Will of Henry - [2020] NZHC 1992

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…

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.

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Details

Case: [2020] NZHC 1992
Decision Date: 7 August 2020

CaseChat Overview and Summary

Stuart Graham Hamish McLeod, the de facto partner of Sonya Maree Henry, who passed away on 7 May 2020, filed an application under Section 14 of the Wills Act 2007 to have an unsigned and undated document declared as Henry's valid will. McLeod also sought leave to make the application without notice to any other parties. The document in question, dated 23 April 2020, was prepared by Carolyn Foss, a legal executive, at Henry's direction on 21 April 2020. Henry, who had terminal cancer, had previously executed a will on 21 May 2007, naming her parents as executors and beneficiaries. However, due to the COVID-19 pandemic, Henry could not have the new will signed and witnessed in person. Despite this, Henry communicated her intention that the unsigned document should serve as her valid will.

The court had to determine whether the unsigned and undated document could be declared a valid will under Section 14 of the Wills Act 2007. The Act requires a will to be signed and witnessed, but it also allows the High Court to declare a document a valid will if it appears to be a will and expresses the deceased's testamentary intentions. The court considered the affidavits of McLeod and Foss, as well as the signed statements of consent from Henry's parents. The court found that the document indeed had the appearance of a will and was made by Henry, disposing of her property as per her instructions. Although the document did not comply with the signing and witnessing requirements of Section 11 of the Act, the court was satisfied that the document expressed Henry's testamentary intentions.

The court granted McLeod's application, declaring the unsigned document dated 23 April 2020 to be a valid will of Sonya Maree Henry. The court was persuaded by the affidavits and consents indicating that the document reflected Henry's intentions and that the application could be made without notice to other parties. This decision underscores the flexibility of the Wills Act 2007 in exceptional circumstances, allowing for the recognition of a will that, while not formally executed, clearly expresses the deceased's final wishes.

Orders