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.

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.

Continue reading Thompson v Cowan

Details

AGLC: Thompson v Cowan [2020] NZHC 1769
Case: [2020] NZHC 1769
Decision Date: 22 July 2020

CaseChat Overview and Summary

In the case of Thompson v Cowan, the applicants, Wayne Thompson and Graham Jarvis, sought a declaration that an unsigned and undated document was the valid will of the deceased, Pamela Jean Thompson. The document in question was drafted by the deceased's solicitor, Rosemary Carruthers, to reflect changes the deceased wished to make to her will, specifically removing Dianne Cowan as a trustee and altering a bequest to her. The key legal issue was whether the High Court could, under section 14 of the Wills Act 2007, declare the unsigned document to be a valid will of Ms Thompson if it expressed her testamentary intentions.

The Court considered whether the document, despite not being signed, sufficiently expressed Ms Thompson's testamentary intentions. The Court found that the document clearly reflected the changes Ms Thompson had specified and did not alter other provisions of her will signed three months prior. While Ms Cowan, who was materially affected, consented to the document being declared the last valid will, the Court noted that consent alone was not determinative. Instead, the Court had to be satisfied that the document expressed Ms Thompson's intentions. The Court accepted Ms Carruthers' evidence and concluded that Ms Thompson likely overlooked signing the document due to her declining health and the sale of her house. The Court found that the document expressed Ms Thompson's testamentary intentions and would have been signed but for the intervening circumstances.

Ultimately, the Court ordered that the undated and unsigned document was a valid will of Pamela Jean Thompson.

Orders