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Wardill v Anderson

Wardill v Anderson

Case [2016] NZHC 3114 16 December 2016

Testamentary Intentions

Validation of Wills

Undue Influence

Succession Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003017 [2016] NZHC 3114

IN THE MATTER
of an application pursuant to section 14 of

the Wills Act 2007

AND

IN THE MATTER

of the estate of Sandy Maureen Anderson, Deceased

BETWEEN

PATRICIA DIANE WARDILL AND DAVID ROBERT PASLEY Applicants

CHRISTOPHER GRANT ANDERSON Interested Party

JOHN RATTRAY Interested Party

Hearing: 19 September 2016

Appearances:

J H Hunter for Applicants
D A Campbell and D R Duffield for C G Anderson
J M Skinner for J Rattray

Judgment:

16 December 2016

JUDGMENT OF PALMER J

This judgment is delivered by me on 16 December 2016 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors & Counsel:
J H Hunter, Barrister, Auckland
Wardill Pasley Law, Auckland
Kensington Swan, Auckland
Skinners Law, Auckland

WARDILL & PASLEY [2016] NZHC 3114 [16 December 2016]

Summary

[1] Ms Sandy Anderson died on 30 May 2015. On 4 February 2015 and 14 May

2015 she met with her solicitor, Ms Patricia Wardill, and gave instructions for a new will. She died without signing it. Ms Wardill has applied to validate the unsigned will under s 14 of the Wills Act 2007, out of her sense of duty to her former client. Mr Chris Anderson, Sandy’s brother, supports the application and Mr John Rattray, Sandy’s de facto partner, opposes it.

[2] There are two questions involved in analysing whether a document represents a deceased’s testamentary intention and can be validated under s 14. First, did the document represent the deceased’s testamentary intentions at the time the instructions for its drafting were given? Second, is there a good explanation for why the formalities required for the document to be a valid will were not fulfilled before death?

[3] I am satisfied the answer to both questions is positive. I am satisfied on the evidence that, while Sandy loved John, she also felt he tried to monitor and control her interactions with others. He may not have realised she felt that and he may not have thought he did. But Sandy kept her instructions for the will secret from John and was clear with Ms Wardill about her wishes. Sandy avoided conflict, including over property issues with John. And Sandy was concerned to keep the peace between her and John in her last days. One way of doing that was not to tell John about the draft will and not to take steps to sign it which would have risked him finding out about it. The evidence satisfies me that final version of the unsigned will represents Sandy’s genuine testamentary intentions and, under s 14 of the Wills Act
2007, I declare it valid.

Outline of factual context

[4] Sandy was born on 6 June 1960. She died of cancer on 30 May 2015 at the age of 54. Her brother Chris is nearly two years older. Sandy’s elderly parents and another brother, David, do not feature in this case.

[5] Sandy…

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 Wardill v Anderson

Details

AGLC: Wardill v Anderson [2016] NZHC 3114
Case: [2016] NZHC 3114
Decision Date: 16 December 2016

CaseChat Overview and Summary

In the case of Wardill & Pasley v Anderson, the court was asked to determine whether a draft will, which had not been signed by the deceased before her death, should be validated under the Wills Act 2007. The draft will had been prepared by the deceased’s solicitor, Ms Wardill, based on instructions given by the deceased, Sandy Anderson, on two separate occasions. Ms Wardill brought the application to validate the draft will, motivated by a sense of duty to her former client. Sandy’s brother, Chris Anderson, supported the application, while Sandy’s de facto partner, John Rattray, opposed it. The court had to decide two issues: first, whether the draft will represented Sandy’s testamentary intentions at the time the instructions for its drafting were given; and second, whether there was a good explanation for why the formalities required for the document to be a valid will were not fulfilled before death. The court found that the draft will represented Sandy’s genuine testamentary intentions and that there was a good explanation for why the formalities were not fulfilled before her death. The court validated the draft will under s 14 of the Wills Act 2007. The court was satisfied that Sandy had kept her instructions for the will secret from John because she was concerned about his reaction and wanted to avoid conflict with him. The court concluded that one way for Sandy to keep the peace with John in her last days was not to tell him about the draft will and not to take steps to sign it which would have risked him finding out about it. The court declared the draft will to be a valid will.

Orders