Will of Henry
[2020] NZHC 1992
•7 August 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV 2020-409-000345
[2020] NZHC 1992
UNDER Section 14 of the Wills Act 2007 IN THE MATTER OF
an application by STUART GRAHAM HAMISH MCLEOD of Christchurch for an order that a document be declared a valid Will of the deceased SONYA MAREE HENRY of Christchurch
Plaintiff
Hearing: On the papers Appearances:
F Bradley for the Applicant
Judgment:
7 August 2020
Reissued:
2 September 2020
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 05 August 2020 at 12noon and Re-delivered by me on 2 September 2020 in accordance with Rule 11.10 of the High Court Rules 2016.
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Malley & Co, Christchurch
Validity of Will of SONYA MAREE HENRY [2020] NZHC 1992 [7 August 2020]
Introduction
[1] The applicant, Stuart Graham Hamish McLeod, seeks an order pursuant to s 14 of the Wills Act 2007 that an unsigned and undated document be declared a valid will of the deceased, Sonya Maree Henry.
[2] Mr McLeod also seeks leave for the application to be made without notice to any other person.
Relevant background
[3]Ms Henry died in Christchurch on 7 May 2020.
[4] On 21 May 2007, Ms Henry executed a will appointing her parents, Brian George Anthony Henry and Pamela Margaret Henry, executors and trustees of her will and sole beneficiaries of her estate.
[5]In an affidavit affirmed on 22 July 2020, Mr McLeod says:
(a)He was Ms Henry’s de facto partner since August 2016;
(b)Ms Henry had terminal cancer;
(c)On 21 April 2020, Ms Henry instructed Carolyn Foss, a legal executive, by telephone and email to prepare a new will;
(d)Ms Foss emailed Ms Henry the new will with the advice that they could not meet to have the will properly signed and witnessed because New Zealand was at Alert Level 4 of the COVID-19 pandemic; and
(e)Ms Henry expressed to him that she was happy with the new will and on 24 April 2020 emailed Ms Foss to confirm the same and to acknowledge her intention that the document purporting to be her last will to be a valid will.
[6]Mr McLeod attached to his affidavit:
(a)A copy of the document dated 23 April 2020 that had been prepared by Ms Foss;
(b)A copy of the will executed by Ms Henry on 21 May 2007; and
(c)Signed and witnessed statements of consent by Ms Henry’s parents to the document dated 23 April 2020 being declared to be a valid will of Ms Henry.
[7]In an affidavit affirmed on 23 July 2020, Ms Foss says:
(a)On 21 April 2020, Ms Henry, for whom Ms Foss had acted for approximately five years and whose voice she knew, instructed Ms Foss by telephone and email to prepare a new will;
(b)On 23 April 2020, Ms Foss prepared and emailed to Ms Henry a draft will in accordance with Ms Henry’s instructions;
(c)On 24 April 2020, Ms Foss emailed an updated version of the draft will incorporating amendments requested by Ms Henry by email;
(d)The date on the document should have been updated to 24 April 2020 because that was the correct date; and
(e)Ms Foss is confident the document she prepared and a copy of which she annexed to her affidavit, reflects Ms Henry’s instructions that Mr McLeod should be the executor and sole beneficiary of Ms Henry’s estate.
The Wills Act 2007
[8] Section 8(1) of the Wills Act 2007 sets out the meaning of a will. That meaning includes a document made by a natural person which disposes of property to which the person is entitled when he or she dies.
[9] Section 11 of the Wills Act sets out the requirements for a will to be valid. These include that the document was signed by the will-maker and witnessed in the manner required by that section.
[10] Section 14 provides that the High Court may declare to be valid a document that does not comply with s 11 if the document appears to be a will and was made in or out of New Zealand and the Court is satisfied the document expresses the deceased person’s testamentary intentions. Section 14(3) provides that for that purpose, the Court may consider the document, evidence on the signing and witnessing of the document, evidence on the deceased person’s testamentary intentions, and evidence of statements made by the deceased person. However, as stated by McKenzie J in Re Campbell (Deceased), the Court may take into account any evidence that may assist in determining the deceased person’s testamentary intentions.1
Discussion
[11] The document dated 23 April 2020 has the appearance of a will. I am satisfied from the affidavits of Mr McLeod and Ms Foss it is a document made by Ms Henry which disposes of property to which Ms Henry was entitled when she died.
[12] However, the document is not signed and it is not witnessed. In those respects, it does not comply with s 11 of the Wills Act.
[13]The document states, at paragraph 13:
I am signing my Will while the Epidemic Preparedness (COVID-19) Notice 2020 is in place and acknowledge that:
a. I intend this to be my last Will.
b. This Will reflects my testamentary intentions and sets out a division of my assets in accordance with my instructions.
c. I am not able to have the Will validly signed by me before two witnesses in person.
d. When I am able I will have my Will signed and witnessed correctly.
1 Re Campbell (Deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15].
[14] It is apparent that use was not made of the procedures for signing and witnessing a will while the Epidemic Preparedness (COVID-19) Notice 2020 was in effect, as provided for in the Epidemic Preparedness (Wills Act 2007 - Signing and Witnessing of Wills) Immediate Modification Order 2020.
[15] Nonetheless, I am satisfied from the affidavits of Mr McLeod and Ms Foss, and the consents signed by Ms Henry’s parents, that the document expresses Ms Henry’s testamentary intentions.
[16] I am also satisfied from the consents signed by Ms Henry’s parents that the application can properly be made without notice to any other person.
Order
[17]I make the following order:
I declare that the unsigned document dated 23 April 2020, a copy of which is exhibited to the affidavit of Stuart Graham Hamish McLeod affirmed on 22 July 2020 and filed in support of Mr McLeod’s application, is a valid will of Sonya Maree Henry who died in Christchurch on 7 May 2020.
G J van Bohemen J