Thompson v Cowan

[2020] NZHC 1769

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2020-476-20

[2020] NZHC 1769

UNDER

the Wills Act 2007

AND

IN THE MATTER

of the Estate of PAMELA JEAN THOMPSON, Deceased

BETWEEN

WAYNE TREVOR THOMPSON AND GRAHAM ANTONY JARVIS

Applicants

AND

DIANNE MARGARET COWAN

Respondent

Counsel:	R A Carruthers for Applicants
Judgment:	22 July 2020
(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 22 July 2020 at 10.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

THOMPSON v COWAN [2020] NZHC 1769 [22 July 2020]

An invalid will

[1]                 The applicants, Wayne Thompson and Graham Jarvis, seek an order pursuant to s 14 Wills Act 2007 (the Act) that an unsigned and undated document be declared a valid will of the deceased, Pamela Jean Thompson.

The factual background

[2]                 Ms Thompson died on 25 February 2019. Her last valid will was prepared by her solicitor, Rosemary Carruthers, and was signed on 26 September 2018. That will appointed as executors and trustees Mr Thompson (Ms Thompson’s son), Mr Jarvis (her cousin) and Dianne Cowan (her sister). It included bequests to a number of people, including Ms Cowan.

[3]                 On 26 September 2018 Ms Thompson also executed an enduring power of attorney for her personal care and welfare. On 20 November the enduring power of attorney for her property was completed.

[4]                 Ms Carruthers deposed that on 5 December 2018, Ms Thompson called at her offices to sign an agreement for the sale of her home. Ms Thompson advised Ms Carruthers that she wanted to make two changes to her will: she wished to remove Ms Cowan as a trustee, as Ms Cowan was not happy with that role; and she no longer needed to leave a bequest to Ms Cowan. Ms Carruthers drafted a will on that basis (the document).

[5]                 Ms Carruthers has no record of that document being posted or emailed to Ms Thompson. She explained that she was in frequent contact with Ms Thompson over the following period, but her records indicate those discussions only concerned the sale of Ms Thompson’s house. Ms Carruthers deposed that the document must therefore have been “overlooked in the context of the attention required to the sale of her home”.

[6]                 Ms Thompson’s health deteriorated during December 2018. She was assessed as requiring hospital level care. Her house was sold by her attorney. In mid-January, Ms Carruthers was contacted by Ms Thompson’s attorney about the terms of her will,

specifically with a concern that the costs of Ms Thompson’s future care might impact on her ability to make the bequests in the amounts she had directed. Ms Carruthers stated that she was told Ms Thompson would get in touch and arrange to meet with her about that concern, but that did not occur.

[7]                 Ms Thompson died on 25 February 2019 without signing the document prepared by Ms Carruthers on 5 December.

The application

[8]                 The document does not comply with s 11 of the Act because it was not signed and witnessed as required by s 11(2). Messrs Thompson and Jarvis therefore apply for an order under s 14 that the document, a copy of which has been exhibited by Ms Carruthers, be declared a valid will of Ms Thompson.

[9]                 Mr Thompson, Mr Jarvis and Ms Cowan have all consented to the document being declared as the last valid will of Ms Thompson.

The law

[10]Section 14 of the Act 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.

[11]              The meaning of “will” is set out in s 8(1), and includes a document made by a natural person that “disposes of property to which the person is entitled when he or she dies”. I am satisfied that the document appears to be a will.

[12]              It is clear that the document does not meet the requirements of s 11, and that it came into existence in New Zealand at the office of Ms Carruthers. The jurisdictional threshold for s 14 is therefore met.

[13]              Under s 14(2), the Court may make an order declaring the document to be a valid will if satisfied that it expresses Ms Thompson’s testamentary intentions. The Court in Caird v Caird summarised the approach to the assessment of whether the document adequately expresses the maker's testamentary intentions as follows:1

[39]      This Court has remarked that a person who in good faith sets out to express his or her testamentary intentions should not have those intentions thwarted by technicalities, and that the Court should endeavour to give effect to the deceased person's intentions. Where there is evidence of the person's testamentary intentions, it is better that they be given effect, in preference to the disposition of property which would take effect under any previous will, or in the situation of intestacy.

[40]      The existence of the document will of itself be an indication that the deceased person did not wish the disposition which would otherwise occur to take place. However, it must be established on the balance of probabilities [from] the evidence as a whole, including evidence of the will-maker’s statements and testamentary intentions, that the document expresses that person's intentions. The test is not an objective one. It is specific to the particular deceased person and no two cases will necessarily be the same. Any evidence which may assist to determine that question may be taken into account.

Discussion

[14]              The only evidence before the Court as to Ms Thompson’s testamentary intentions is that of Ms Carruthers. I accept Ms Carruthers’ evidence as reliable, bearing in mind that she had previously prepared wills for Ms Thompson in 2012, 2014 and 2018, as well as acting for her in other matters since 2005.2

1      Caird v Caird [2018] NZHC 1605 (footnotes omitted).

2      See Re Tutaki HC Hamilton CIV-2010-419-1208, 13 May 2011 at [40].

[15]              The only differences between the signed 26 September will and the document are those that Ms Thompson specified to Ms Carruthers in regard to Ms Cowan (above at [4]). The document clearly reflects those testamentary intentions, and does not otherwise alter the will Ms Thompson signed three months prior on 26 September.

[16]              It is relevant in this case that Ms Cowan has consented to the document being declared as Ms Thompson’s last valid will given she is the only person materially affected by it. However, as noted in Amundson v Raos:3

[3] Although the parties consent to making the orders … s 14 of the Act requires the Court to be satisfied that the document in question expresses the deceased person’s testamentary intentions before it may make an order declaring the document to be a valid will.

Therefore, although Ms Cowan’s consent may be relevant to whether the document indeed represented Ms Thompson’s understanding with her sister and resulting testamentary intention, the Court must still satisfy itself that that was indeed Ms Thompson’s testamentary intention.

[17]              As part of that assessment, it is relevant to consider why Ms Thompson did not sign the document prepared in December 2019. In Re Estate of Hickford (deceased) MacKenzie J considered three possibilities as to why the deceased did not sign the will:4

(a)he changed his mind about making a will;

(b)he overlooked or forgot about signing the will; or

(c)he did not think that he needed to do anything further.

[18]              MacKenzie J considered that scenario (a) would not meet the statutory test, as it would mean the document did not express the deceased’s testamentary intentions.5 It would be difficult to argue that scenario (c) applies in the present case, given Ms Thompson signed a valid will only three months prior, so likely understood what was

3      Amundson v Raos [2015] NZHC 2422, [2015] NZAR 1772.

4      Re Estate of Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009, at [9].

5 At [10].

required to execute a will. On the evidence of Ms Carruthers, the most likely scenario appears to be (b): that the signing of the document was overlooked in the context of Ms Thompson selling her house and moving into care.

[19]              MacKenzie J opined in Re Estate of Hickford (deceased) that scenario (b) may not meet the statutory test.6 However, there is the added element in this case that Ms Thompson’s health appears to have deteriorated rapidly after the document was prepared. The Court has validated draft wills in several cases involving similar circumstances.7 In Lauder v Lauder, the will-maker gave instructions to his solicitor in late-November 2011.8 He then became seriously ill, and died in February 2012 without signing the will. Gendall J found that:9

… it is abundantly clear that the draft will expresses the testamentary intentions of the deceased which he would have signed had the rapid deterioration of his condition, and intervening Christmas vacation of his solicitors, not intervened.

[20]              On the evidence of Ms Carruthers, a similar situation has occurred here. Ms Thompson’s declining health, combined with the sale of her house (which appears to have distracted those involved from the execution of the will), meant that Ms Thompson did not sign the document before her death. I am, however, satisfied on the evidence that the document expresses Ms Thompson’s testamentary intentions and that she would have signed it but for those intervening circumstances.

Order

[21]              I order that the undated and unsigned document, a copy of which is exhibited to the affidavit of Rosemary Ann Carruthers sworn on 15 October 2019, is a valid will of Pamela Jean Thompson.

Osborne J

Solicitors:

Rosemary Carruthers Law Offices, Timaru

6 At [10].

7      Re Tutaki, above n 2; Re Brundall (deceased) [2011] 3 NZLR 528 (HC); and Re Estate of Brown

HC Auckland CIV-2010-404-6328, 13 October 2010.

8      Lauder v Lauder [2012] NZHC 3155.

9 At [7].