Ward
[2020] NZHC 2616
•7 October 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2020-425-000060
[2020] NZHC 2616
UNDER the Wills Act 2007 IN THE MATTER
of the Will of JENNIFER FLORENCE WARD
BETWEEN
ANTHONY JAMES IRVINE
Applicant
Hearing: On the papers Appearances:
M J Foley for Applicant
Judgment:
7 October 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 7 October 2020 at 3.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 7 October 2020
Introduction
[1] This is a without notice application for an order under s 14 of the Wills Act 2007 (the Act), declaring a document to be the valid will of the deceased, Jennifer Florence Ward.
RE WARD [2020] NZHC 2616 [7 October 2020]
[2] As a preliminary issue I must determine, under r 7.46(2) High Court Rules 2016 whether this application can be dealt with without notice. I am satisfied that all persons who might be affected by the making of the order sought are aware of the application and have consented to it. In those circumstances, I am satisfied that the interests of justice require the application to be determined without notice.
Background to the application
[3] The deceased made a will in 1998, when she was married to her first husband, Mr Ward. With Mr Ward she had two children; Joanna (Jodie) Ward and Darren Keith Ward. Both children have significant intellectual disabilities and, although they are now adults, they live in sheltered accommodation under the care of IHC. Mr Ward died on 24 April 2003. The deceased subsequently married Peter William Kissell in 2011. The second marriage had the effect of revoking the will the deceased had made in 1998. Mr Kissell died on 17 February 2013.
[4] The deceased met with her lawyer, Mr Anthony Irvine, at Scholefield Law in Invercargill in late 2019. During this meeting Mr Irvine explained that her 1998 will had been revoked on her marriage to Peter Kissell.
[5] They reviewed that will and decided there were only three minor changes required:
(a)her occupation needed to be changed as she was now a physio assistant;
(b)it was decided that rather than reappoint Mr Irvine as co-executor who was close to retirement, she would appoint one of the other partners in that firm; and
(c)as co-trustee of the K J and J F Ward Family Trust (the Trust), Mr Irvine discussed with her, her wishes and the needs of her children as set out in cl 6 of the will.
[6] The deceased gave Mr Irvine instructions to update her will accordingly and he did so. It is this draft will which is sought to be validated as her will.
[7] Although Mr Irvine endeavoured to make contact with the deceased, unfortunately before that occurred she died on 13 March 2020.
[8] The draft will leaves two legacies. Both legacies are of $15,000, one of which is to go to the IHC (Southern Branch), and the other to go to Joanne Wilson, a long term friend of the deceased who is also property manager for the deceased’s adult children, as well as a trustee of the Trust. The residuary estate falls to the Trust as it did in the 1998 will. The beneficiaries of the Trust are the deceased, her late first husband, and her children. The charitable beneficiaries include the IHC. In the draft will, at cl 6, the deceased expresses her wishes that the assets of the Trust are to be made available for the benefit of her children.
[9] The following parties have consented to this application and copies of the consents are annexed to the affidavit of Mr Irvine:
(a)the IHC;
(b)Ms Wilson;
(c)Ms Wilson and Mr Irvine in their capacity as trustees of the Trust; and
(d)Ms Wilson in her capacity as property manager for both of the deceased’s adult children.
[10] Mr Irvine deposes to the fact the draft will accurately reflects the deceased’s testamentary intentions and in all material respects, her wishes remain the same as they did in 1998 when she made her last valid will.
Section 14 Wills Act
[11] The draft will prepared by Mr Irvine in late 2019 is sought to be declared a valid will under s 14 of the Act. That section 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.
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.
[12] The document meets all the requirements of s 14(1)(a). It does not comply with s 11 of the Act because it has not been signed and witnessed in the prescribed manner under s 11(2).
[13] The next issue is whether the document expresses the deceased person’s testamentary intentions. That is to be determined by a consideration of all the circumstances, including those set in s 14(3). I have no doubt, having considered Mr Irvine’s affidavit, that the deceased carefully considered her existing will, sought minor changes be made to it to update it to reflect current circumstances, and there were no remaining issues which were still to be determined.
[14] The fact the deceased had not seen the draft is not an impediment to this determination. As was discussed in Re Campbell (deceased),1 where MacKenzie J noted that “under New Zealand law there is not a distinction to be drawn between documents that have never been seen or approved, and documents which have been seen by the deceased, although not signed”.2 The question is simply whether the Court is satisfied that the document sought to be validated expresses the deceased’s testamentary intentions on the balance of probabilities, which I am in this case.
1 Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706.
2 At [20].
[15]Accordingly, I make the following order:
The document, a copy of which is annexed, as exhibit F, to the affidavit of Anthony James Irvine sworn on 18 September 2020 is declared to be the valid last will of the deceased, Jennifer Florence Ward.
Solicitors:
Scholefield Law, Invercargill
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