Wilton

[2012] NZHC 1607

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2012-476-283 [2012] NZHC 1607

In the Estate of                 GRAEME ERNEST WILTON

Hearing:         On the papers Counsel:  B Hill Judgment:      9 July 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 10am on the 9th day of July 2012.

JUDGMENT OF MACKENZIE J

[1]      This is an interlocutory application without notice for validation of a will.

[2]      The deceased, who had lived in Temuka, died on 4 April 2012.  He had been diagnosed with leukaemia about four years ago and was undergoing treatment at Christchurch Hospital.  His brother and sister-in-law, Mr and Mrs Wilton, who live in Tauranga, had a close relationship with him.  They had urged on him the need to have a will.   On 22 March 2012, Ms Hill, a solicitor in the firm Bradley West in Geraldine, was asked by the deceased’s friend and employer to contact the deceased in connection with arrangements for a will.  She contacted him and he attended at her office on Friday, 23 March 2012 and she took instructions in relation to his will.

[3]      Ms Hill  asked  if  he  had  any  other  wills  in  place,  either  where  he  had previously lived in Masterton, or locally.  The deceased advised her that he did not. He advised that in 2010 he had given instructions to White Fox & Jones, solicitors in Ashburton, for a will.  A draft had been prepared, but that was never signed.  The

deceased advised that he wanted Ms Hill to act for him in preparing his will and that

RE WILTON (DECEASED) HC TIM CIV 2012-476-283 [9 July 2012]

he wanted to have it signed within the next fortnight as he was planning to go to Australia for treatment.   He gave instructions for his will and indicated that he wished to talk it through with Mr and Mrs Wilton, and asked Ms Hill to send a copy of the draft to them, as well as to himself.

[4]      Ms Hill drafted the will, based on those instructions, the same day and sent a copy to the deceased and to his brother.   Mr and Mrs Wilton then spoke to the deceased on Sunday, 25 March 2012 about the draft will.  They also discussed with him putting in place a living will.   They discussed one change to the draft which Ms Hill had prepared.  In the draft, there was a direction that the deceased’s body be cremated in Masterton and his ashes given to his nephew for disposal in accordance with directions that he had given.  In the telephone discussion, the deceased said he had since decided he wanted to keep costs down and have his body cremated in South Canterbury, and for his ashes to be taken to Masterton for a memorial service. He gave information to Mr and Mrs Wilton, which they were to convey to Ms Hill, to prepare the living will.  Mr and Mrs Wilton conveyed this information to Ms Hill by email and suggested she confirm the instructions with the deceased.  She did so by telephone.  She amended the draft will and also prepared draft enduring powers of attorney for property and personal care and welfare.   She made the change to the draft will in relation to the cremation clause.

[5]      Mr and Mrs Wilton phoned the deceased a number of times to make sure he went to see Ms Hill to sign his will.  The last time they spoke to him was on Friday,

30 March 2012 when he said he would go to see Ms Hill the following week to sign his will.   Ms Hill also telephoned, but got no answer and left a message for the deceased to call her to make an appointment before the Easter break.  She emailed Mr and Mrs Wilton on Wednesday, 4 April 2012, informing them of that.   Mr and Mrs Wilton tried to phone him on 4 April, but received no reply.

[6]      On  Thursday,  5 April  2012,  the  Police  advised  Mr and  Mrs Wilton  and Ms Hill that the deceased had been found dead in his home.  His death certificate records that the deceased died on 4 April 2012.   The cause of death is noted as “subject to coroner’s findings”.

[7]      The  application  is  for  validation  of  the  amended  draft  will  sent  to  the deceased by Ms Hill.

[8]      The first question for decision is whether the application for validation may properly be made on a without notice basis.   It is necessary, in considering that question, to ensure that all persons who may be affected by the making of an order have a proper opportunity to be represented.   As there is no previous will, the persons who would be affected by the making of the order are those who would benefit on an intestacy.

[9]      The  evidence  establishes  that  the  deceased  had  two  children,  a  son  and daughter.  He was not survived by a spouse or civil union partner, or by any de facto partner entitled to succeed on an intestacy.  He was not survived by any other child born to, or adopted by, him, or in respect of whom he had admitted paternity or in respect of whom he had been adjudged to be the father.  Enquiries have been made under the Status of Children Act 1969, with a negative result.

[10]     In those circumstances, the persons entitled to succeed, and to apply for administration, on an intestacy would be the two children of the deceased, under para 4 of s 77 of the Administration Act 1969.  The children will not take the whole of the estate under the will, so they will be adversely affected by the making of the order.  They have been advised that if the document is not declared to be the last will, they would be entitled to the whole of his estate.  Both of them have indicated their consent to the application for validation of the will, and to the application by the executors named therein for probate of the will.

[11]     The application therefore affects adversely only persons who have consented to  the  making  of  the  order.   An  important  consideration  is  that  the procedures adopted should enable applications such as this to be decided as promptly, inexpensively and as efficiently as possible, having regard to the remedial nature of the Wills Act 2007.  In those circumstances, I consider that the interests of justice require the application to be determined without notice, under r 7.46 of the High Court Rules.

[12]     As to the substantive application itself, the first requirement for the making of an order under s 14 is that the document appears to be a will.  The amended draft will prepared by Ms Hill meets that requirement, except for the fact that it is not signed.  The lack of signature means that the second condition of s 14 is met, namely that the document does not comply with the requirements of s 11.   The document came into existence in New Zealand.

[13]     In those circumstances, the Court may make an order declaring the document valid if it is satisfied that the document expresses the deceased’s testamentary intentions.  The evidence satisfies me that it does.  The instructions were given to Ms Hill  and  discussed  by the deceased  with  his  brother and  sister-in-law.   The deceased was clearly cognisant of the significance of the draft will, and a change to the draft originally prepared was made to ensure that his testamentary intentions were properly reflected in the draft.  That reinforces the conclusion that in all other respects, and with that amendment, the document did reflect the deceased’s testamentary intentions.  The evidence satisfies me that the reason the deceased did not sign the will was his sudden death before he had had an opportunity to attend his solicitor’s office to sign it.  There is no evidence to suggest that the fact that he did not sign might indicate a change to the very clear testamentary intentions which he had expressed a few days earlier.

[14]     There will be an order declaring valid, as the will of the deceased, the draft will attached to the affidavit of Bernadette Hill sworn on 29 May 2012, marked “F”.

Solicitors:           Bradley West, Geraldine

“A D MacKenzie J”