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[2]    Although Stefan executed a will in 1999, that will was revoked by Stefan’s subsequent marriage to Ms Jakki Harriman, the mother of two of his children, Ophelia Heather Harriman and Mackenzie George Harriman.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 cost effective and fair a manner as possible, thus avoiding the expense of litigation in what is a small estate. It seems that Stefan’s mother, Heather, is prepared to share the estate with his three children, but of course, a final agreement can only be resolved once probate is obtained.

Should the document be validated under s 14 of the Act?

[8]Section 14 of the Act provides as follows:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will; and

(b)does not comply with section 11; and

(c)came into existence in or out of New Zealand.

(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

(3)The court may consider—

(a)the document; and

(b)evidence on the signing and witnessing of the document; and

(c)evidence on the deceased person’s testamentary intentions; and

1      Administration Act 1969, s 77 column 2.

(d)evidence of statements made by the deceased person.

[9]    In summary, there are three key requirements before a document can be validated as a will. First, that the document does not comply with s 11 of the Act. Second, that it appears to be a will, and third, that the Court is satisfied that the document expresses the deceased’s testamentary intentions.

[10]   The first requirement is met as  the document has not been witnessed by    two witnesses. The second requirement, which is that the document appears to be a will, is concerned with what is conveyed by the content of the document rather than its form. That turns on whether the document has the effect of disposing of the person’s property when he or she dies.2 In this case, I accept that given the straightforward nature of the document and the particular wording used by Stefan in drafting it, including expressly describing it as his will, it readily meets this requirement. It also clearly records how Stefan wished to have his property disposed of after his death.

[11]   In respect of the third requirement, which is that the document expresses the deceased’s testamentary intentions, I note that the document is consistent with a separate handwritten note which was attached to Mr Ruth’s affidavit in which Stefan summarised his property as comprising a KiwiSaver account and another superannuation fund and wrote the instruction “[p]lease give everything to Mum”. I also note that his will is a natural evolution from his earlier valid will which shared his property equally with his mother and his then partner. For these reasons, I am satisfied the document expresses Stefan’s testamentary intentions.

[12]   It is a concern that Stefan has made no provision for his children. However, that in and of itself, cannot be a reason for declining to validate a document that otherwise meets the criteria in s 14 of the Act. In any event, I note Mr Jackson says “any residual or lingering doubts that the Court may have as to Stefan’s treatment of his children will be resolved by the family noting the financial imperative of avoiding family protection litigation”. I agree that there is an obvious case for a claim under the Family Protection Act 1955. In these circumstances, but given the limited size of

2      Caird v Caird [2018] NZHC 1605 at [31]–[32].

the estate, all parties will benefit from reaching agreement out of Court as Mr Ruth proposes.

[13]   For these reasons, and noting the consent of all affected parties, I make the order sought at para 1(a) of the application validating the document as the deceased’s last will. I also order that the costs of the application are to be met from the estate.

Solicitors:

Layburn Hodgins, Christchurch

Copy To:
D Jackson, Barrister, Christchurch