Will of Walsh

[2019] NZHC 2521

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-000067

[2019] NZHC 2521

UNDER

Sections 14 and 15 of the Wills Act 2007

IN THE MATTER

of an application for an order declaring the document as a valid Will

BETWEEN

MATTHEW SHANE WALSH AND WAYNE KIERON WALSH

Applicants

Hearing:	On the papers
Appearances:	M C Ryan for Applicants
Judgment:	4 October 2019

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 4 October 2019 at 11.00 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 4 October 2019

The applications

[1]                   The applicants, being two of the three living sons of the late Sharon Walsh (the deceased), apply to this Court for the following orders:

WILL OF THE LATE SHARON WALSH [2019] NZHC 2521 [4 October 2019]

(a)An order declaring a document dated 22 March 2010, being a will of the late Sharon Walsh (the deceased) dated 21 September 2004 with handwritten amendments, initialled by the deceased and witnessed by William George Ashton, to be a valid will.

(b)An order granting letters of administration appointing the applicants as the administrators of the estate of the deceased.

The background to the applications

[2]                   As is explained in the affidavit of Matthew Shane Walsh dated 27 June 2019, the  deceased  died  on  9  March  2018,  leaving  three  living  sons:  himself,  Wayne Kieron Walsh and Nathan John Walsh. The deceased had been married to Lloyd Walsh but separated from him before Matthew Walsh was born. She did not remarry. However, at the time of her death, the deceased lived with her friend, Norman George Ashton, at her home at 6 Peter Street, Dunedin. Mr Walsh’s understanding is that they were companions and not in a relationship and Mr Ashton had lived at her house since around 2002.

[3]                   The estate is modest, comprising the property at 6 Peter Street, Dunedin, her vehicle and some chattels and personal items.

[4]                   The deceased’s last will was witnessed and signed on 21 September 2004. It provided that Derek Gee of Dunedin, her brother and James Paul Takas of Dunedin, her solicitor, would be the executors of her will (the 2004 will). That will provided a life interest in the house at 6 Peter Street, Dunedin to her friend Mr Ashton and for her residuary estate to be divided equally between Matthew and his brother Wayne. No provision in that will was made for their brother Nathan, and the 2004 will set out the reasons for that saying he had “failed in his duties as a son and … has already received sufficient consideration and gifts … whether by borrowings he has not repaid or by property he has already received …”.

[5]                   However, on her death, a copy of the 2004 will was found with handwritten amendments made to it. It was dated 22 March 2010 and the handwritten amendments were signed by both the deceased and by Mr Ashton (the 2010 document). The amendment it made was as follows:

Nathan can have a share out of the house. Wayne is to control money and assets for Nathan.

[6]                   Mr Walsh deposes that this document represents his mother’s last testamentary intentions on the basis that:

(a)the handwriting is confirmed to be that of the deceased; and

(b)the changes have been signed by her and Mr Ashton has confirmed by affidavit that he was present and also signed the document when she made the change to her 2004 will.

All the brothers have provided their consent to this document being declared a valid will of the deceased.

[7]                   On 22 August 2019, when making directions for service, Lester AJ pointed out that it was not clear whether the applicants were treating Nathan as intended to have an equal share and asked for confirmation whether agreement had been reached between Matthew, Wayne and Nathan as to the meaning of the handwritten addition made by the deceased. On 27 August 2019, confirmation came by way of memorandum that the applicants consider the meaning of the handwritten amendment is that Nathan is entitled to an equal share of the estate.

[8]                   In accordance with the directions made by Lester AJ on 22 August 2019, the originating  application  and  related  documents  were  served  on  Mr  Ashton  on   6 September 2019. He has not filed a notice of opposition to the application, and I note he was clearly aware of it, having filed an affidavit on the circumstances in which the 2010 document was created.

[9]                   The second part of the application is an  application  by  Matthew  and  Wayne Walsh for letters of administration appointing them as administrators of the deceased’s estate. They provide evidence that both Mr James Takas and their uncle, Derek Gee, have renounced their appointments as executors of the will.

[10]               The applicants explain that they seek these orders in the context of the same application as a matter of expediency, given the modest size of the estate and the fact there are no realisable assets at present. Indeed, they are having to personally pay the legal fees associated with the application.

Validation of the 2010 document under the Wills Act

[11]               The 2010 document does not comply with the requirements of s 11 of the Wills Act 2007 because the will-maker’s  signature  has  not  been  witnessed  by  two witnesses as required by s 11(4). However, I am satisfied that it meets the requirements of s 14 of the Wills Act because it:

(a)appears to be a will (s 14(1)(a)); and

(b)expresses the deceased’s persons testamentary intentions (s 14(2)).

[12]               I am also satisfied based on the affidavit of Derek Gee dated 5 August 2019 and the letter  from  Jim  Takas,  annexed  as  exhibit  B  to  the  affidavit  of Matthew Shane Walsh, confirming that he renounces his appointment as executor of the will, make it expedient to appoint administrators of the deceased’s estate. The applicants are willing to be appointed and all parties either consent to the application, or do not oppose it.

Orders made

[13]Accordingly, I make the following orders:

(a)I declare that the document dated 22 March 2010, being a will of the late Sharon Walsh (the deceased) dated 21 September 2004 with

handwritten amendments, initialled by the deceased and witnessed by Norman George Ashton, is a valid will.

(b)I grant  letters  of  administration  appointing  the  applicants, Matthew Shane Walsh and Wayne Kieron Walsh, as the administrators of the estate of the deceased.

Solicitors:

Solomons, Dunedin