White v White

[2014] NZHC 865

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-571 [2014] NZHC 865

IN THE MATTER OF

An application for probate in solemn form

pursuant to Rule 27.6 of the High Court
Rules

BETWEEN

GREGORY JAMES WHITE and STEPHEN THOMAS WOODFIELD Plaintiffs

AND

GREGORY JAMES WHITE and JOHN EDWARD STEPHENS

Defendants

Hearing:	On the papers
Counsel:	L C A Farmer
Judgment:	30 April 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.15 pm on the 30th day of April 2014.

Solicitors:           Meredith Connell, Auckland, for plaintiffs

WHITE v WHITE [2014] NZHC 865 [30 April 2014]

[1]      This  is  an  application  for  probate  in  solemn  form  of  a  will  dated

21 December 2007  of  the  deceased  Gwendoline  Marjorie  Harvey,  who  died  on

9 October 2013. The plaintiffs are the executors named in that will.

[2]      The application has been made in solemn form, because the executors have very properly raised the question of the status of a later document, a draft will prepared on the deceased’s instructions in August 2013, shortly before her death. The plaintiffs are concerned that if that document was capable of being declared valid as a will under s 14 of the Wills Act 2007 (the Act), the 2007 will would be revoked by that document and no longer operative.

[3]      Directions as to service were sought, and an order was made directing service on the persons considered necessary.  All those persons have been served.  None has taken any steps.  I am accordingly able to deal with the application for probate on the papers.

[4]      The will dated 21 September 2007 is in proper form and, provided it has not been revoked by a later will, probate of it can be granted.  The sole issue which I must address is the status of the later draft will.

[5]      The circumstances are set out fully in the affidavit of Ms Blatchford, a legal executive at Meredith Connell, the deceased’s solicitors.   Mrs Harvey was a long standing  client  of  Meredith  Connell  who  had  made  many  wills  with  the  firm, between 1946 and 2007.  Ms Blatchford became involved with Mrs Harvey’s affairs in 2005 and acted for Mrs Harvey in the preparation of the 2007 will.

[6]      In August 2013, as a result of a telephone call from Mrs Harvey’s accountant, Ms Blatchford contacted Mrs Harvey about an issue she had.  Ms Blatchford offered to visit Mrs Harvey to discuss an issue Mrs Harvey had raised with her accountant. Mrs Harvey told Ms Blatchford that she would also like to discuss her will, and enduring powers of attorney which she also had earlier granted.   Ms Blatchford visited Mrs Harvey on 20 August 2013.  At that meeting Mrs Harvey handed her a marked-up copy of the 2007 will with changes that she wanted to be made. That was similar to the process which Mrs Harvey had adopted when Ms Blatchford drafted

the 2007 will, in that she had used a copy of the existing will to mark-up desired changes.    Ms Blatchford  discussed  the  proposed  changes.    It  was  agreed  that Ms Blatchford would draft a new will, and Mrs Harvey would provide some further information for that purpose.

[7]      Ms Blatchford was understandably and properly concerned to ensure that the matter was promptly attended to. She had not, by 26 August, received the further information Mrs Harvey had said she would give her.   To progress matters  she prepared a draft will in accordance with the changes marked-up on the copy of the

2007 will.   She sent that to Mrs Harvey by mail on 28 August.   Ms Blatchford telephoned the following day and Mrs Harvey confirmed she had received the draft, and  said  she  had  not  compiled  the  information  which  she  was  to  provide. Ms Blatchford telephoned again on 3 September.   In the course of that telephone conversation Mrs Harvey advised her that she was still thinking about the will, that she wanted to make some changes to the amounts of the legacies which she had not finally determined, and also wished to make some other changes.   Ms Blatchford wrote again on 13 September, asking Mrs Harvey to advise her of the changes so that she could finalise the will.   Ms Blatchford did not hear from Mrs Harvey again before she died on 9 October.  After her death a copy of Ms Blatchford’s draft will was located with her papers.

[8]      Under s 14 of the Act, the Court may make an order declaring a document valid as a will, if it is satisfied that the document expresses the deceased person’s testamentary intentions.  There are many cases in which unsigned draft wills have been  declared  valid  under  s 14.    In  all  of  those  cases,  the  deceased  person’s testamentary intentions have been clear.

[9]     I am satisfied that the 2013 draft will does not express the deceased’s testamentary intentions.  The evidence establishes that Mrs Harvey wished to make changes to her will.  However, it demonstrates quite clearly that she had not finalised her intentions as to what those changes should be.

[10]     For these reasons, the 2013 draft will is not a will which is capable of being declared valid under s 14 of the Act and the 2007 will remains in full force and effect.

[11]     The fact that Mrs Harvey had decided that changes to her 2007 will were desirable does not affect the status of that will.  Unless and until she gave effect to her wish to change the terms of the 2007 will, by entering into a new will which had the effect of revoking the 2007 will, or otherwise taking steps to revoke the 2007 will, that will remains in full force and effect.

[12]     There will be an order granting probate of the will of the deceased dated

21 December 2007  to  Stephen  Thomas  Woodfield  of  Auckland,  solicitor,  and

Gregory James White of Auckland, retired.

“A D MacKenzie J”