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) and 11(3) that the document be in writing and appear to be signed by the Will maker are therefore met. However, the document has not been properly witnessed.

[11]              On the basis of the information in the affidavit filed in support by the applicant, I am satisfied that the document was written in New Zealand.

[12]              I note that the 2023 document appears to be consistent with the 2007 document in that they both appoint the applicant as the executor, and both leave all the deceased’s property to the applicant and to the deceased’s children. The email sent to the applicant by the deceased shortly before his death also confirms that he believed that he had written a valid Will leaving everything to the applicant.

[13]              In Re Wilson,2 Dunningham J considered that an unwitnessed Will’s consistency with another note and a prior Will were evidence that the unwitnessed Will expressed the will-maker’s testamentary intention. I come to the same conclusion in this case.

Capacity

[14]               As the information in the applicant’s affidavit confirms that the deceased had on-going mental health issues, and raises the possibility that the deceased’s death was as a result of suicide, it is prudent to consider the issue of capacity. While there is some evidence that the deceased suffered from bipolar disorder, there is no evidence that would indicate that he lacked the capacity to make a Will. Indeed, the lengthy

1      Re MacNeil [2029] NZHC 1347.

2      Re Wilson [2023] NZHC 276.

email that the deceased sent to the applicant shortly before his death indicates that he was lucid and had carefully thought through his current situation.

[15]              In Re Estate of Snow,3 Eaton J concluded, on similar facts, that the fact that a deceased may have resolved to end his life at a time when he was suffering from depression did not suggest that he was otherwise mentally impaired. I have come to the same conclusion in this case. I also note that the dispositions in the document sought to be validated are consistent with those made in the earlier testamentary document and are also the sort of dispositions that can be described as rational and reasonable.

[16]              I am satisfied that the deceased had testamentary capacity at the time of making the document.

Prior document

[17]              The 2023 document does not expressly revoke the 2007 document. Section 16 of the Act sets out the means by which a valid Will can be revoked. None of these apply here. Because the 2007 document is not a valid Will, there is only one witness signature and no witness statements, there is no need for the 2023 document to revoke it.

[18]              Having regard to all these considerations I am satisfied it is appropriate to make the orders sought.

Procedure

[19]              The application has been submitted on a without notice basis. Documentation provided to the Court in support of the application confirms that the applicant was the deceased’s wife, and the deceased was the father of the three children whose details were listed in the affidavit. They are all minors. It is clear that the deceased had no other children. There are no other people who could potentially have an interest in the estate.

3      Re Estate of Snow [2022] NZHC 2581.

[20]              In Re Campbell,4 MacKenzie J confirmed that applications of this nature need to be decided as promptly, inexpensively and efficiency as possible. I am satisfied that in this case that means that the application should be determined without notice. All of the persons who might be affected by the making of the order sought were the same persons who would benefit on an intestacy if the document were not declared a valid Will.

[21]              Accordingly, this is an appropriate case for the application to proceed without notice.

Outcome

[22]The 2023 document is declared to be the deceased valid Will.

[23]              An order is made confirming that the application is properly filed on a without notice.

[24]The draft order filed with the application is approved.

Churchman J

Solicitors:

Convex Legal Limited, Wellington

4      Re Campbell [2014] NZHC 1632.