Wheeler - [2021] NZHC 3437

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002361

[2021] NZHC 3437

IN THE MATTER of s 14 of the Wills Act 2007

AND

IN THE MATTER

of an application by NANCY JANE WHEELER

Hearing: (on the papers)

Judgment:

14 December 2021

JUDGMENT OF VENNING J

This judgment was delivered by me on 14 December 2021 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Holmden Horrocks, Auckland

Re WHEELER [2021] NZHC 3437 [14 December 2021]

[1]The applicant, Nancy Jane Wheeler, applies for orders:

(a)that the proceeding be dealt with on a without notice basis;

(b)declaring a document dated 5 December 2020 (the December 2020 document) to be a valid codicil to the probated will of Judith Ann Souster, deceased; and

(c)declaring the validated December 2020 document be read as replacing clause 4A of the said probated will.

[2] The deceased Judith Ann Souster died at Auckland on or about 8 February 2021 leaving a will and three codicils. Probate was granted to Nancy Jane Wheeler, the executrix named in the second codicil that changed the will as the administrator of the deceased’s estate.

[3] Clause 4 of the deceased’s will dealt with legacies and specific bequests. The deceased amended those specific bequests from time to time in the codicils.

[4] On 5 December 2020 at the deceased’s request a longstanding friend, Ms Mary-Anne Hickmer of Tauranga recorded in writing an updated amendment to the bequests, the December 2020 document. Ms Hickmer has confirmed that the deceased signed the document in her presence, but as Ms Hickmer had no legal training she did not discuss witnessing the deceased’s signature. Ms Hickmer confirmed the deceased was able to explain to Ms Hickmer the change in her wishes, which led to the amendments to the bequests. Ms Hickmer retained the December 2020 document for safekeeping until after she had passed away following which she gave it to Ms Wheeler who was appointed as the deceased’s executor.

[5] The application is brought under Part 19 of the High Court Rules 2016.1 The applicant relies on s 14 of the Wills Act 2007.

1 High Court Rules 2016, r 19.2(xa).

[6] Section 14 of the Wills Act sets out three requirements to be met before the Court can consider the exercise of its discretionary power to validate a testamentary document. The requirements are that the document:

(a)appears to be a will; and

(b)does not comply with s 11 of the Act; and

(c)came into existence in or out of New Zealand.

[7] Although s 14(1)(a) of the Wills Act refers to “a will” in this context that description encompasses a codicil.2 In this case the December 2020 document is a one page document, which on its face indicates its intended purpose by commencing with “I … am bequeathing” and then listing the items that the deceased intended to bequeath. The first requirement is satisfied.

[8] As…

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 Wheeler

Details

AGLC: Wheeler [2021] NZHC 3437
Case: [2021] NZHC 3437
Decision Date: 14 December 2021

CaseChat Overview and Summary

Nancy Jane Wheeler, the applicant, sought to validate a document dated 5 December 2020, which she believed to be a codicil to the will of the deceased, Judith Ann Souster. The primary aim of the application was to declare the December 2020 document as a valid codicil and to have it replace clause 4A of the probated will. Judith Ann Souster passed away on or around 8 February 2021, leaving a will with three codicils. Nancy Jane Wheeler, named as the executrix in the second codicil, was granted probate and was appointed as the administrator of the deceased’s estate. The dispute centered on whether the December 2020 document was a valid codicil to the will. The court was required to determine if the document met the statutory requirements set out in the Wills Act 2007 for a document to be considered a codicil.

The court found that the December 2020 document met the first requirement of appearing to be a will or codicil, as it listed specific bequests and was signed by the deceased. The second requirement, that the document did not comply with the statutory requirements, was satisfied as the document was not witnessed, failing to meet the requirements of section 11 of the Wills Act. The third requirement, that the document came into existence in or out of New Zealand, was also met based on the evidence provided. The court concluded that the December 2020 document expressed the deceased’s testamentary intentions and identified specific changes in the bequests compared to the previous codicil.

The court made the following orders: the proceeding would be dealt with on a without notice basis; the document dated 5 December 2020 would be declared a valid codicil to the probated will; the validated December 2020 document would be read as a new clause 4B, inserted between clause 4A and clause 5 of the will; and clause 4A of the will would be revoked.

Orders