Wheeler v Somerfield
[2015] NZHC 1269
•8 June 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-1110 [2015] NZHC 1269
UNDER The Wills Act 2007, ss 11 and 14 and the
High Court Rules, Part 19
IN THE MATTER
of the application for an order that the intended Codicil of Susan Gaye Piggott dated 24 November 2014 be declared valid
BETWEEN
COLLEEN WHEELER Applicant
AND
SUSAN SOMERFIELD Respondent
Hearing: 4 June 2015 Appearances:
K Stirling for Applicant
Judgment:
8 June 2015
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
8 June 2015 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Keil & Associates, Auckland
WHEELER v SOMERFIELD [2015] NZHC 1269 [8 June 2015]
[1] The applicant, Colleen Wheeler, seeks to have an intended codicil validated by way of s 14 of the Wills Act 2007. On the evidence available to me it appears that the only person to be affected by the intended codicil, Susan Somerfield, consents to the validation order. Problematically, the intended codicil contains errors of fact, revealing that the deceased will-maker may not have correctly understood the factual basis of the intended codicil. This raises an unusual issue as to whether or not the s 14 process can be used to validate an intended will in circumstances where the will-maker was under a misapprehension as to the terms and effect of the will and the intended codicil.
Background
[2] By will dated 22 August 2013, Susan Gaye Piggott:
(a) Appointed Colleen Wheeler (friend) as executrix of her estate. (b) Gave $50,000 to her mother Judith Wilson.
(c) Gave $10,000 to Colleen Wheeler.
(d) Gave her car to Susan Somerfield (a friend).
(e) Gave $10,000 to four of her nieces and nephews.
(f) Gave the residuary of her estate after funeral costs to Susan
Somerfield.
[3] By a further document entitled “codicil to will for Susan Gaye Piggott” dated
24 November 2014, a number of amendments to the will are recorded, including the following:
This codicil does not remove any of the original beneficiaries from my will, but makes a change to the amount my mother is to receive, to enable me to make two small bequeaths to two additional beneficiaries, as well as make
financial provision to look after my cat Lucy until she can be re-homed in the event of my death.
[4] The codicil also records that Ms Piggott has discussed the details and the beneficiaries of the will with her mother and that her mother was happy with her decision in this respect. It further records that Ms Piggott wishes to reduce the amount of money she has bequeathed to her mother, not for any negative reason, but to enable her to make the additional relatively small bequeaths and to make some provision for the care of her cat.
[5] After referring to her mother’s financial position there is then the following note in the codicil:
I had made provision in my will for a payment of $100,000 to my mother. I
wish to reduce it as part of this codicil to $50,000.
[6] There is then reference to Ms Susan Somerfield, and she is described as a very close friend. There is then reference to two additional beneficiaries, namely Colleen Wheeler and Janet Makinson. They are also described as close friends.
[7] The codicil then records:
For all the reasons I have outlined above and many more that I have not, I wish to make Colleen Wheeler and Janet Makinson beneficiaries of my estate and leave each of them $10,000.
I would like $1,000 to be provided to the Humane Society to look after my cat Lucy or any other organisation or person Colleen Wheeler the executor of my will considers appropriate as I trust her judgment implicitly on this.
I have not discussed the fact that I have made a codicil to my will making them beneficiaries of my estate, with either Colleen Wheeler or Janet Makinson.
Given that all the other beneficiaries of my will, have known about our friendship and know and like each of them personally, I hope and do not anticipate that any of them will object to the contents of this codicil to my will.
[8] The codicil was not properly witnessed for the purposes of s 11 of the Wills
Act 2007 and a validation order is required.
[9] In order to give effect to the codicil, there will need to be an adjustment of the amount left in the residuary estate, affecting Susan Somerfield, who under the will, as it exists the residue of the estate.
[10] Ms Somerfield has sworn an affidavit noting that she is aware of the intended codicil and the additional bequests of $10,000 to Janet Makinson and $1,000 to an organisation to look after the deceased’s cat, Lucy. She records that she is also aware of the effect of the intended codicil of the deceased as to reduce the residual available to be left to her in the deceased’s estate by the amount bequeathed to Janet Makinson and for the care of the cat Lucy, totalling $11,000. Her consent is then recorded.
Assessment
[11] Section 14 of the Wills Act 2007 provides for validation of a will, including a codicil to a will as follows:
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
I 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
I evidence on the deceased person’s testamentary intentions;
and
(d) evidence of statements made by the deceased person.
[12] As I stated in Re Estate of T G Feron,1 drawing on various authorities:
1 Re Estate of T G Feron [2012] NZHC 44, [2012] 2 NZLR 551.
(a) A robust approach to the application of s 14 is called for (referring Re
Estate of Murray);2
(b)The ostensible purpose of s 14 is to validate documents that plainly express the wishes of a deceased person; and
(c) Provided that the intentions of the will-maker are clear, s 14 can be curative of any technical non-compliance.
[13] In this case the codicil is defective insofar as there was only one witness present, who did not make a statement.3 It is quite plain, however, that the intended will-maker desired to leave a sum to her friends. However, it also appears that she envisaged that that sum would be off-set by a reduction in the mother’s entitlement by $11,000. That assumption was premised on an understanding that the mother was to receive $100,000 under the will, when in fact she was to receive only $50,000.
[14] This presents a curious problem, because I am not satisfied that the intended will-maker had in mind a reduction of the residual estate for the purposes of the variations. While the s 14 regime can be approached robustly, I do not think that it can be used to validate a codicil which does not plainly reflect the intentions of the will-maker. However, I am prepared to accept that the primary intention, namely to vest a sum in a close friend, is manifest from the intended codicil and that given the consent of the only affected beneficiary the mistaken assumption ought not to be a bar to s 14 relief.
[15] I am fortified in this view by the helpful submission filed by Mr Stirling who reminded me that the objective is to give effect to the intentions of the testator gleaned from an objective appraisal of the testamentary documents as a whole.4
While the will-maker may have been under a misapprehension as to the terms of her will, she certainly intended to modify the will to include the proposed distributions
to her close friends.
2 Re Estate of Murray HC Masterton CIV 2011-435-000178, 20 December 2011.
3 Wills Act 2007, ss 11(4) and (5).
4 Citing Re Jensen [1992] 2 NZLR 506 (HC).
[16] Accordingly, there shall be an order validating the intended codicil.