Wheeler (deceased)

[2014] NZHC 3118

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-11490 [2014] NZHC 3118

IN THE MATTER OF	the Wills Act 2007
AND
IN THE MATTER OF	an application by JOHN HAVEN WHEELER for an order that the will of JANE GRAHAM WHEELER be declared valid

Hearing:	On the papers
Judgment:	10 December 2014

JUDGMENT OF CLIFFORD J

[1]      I have before me:

(a)      an interlocutory application by John Haven Wheeler (Mr Wheeler) for leave to commence proceedings by way of originating application; and

(b)an originating application by Mr Wheeler without notice for an order under s 14 of the Wills Act 2007 to declare valid a will signed by his deceased wife Jane Graham Wheeler (Mrs Wheeler), notwithstanding the fact that it was not executed in the manner required by the Wills Act.

[2]      Mr Wheeler swears that:

(a)       Mrs Wheeler was his wife;

Re Wheeler (deceased) [2014] NZHC 3118 [10 December 2014]

(b)      she died on or about 28 June 2014;

(c)       she was survived by two adult children Benjamin Haven Wheeler

(Benjamin) and Melanie Jane Graham McColl (Melanie); and

(d)      there is no other person interested in her estate.

[3]      Benjamin  and  Melanie  both  consent,  in  writing,  to  the  application  for validating order.

[4]      I therefore first grant leave to Mr Wheeler to commence this proceeding by way of originating application and without notice.

[5]      I turn to the question of the validation of the will.

[6]      Affidavits in support of the application have been provided by Mr Wheeler himself, Melanie and a Susan Michelle Clifford. Taken together they establish:

(a)      In 2008 Melanie, a barrister and solicitor of this Court, prepared draft wills for her parents.  She prepared those wills in accordance with her parents’ instructions that they wished to provide for each other by way of a life interest in their home to provide some protection or certainty for each of her and her brother Benjamin if either of them remarried after the death of one of them.  On that basis, and as I understand it, wills were drafted to provide for mutual life interests, with gifts over to the surviving children and grandchildren.

(b)Melanie did not keep notes of her discussions with her parents, but believed the wills she prepared reflected their instructions.

(c)      She provided her parents with final copies of the wills so they could arrange to sign them.

(d)Mrs Wheeler subsequently signed her will on 27 April 2008, but it was only witnessed by one person.  That person was Susan Clifford.

Ms Clifford in fact witnessed the wills of both Mr Wheeler and Mrs

Wheeler.

[7]      When Mrs Wheeler died on 28 June this year the document which, quite clearly, she thought was her will was only witnessed by one person.  Accordingly it did not comply with s 11 of the Wills Act 2007.

[8]      Section 14 of the Wills Act 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.

(3)     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.

[9]      As MacKenzie J observed in Re Campbell (deceased), a decision of some importance in this area as it was delivered following full argument:1

[4]       Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills.  Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode  of  expression  did  not  comply  with  the  formalities  that  the  law required.  Section 14 has been very beneficial in avoiding that outcome.  Its utility is demonstrated by the fact that it has been invoked in over 80 cases since 2007.

[10]     In terms of s 14(1) of the Wills Act I must be satisfied that the document in respect of which this application was made appears to be a will, does not comply

1      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706.

with s 11 (it is witnessed correctly), came into existence in New Zealand and that it

expresses Mrs Wheeler’s testamentary intentions.

[11]     The first three of those four elements are clearly satisfied here, and require no further comment from me.

[12]     Given that Mrs Wheeler had signed the will, and on the basis of Melanie’s affidavit evidence, I am satisfied that that will expresses Mrs Wheeler’s testamentary intentions.

[13]     For these reasons, I make an order that the will is a valid will of Mrs Wheeler.

“Clifford J”

Solicitors:

ARL Lawyers, Lower Hutt.