615952

[2021] NZHC 982

UNDER

the Wills Act 2005

IN THE ESTATE

of LAURENCE STEPHEN TEIXEIRA

(deceased)

AND

IN THE MATTER

of an application for validation of a document as a will

Appearances:	M Datt for S P Teixeira and M E Eastabrook (Applicants)
Judgment:	5 May 2021
(Determined on the papers)

JUDGMENT OF JUSTICE OSBORNE

as to validation of Will

This judgment was delivered by me on 5 May 2021 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE TEIXEIRA [2021] NZHC 982 [5 May 2021]

An application for validation of a document as a will

[1]    The applicants, Stephen Paul Teixeira and Michelle Gay Eastabrook (the applicants), are the only children of the late Laurence Stephen Teixeira (Mr Teixeira) who died on 26 August 2020. Mr Teixeira was predeceased by his wife, Patricia Teixeira (the mother of the applicants).

[2] The application seeks an order under s 14 Wills Act 2008 (the Act) validating a will signed by Mr Teixeira on 9 November 2010 (the document). The document is not a valid will as it was witnessed by only one person, contrary to the requirements of s 11(4) of the Act.

History

[3]    The document was prepared by Mr Teixeira’s solicitors and delivered to him for perusal some time in 2010. After that there was no contact between Mr Teixeira and his solicitors in respect of the document. No further instructions in respect of any testamentary matters were received by the solicitors thereafter in any form.

[4]    It was only after the death of Mr Teixeira that his solicitors received the document from the applicants. At that time, Mr Teixeira’s solicitor noted that the document had been witnessed by only one person.

[5]    After the proceeding was filed, the applicants were requested to provide further evidence as to how the 9 November 2010 document had been treated by the deceased in the years after he signed it.

[6]    The applicants’ joint affidavit records that Mr Teixeira mentioned to them a number of times that he had made a will since the passing away of the applicants’ mother. The applicants explain that Mr Teixeira wanted the applicants to know where he kept his will and other important papers. They say they clearly remember how their father described the folder where he kept his important documents, including the will. They recall Mr Teixeira saying that the applicants could access the folder “if he was no more”. The folder was a red concertina folder which Mr Teixeira kept in the main

lounge of his apartment — he would often point to the folder as the place where the applicants would find his will when he passed away.

[7]    The applicants consider that their father kept his affairs in a tidy state. They took him to have clearly told them that he had already properly recorded his testamentary intentions in the November 2010 document in the red concertina folder. They recount that Mr Teixeira had mentioned, particularly in his final years, that he was pleased that he had made some provision for his four grandchildren as they would find the money beneficial.

[8]    The document to be validated provides a gift of $20,000 to each of Mr Teixeira’s four (named) grandchildren. The residue is left equally to Mr Teixeira’s two children (the applicants).

The deceased’s 1998 will and the questions of service

[9]    The applicants ask to proceed on a without notice basis. That requires a consideration of the interests of those who would benefit from Mr Teixeira’s earlier will which is dated 5 June 1998 (the 1998 will). The 1998 will left Mr Teixeira’s entire estate to his wife, Patricia Teixeira, the mother of the applicants.

[10]   The 1998 Will provided that, if Patricia Teixeira predeceased Mr Teixeira (as she did), then his estate would be divided equally between the applicants. The grandchildren were provided for only in the event that one of the applicants predeceased Mr Teixeira.

[11]   As noted, the document to be validated will provide a gift of $20,000 to each of the four grandchildren, with the residue divided equally between the applicants.

[12]   Accordingly, it is only the applicants who are prejudiced by the validation of the 2010 document as the gifts to the grandchildren reduce the size of the estate to be divided between the applicants.

[13]   I am satisfied in those circumstances that it is not necessary that this proceeding be served on any other person.

Outcome

[14] Under s 14(2) of the Act, the Court may make an order declaring a document a valid will, if satisfied that the document expresses the deceased person’s testamentary intentions. It is not a question of the beneficiaries’ consenting – the Court must be satisfied that the document records the deceased’s testamentary intentions.

[15]   The evidence satisfies me that the 9 November 2010 document expresses Mr Teixeira’s testamentary intentions. Mr Teixeira’s execution of it before a witness, his careful storage of it and subsequent discussions with and his explanations to the applicants taken together uncontrovertibly establish those intentions.

Order

[16]I order:

(a)service of the proceeding on any other person is dispensed with; and

(b)the  document  signed   by   Laurence   Stephen  Teixeira   and   dated 9 November 2010, as witnessed by Grace Joel, is declared to be the valid will of the said Laurence Stephen Teixeira.

Osborne J

Solicitors:
Berman & Burton, Auckland