Williams v Habershon

[2020] NZHC 420

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2019-476-000028

[2020] NZHC 420

IN THE ESTATE OF

ADRIENNE THERESE HABERSHON

BETWEEN

MERRILYN KAY WILLIAMS

Applicant

AND

GEOFFREY RAYMOND HABERSHON

Respondent

Counsel:	C A O’Connor for Applicant D R Forman for Respondent
Judgment:	6 March 2020
(Determined on the papers)

JUDGMENT OF OSBORNE J

[will validation]

An unexecuted will

[1]Adrienne Therese Habershon died (by suicide) on 13 June 2019.

[2]        On 6 June 2019, she had given instructions to her solicitor to prepare a new will for her in which she provided:

(a)her estranged husband, Geoffrey Raymond Habershon, was to be legal guardian of their two children (with a provision for other guardians in the event Geoffrey predeceased her);

(b)her estate was to be placed in trust for her two children until they reached the age of 25 years; and

WILLIAMS v HABERSHON [2020] NZHC 420 [6 March 2020]

(c)her identified executor was Merrilyn Williams.

[3]        Mrs Habershon’s solicitor promptly drew up such a will, providing it to Mrs Habershon by email on 7 June 2019. The only detail lacking was the address and occupation of the intended executor, Ms Williams.

[4]        There is no evidence that Mrs Habershon executed the drafted will before she died.

The application

[5]        Ms Williams applies for a declaration that the document is valid. The document does not comply with s 11 Wills Act 2007 because it was not signed and witnessed as required by s 11(2) of the Act.

[6]        Pursuant to the Court’s directions, the proceeding was served on Mr Habershon. Through his counsel he has accepted that the document may properly be declared as the valid will of Mrs Habershon as it accurately represents her testamentary intentions.

[7]        Mr Habershon was prepared to have the Court make an order by consent but the Court has required, in the circumstances, a determination albeit on the papers.

The evidence

[8]        Ms Williams has by affidavit provided evidence as to the background as already summarised. She knew Mrs Habershon. She refers to mental health and physical health difficulties which Mrs Habershon suffered after the breakdown of her marriage. She was aware that Mrs Habershon was consulting a solicitor, Anthony John Shaw, of Timpany Walton, Timaru with instructions to prepare a new will.

[9]        Mr Shaw has also provided evidence, producing both the email instructions to him from Mrs Habershon and his email response providing the draft will. He has also exhibited a letter he wrote to Mr Habershon on behalf of Mrs Habershon on 29 May 2019. The letter contained a proposal for the children to remain for the time being in Mr Habershon’s care and for relationship property to be divided equally. Mr Shaw deposed that when taking instructions in relation to the 29 May 2019 correspondence,

he discussed with Mrs Habershon the need to make a new will, given that Mr Habershon would otherwise inherit everything in accordance with her existing will. Mrs Habershon told him she would think about the matter and come back to him (which she did by her 6 June 2019 email instructions to prepare a new will).

[10]      Mr Shaw deposed that Mrs Habershon did not contact him again before she died seven days later.

The power of validation

[11]      By s 14 of the Act, this Court has power to declare a document to be a valid will. The section provides:

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

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

[12]      Circumstances in which the subject document is a draft will prepared by the deceased’s solicitor in accordance with their instructions have been before this Court on a number of occasions. In Re Hickford (dec'd), MacKenzie J stated in relation to one such will:1

[9]The fact that the deceased did not make an appointment to sign the will might be consistent with any one of three broad possibilities:

1      Re Hickford (dec'd) HC Napier CIV-2009-441-369, 13 August 2009 at [9].

(a)That he had changed his mind about making a will;

(b)That he overlooked or forgot about signing the will; or

(c)That he did not think that he needed to do anything further.

[13]      MacKenzie J in a subsequent case clarified that his Honour had not intended to suggest that those three possibilities would be the only possibilities which might arise on the facts of any particular case.2

[14]      In the meantime, in Gladwin v Public Trust, Woolford J identified as a further possibility, which on the facts might justify a declaration of validity, that a person (rather than overlooking or forgetting to sign a will) may intend to do so but never get around to it before their death.3 In Gladwin, the deceased before her death had been living under what a witness had described as “chaotic domestic arrangements”.4 Woolford J referred to other cases in which wills had been validated, including Re Estate of Brown.5 In that case, the Public Trust had provided the deceased with a draft will in accordance with his instructions but the deceased died before he could sign the document. Mr Brown (a 79 year old) died some days after he had received the draft will.

Discussion

[15]      Mrs Habershon’s draft will was prepared by her solicitor in accordance with precise and comprehensive instructions and in order to avoid having her assets pass to her now-estranged husband under her existing will.

[16]      The fact that Mrs Habershon had been suffering both physical and mental health difficulties, which were sufficiently acute to lead to her suicide shortly after she received the draft will, provides a probable explanation for her failure to have that will executed.

[17]      I am satisfied on the evidence that the will both at the time Mr Shaw drafted it and as at the date of Mrs Habershon’s death reflected her testamentary intentions.

2      Re Fraser HC Napier CIV-2011-441-700, 20 December 2011, at [8].

3      Gladwin v Public Trust [2011] 3 NZLR 566 (HC) at [20].

4      Gladwin v Public Trust, above n 3, at [22].

5      Re Estate of Brown, HC Auckland, CIV-2010-404-6328, 13 October 2001.

[18]This is an appropriate case in which to declare the document valid.

Order

[19]I order:

(a)The draft will document as emailed to Adrienne Therese Habershon on 7 June 2019 is valid as a will;

(b)There is no order as to the costs of this proceeding.

Osborne J

Solicitors:

Gresson Dorman & Co, Timaru RSM Law, Timaru

This judgment was delivered by me on 6 March 2020 at 4.00 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Date: