Will of Wilson - [2023] NZHC 276

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-427

[2023] NZHC 276

UNDER the Wills Act 2007

IN THE MATTER

of the Will of Stefan Andrew Wilson

BETWEEN

DAVID CHRISTOPHER RUTH

Applicant

Hearing: On the papers

Appearances:

D M Jackson for Applicant

Judgment:

23 February 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 23 February 2023 at 10.15 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE Wilson [2023] NZHC 276 [23 February 2023]

[1] The applicant, David Christopher Ruth, seeks a declaration pursuant to s 14 of the Wills Act 2007 (the Act) declaring a document to be the valid last will of his deceased nephew, Stefan Andrew Wilson (Stefan). Stefan died on 7 February 2022.

[2] Although Stefan executed a will in 1999, that will was revoked by Stefan’s subsequent marriage to Ms Jakki Harriman, the mother of two of his children, Ophelia Heather Harriman and Mackenzie George Harriman. He did not execute a subsequent valid will.

[3] Stefan’s immediate family comprises his mother, Heather Elizabeth Wilson, his three children, being Ophelia and Mackenzie mentioned above, and Kyla Elizabeth Margaret Evans, and his estranged wife, Kate Wilson.

[4] On 6 October 2022 orders were made directing service on the above family members. All those family members have signed notices which have been filed confirming their consent to the order sought by the applicant.

The document

[5] The document which is sought to be validated as Stefan’s will is a handwritten note dated 2 November 2019 which is in Stefan’s handwriting, is signed by him and is described by him as his will. The document reads as follows:

This is the last will of Stefan Andrew Wilson of 204 Richmond Road, Grey Lynn, Auckland.

I appoint my uncle David Ruth to be my executor and trustee.

I request that any suitable parts of my body be used for transplant purposes.

If a post-mortem requires the consent of my family, I request that they refuse consent.

I direct that my body be cremated. I would like my ashes to be placed as close as possible to Nan’s plot.

I give the trustee the whole of my estate to hold in trust and direct my trustee to pay my funeral and graveyard expenses.

I direct my trustee to give the residue to my mother Heather Elizabeth Wilson for her own use and benefit absolutely.

Signed by Stefan Andrew Wilson the will maker [Signature]

Stefan’s estate

[6] Under the will, Stefan’s mother Heather takes the entire estate as Stefan’s sole beneficiary. By comparison, in an intestacy, Stefan’s estranged wife would receive one-third of the residue of the estate and the other two-thirds would be held on statutory trusts for the three children.1

[7]The estate is estimated by Layburn Hodgins, solicitors, to be less than

$100,000. Mr Ruth states that it is his intention to resolve any and all claims on the estate in as…

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.

Continue reading Will of Wilson

Details

AGLC: Will of Wilson [2023] NZHC 276
Case: [2023] NZHC 276
Decision Date: 23 February 2023

CaseChat Overview and Summary

David Christopher Ruth, the applicant, sought a declaration under section 14 of the Wills Act 2007 that a particular document be recognised as the valid last will of his deceased nephew, Stefan Andrew Wilson. Stefan passed away on 7 February 2022, and although he had executed a will in 1999, that will was revoked by his subsequent marriage to Ms Jakki Harriman, the mother of two of his children. Stefan did not execute a subsequent valid will. The document in question is a handwritten note dated 2 November 2019, which Stefan described as his will. The document appoints David Ruth as executor and trustee, directs the use of his body for transplant purposes, requests refusal of consent for a post-mortem, and specifies cremation and the placement of his ashes. Stefan’s estate is estimated to be less than $100,000.

The legal issues in this case centred around whether the document could be validated as Stefan's will under section 14 of the Wills Act 2007. Section 14 allows the High Court to declare a document as a valid will if it appears to be a will, does not comply with the statutory requirements of section 11, and expresses the deceased person’s testamentary intentions. The key requirements for validation were whether the document did not comply with section 11, whether it appeared to be a will, and whether it expressed Stefan's testamentary intentions. The court examined the document's content, evidence regarding its signing and witnessing, and statements made by Stefan. The document was found to meet all the criteria for validation, including the testamentary intentions expressed in the document, which aligned with Stefan’s earlier will and a separate handwritten note.

The court concluded that the document met the criteria for validation under section 14 of the Act. Although Stefan had not made any provision for his children, the court noted that this did not preclude validation if the other criteria were met. The court acknowledged the potential for a claim under the Family Protection Act 1955 but observed that given the small size of the estate, reaching an agreement out of court would be beneficial. The court validated the document as Stefan's last will and ordered that the costs of the application be met from the estate.

The court made an order validating the document as Stefan Andrew Wilson’s last will and directed that the costs of the application be met from the estate.

Orders