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Watt v Owston-Doyle

Watt v Owston-Doyle

Case [2015] NZHC 1292 9 June 2015

Validation of Will

Probate

Testamentary Intentions

Succession Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-485-601528 [2015] NZHC 1292

IN THE MATTER
of an application for Probate in Solemn

Form pursuant to R 27.6 High Court Rules

IN THE MATTER

of the Estate of MICHAEL OWSTON- DOYLE late of Auckland, deceased

IN THE MATTER

of an application pursuant to s 14 Wills
Act 2007

BETWEEN

SYLENA EVE OWSTON WATT, JO- ANNE MICHELLE PETTYJOHN, LISA JANINE ROBERTS

Plaintiffs

AND

SYLVIA MAY OWSTON-DOYLE Defendant

Hearing: 4 June 2015

Appearances:

P G Revell for Plaintiffs
No appearance for Defendant

Judgment:

9 June 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
9 June 2015 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Corban Revell Lawyers, Auckland

WATT v OWSTON-DOYLE [2015] NZHC 1292 [9 June 2015]

[1] The plaintiffs make application for:

(a) Validation of the unsigned will of Michael Owston-Doyle, under s 14 of the Wills Act 2007; and

(b) Probate of the will in solemn form.

[2] The plaintiffs have truncated what is normally a two-step process and have requested the Court to proceed by way of formal proof to make the orders sought. I have something to say briefly about the procedure adopted below, but for present purposes I am primarily concerned with the merits.

Background

[3] Mr Michael Owston-Doyle died at Auckland on 1 June 2014. He is survived by his wife, Sylvia and his six children, two of whom, Sylena Watt and Jo-Anne Pettyjohn, are two of the three plaintiffs in their capacity as executors. The third in that capacity is Lisa Roberts, a partner of the firm Corban Revell.

[4] On 14 May 2014, at the request of Jo-Anne Pettyjohn, Mr Allen, a registered legal executive employed by Corban Revell, saw at the offices of Corban Revell Mr Owston-Doyle, Sylvia, Jo-Anne Pettyjohn and Jo-Anne’s husband.

[5] Mr Allen has produced an exhibit of his handwritten notes made at the meeting. Mr Allen also deposes that he drew the document intended to be Mr Owston-Doyle’s last will at the offices of Corban Revell some time between the date of 14 May 2014 and 29 May 2014. He firmly believes that the document he drew reflected Mr Owston-Dolye’s testamentary intentions as of that day.

[6] On 29 May 2014, Mr Allen was telephoned by Jo-Anne, who informed him that her father had been admitted to Waitakere Hospital for surgery and that it was

anticipated that he would be discharged after surgery to another facility in Glen

Eden.

[7] Mr Allen also visited Mr Owston-Doyle in Waitakere Hospital on 30 May

2014. He says he read the will over to Mr Owston-Doyle who appeared to be in some discomfort and kept his eyes closed during that process. After he had read to him the main clauses in the document, i.e. clauses 1 to 6, 8 and 9, he said yes.

[8] Mr Allen asked the doctor on duty whether he or another staff member would…

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 Watt v Owston-Doyle

Details

AGLC: Watt v Owston-Doyle [2015] NZHC 1292
Case: [2015] NZHC 1292
Decision Date: 9 June 2015

CaseChat Overview and Summary

In the case of Watt v Owston-Doyle, the plaintiffs, Sylena Watt, Jo-Anne Pettyjohn, and Lisa Roberts, sought validation and probate of an unsigned will of Michael Owston-Doyle under the Wills Act 2007. The defendant, Sylvia Owston-Doyle, did not appear in the proceedings. The plaintiffs argued that the draft will, which was read to Mr Owston-Doyle before his death, accurately reflected his testamentary intentions and should be validated and granted probate. The legal issues before the court were whether the unsigned will could be validated under section 14 of the Wills Act 2007, and if so, whether probate in solemn form should be granted. The court found that the draft will did indeed reflect the deceased's testamentary intentions, and thus validated the will under section 14. The court also granted probate in solemn form as the executors' affidavits complied with the necessary criteria. The court emphasised the importance of following the proper procedural steps when applying for validation and probate, despite granting indulgence in this instance due to the straightforward nature of the case.

The reasoning of the court was grounded in the statutory provisions of the Wills Act 2007, particularly section 14, which allows the High Court to declare a will valid if it expresses the deceased's testamentary intentions, despite non-compliance with the usual formalities. The court considered the evidence presented, including the testimony of the legal executive who drafted the will, and concluded that the draft will accurately reflected Mr Owston-Doyle's intentions. The court also noted the requirement under the High Court Rules for an affidavit from the executors to be filed for probate, which was satisfied in this case. The court granted the application for validation and probate, highlighting the need for adherence to procedural rules in future cases. The final orders of the court included the validation of the unsigned will and the grant of probate in solemn form to the named executors.

Orders