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[4] The will dated 21 September 2007 is in proper form and, provided it has not been revoked by a later will, probate of it can be granted.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…

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 White v White

Details

AGLC: White v White [2014] NZHC 865
Case: [2014] NZHC 865
Decision Date: 30 April 2014

CaseChat Overview and Summary

The High Court of New Zealand, Wellington registry, was tasked with determining the validity of a 2007 will of Gwendoline Marjorie Harvey, who passed away in October 2013. The plaintiffs, executors named in the will, sought a grant of probate in solemn form, raising concerns about the potential revocation of the will by a later draft will prepared in August 2013. The court was required to decide whether the draft will could be declared valid under section 14 of the Wills Act 2007, and if so, whether it revoked the 2007 will.

The court considered the circumstances surrounding the preparation of the 2013 draft will, including the deceased's instructions and her solicitor's actions. The deceased had provided marked-up changes to her 2007 will but had not finalised her intentions regarding those changes. The court found that the draft will did not express the deceased's testamentary intentions, as she had not completed her thought process on the changes she wished to make. Consequently, the court concluded that the 2013 draft will was not a valid will and could not revoke the 2007 will.

Based on the court's reasoning, the 2007 will remained in full force and effect. The court granted an order for the probate of the will dated 21 December 2007 to the named executors, Stephen Thomas Woodfield and Gregory James White. The 2013 draft will was deemed not to be a valid will, and thus, the 2007 will continued to govern the distribution of Gwendoline Marjorie Harvey's estate.

Orders