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 to the second requirement, the document is in writing and signed by the deceased but it is not witnessed and as such fails to comply with the requirements of s 11. The second requirement of s 14 is satisfied.

[9]The third requirement is satisfied as Ms Hickmer’s affidavit confirms.

[10]             The background evidence discloses that the deceased was aware of her chattels and jewellery and from time to time made decisions regarding specific bequests in relation to those items. The December 2020 document is in similar form to the previous bequests. It has a degree of formality, albeit in handwritten form. It identifies the deceased by name, it uses the word “bequeath” and then sets out a list of specific bequests which are in large part consistent with her earlier bequests. Where it departs there are reasons for that, as noted below. It has then been signed twice by the deceased. Ms Hickmer’s evidence as to the circumstances in which it came into existence also support the conclusion that it is to be regarded as a testamentary document and reflected the deceased’s testamentary intentions.

2      Wills Act 2007, s 8(3)(e).

[11]             For the above reasons the Court is satisfied the December 2020 document sought to be validated expresses the deceased’s testamentary intentions in relation to the items of personal property referred to in it.

[12]             Ms Wheeler has carried out a comparison of the specific bequests in the December 2020 document with the pre-existing bequests. Her evidence is that the only changes between the previous codicil relating to bequests and the December 2020 document are:

(a)A solitaire ring with baguettes was given to Lara Souster (the deceased’s granddaughter) in the third codicil but is not mentioned in the December 2020 . That appears to be the ring that belonged to Ross, her son. The ring has been returned to Ross and was not in the deceased’s ownership which explains why she did not attempt to dispose of it in the December 2020 document.

(b)A three diamond ring had been given to Deane Trethewey (the deceased’s grandson) in the third codicil but in the December 2020 document it is bequeathed to Jacqueline Kean.

(c)A linked gold necklace had been given to the deceased’s son Ross in the third codicil but it is not mentioned in the December 2020 document and falls into the residue of the estate which is to be shared equally by Ross and Deane.

(d)The pearl ring was given to Nancy Wheeler in the third codicil but is not mentioned in the December 2020 document because the deceased had already given it to Nancy Wheeler while she was still alive, after the third codicil and before she made the December 2020 document.

(e)Finally, the man’s watch had been given to Ross in the third codicil but in the December 2020 document was given to Wayne Millar, a close family friend.

[13]             Importantly, counsel for the parties affected, Mr Sills, has signed a consent confirming that Charles Ross Souster, Deane Harlen Trethewey and Lara Natalie Souster consent to dispensation with service on them of the intended proceedings to validate the December 2020 document as a codicil to the probated will.

[14]             Thus, all beneficiaries potentially affected by the orders sought have had legal advice about the matter and have chosen not to be served with the application. In the circumstances the Court is satisfied that the orders sought are appropriate.

[15]Accordingly the following orders are made:

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

(b)declaring the document dated 5 December 2020, the copy of which is annexed marked C to the affidavit of Nancy Jane Wheeler, sworn 5 August 2021 to be a valid codicil to the probated will of Judith Anne Souster, deceased;

(c)declaring the validated December 2020 document be read as if it were a new clause 4B inserted between clause 4A (as inserted by the third codicil) and clause 5 of the said probated will; and

(d)declaring clause 4A of the said probated will to be revoked on the making of the above orders (b) and (c).

Venning J