Will of Kanellis - [2024] NZHC 295

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-65

[2024] NZHC 295

IN THE MATTER OF
Section 14 of the Wills Act 2007 and

an application by MICHELLE LYNN KANELLIS, for an order that a document be declared a valid will of the deceased GEORGE KANELLIS

Hearing: On the papers

Appearances:

S L French for Applicant

Judgment:

23 February 2024

JUDGMENT OF CHURCHMAN J

[1] By application dated 1 February 2024, Michelle Lynn Kanellis (the applicant) applies without notice for an order declaring a document to be a valid Will in accordance with s 14 of the Wills Act 2007 (the Act).

Facts

[2] George Kanellis (the deceased), the husband of the applicant, died in New Zealand on 1 July 2023.

[3] Prior to his death the deceased had sent the applicant a document with the subject line “Taking Responsibility”. That document gives some insight into the

WILL OF KANELLIS [2024] NZHC 295 [23 February 2024]

deceased’s state of mind, including as to what he understood his testamentary arrangements were.

[4] There are two relevant documents. The first a document headed “George Kanellis last Will and testament” dated 24 April 2007 (the 2007 document). That document was signed by the deceased and witnessed by one person. Although the name of that person was not detailed in the document, the applicant confirms that it was her.

[5] The deceased also signed a document headed “Will and testament” dated 30 June 2023 (the 2023 document). Although signed by the deceased, it was not witnessed. That is the document that the applicant applies to be declared a valid Will.

Grounds

[6] The grounds upon which the applicant relies in contending that the 2023 document is a valid Will are that the document:

(a)is a document in writing,

(b)appears to be a Will,

(c)is signed by the will-maker, but does not comply with s 11 of the Act because it is not witnessed, and

(d)the document came into existence in Wellington, New Zealand.

[7] The applicant submits that the 2023 document is clearly “a document” in terms of s 14 of the Act.

Analysis

[8] The 2023 document appears to be a Will and, although brief, meets the requirements of s 8(1) of the Act, in that it was a document made by a natural person who disposed of the property of that person when he died and was therefore a document to which s 14 applies. The document appoints an executor, disposes of the

deceased’s property and is dated the day before his death. The document is similar to that involved in the case of Re MacNeil.1

[9] As in the case of Re MacNeil, the surrounding circumstances suggest that the document was intended by the deceased as an expression of his wishes to be given effect to following his death.

[10] The applicant has identified the signature on the document as being that of her husband. The requirements of ss 11(1)…

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: [2024] NZHC 295
Decision Date: 23 February 2024

CaseChat Overview and Summary

Michelle Lynn Kanellis applied to the High Court of New Zealand for a declaration that a document dated 30 June 2023 was a valid will of her deceased husband, George Kanellis. The applicant argued that although the document was not witnessed as required by section 11 of the Wills Act 2007, it should be recognised as a valid will based on the circumstances surrounding its creation and the consistency of its contents with the deceased’s previous testamentary intentions. The court had to determine whether the document met the statutory requirements for a valid will and whether the applicant had provided sufficient evidence to justify dispensing with the witnessing requirement.

The court examined the contents of the 2023 document and its consistency with a previous will dated 24 April 2007 and an email sent by the deceased to the applicant shortly before his death. The court noted that the document appeared to be consistent with the earlier will in terms of the appointment of the applicant as the executor and the distribution of the deceased's property. The court also considered the deceased's mental capacity at the time of creating the document, finding that there was no evidence to suggest that he lacked the capacity to make a will. The court concluded that the 2023 document was intended to express the deceased’s testamentary intentions and that it should be recognised as a valid will despite the lack of witnessing.

The court found that the applicant had established that the 2023 document was a valid will and granted the application. The court declared that the 2023 document was the deceased's valid will and approved the draft order filed with the application. The court also confirmed that the application was properly filed without notice and that no other persons had an interest in the estate.

Orders