Winterburn v Wilson - [2016] NZHC 1422

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000767 [2016] NZHC 1422

BETWEEN
JEROME RANGI WINTERBURN AND

NGAIRE PEARL ARCUS Plaintiffs

AND

DAVID JAMES WILSON Defendant

Hearing: 25 May 2016

Appearances:

J M Stringer for Plaintiffs
D R Weatherley for Defendant

Judgment:

28 June 2016

JUDGMENT OF GENDALL J

Introduction

[1] The plaintiffs, Mr Winterburn and Ms Arcus, are respectively the son and sister of the late Dawn Una Richards (“the deceased”) who died on 22 August 2014. Shortly before her death, the deceased provided her solicitor with instructions for a new will. Unfortunately, those instructions were not able to be transformed into the form of a properly executed will before the deceased died.

[2] This proceeding involves an application by the plaintiffs for a declaration under s 14 of the Wills Act 2007 (the Act) that documents before the Court (being handwritten notes and a signed will instruction sheet) constitute a valid will of the deceased. The plaintiffs were nominated by the deceased to be her trustees in these
notes and will instructions.

WINTERBURN v WILSON [2016] NZHC 1422 [28 June 2016]

[3] The defendant, who was the de facto partner of the deceased and the sole beneficiary under a previous will of the deceased signed on 3 October 2003 (the
2003 will), opposes the present application.

Background

[4] On 12 August 2014, the deceased made an appointment with her solicitor, Mr Peter Tatham of Saunders & Co, solicitors, Christchurch, with regard to making a new will. In the meeting, the deceased brought along her copy of the existing will and some notes about what she wanted to put in her new will. The notes (the deceased’s notes) provided:

Ngaire Peal Arcus (Dawn’s Sister) Trustee Jerome Rangi Winterburn (Son) Trustee Properties- Home plus one rental
Life insurance Fisher Kiwi Saver Joint Savings
Vehicle, Motor-home, boat

Persona’ Jewelry (sic) – Jerome Rangi Winterburn & Rayomnd

Joel Winterburn to have full control of personal jewelry (sic), clothing and items

Maori land to be passed on to Jerome & Rayomd Winterburn

At the time of death I am to be cremated and my ashes are to be taken back to my hometown of Otaki by my sons, where my ashes will be scattered to the four winds from my sister Patricia’s grave site in Anzac rd, Otaki. A plaque is to be made and placed on my sisters (sic) grave with my full name, birth and death, my sons and grandsons names and a message that my boys would like to leave for me. Graham Orchards of Kapiti Funeral Directors is to oversee all funeral arrangements with my sons.

My funeral expenses are to come out of my estate

[5] While the deceased’s notes were quite specific about her assets and the gifts she wanted to make, they were not specific about how she wanted the rest of her estate distributed. Mr Tatham questioned her about that and the deceased told him she wanted to think about what she wanted to…

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 Winterburn v Wilson

Details

AGLC: Winterburn v Wilson [2016] NZHC 1422
Case: [2016] NZHC 1422
Decision Date: 28 June 2016

CaseChat Overview and Summary

Jerome Winterburn and Ngaire Arcus, the son and sister of the deceased, Dawn Una Richards, applied for a declaration that certain documents constituted a valid will under s 14 of the Wills Act 2007. The defendant, David James Wilson, the deceased’s de facto partner and sole beneficiary under her previous will, opposed the application. The plaintiffs argued that three documents constituted the deceased’s valid will. The deceased had made handwritten notes, attended a meeting with her solicitor and completed a will instruction sheet. The defendant opposed the application on the basis that the three documents did not satisfy the requirements of s 14 of the Wills Act. The Court considered whether the documents appeared to be a will, whether they did not comply with s 11 of the Act, and whether they came into existence in or out of New Zealand. The Court was satisfied that the documents did appear to be a will, did not comply with s 11 of the Act, and came into existence in New Zealand. The Court also considered whether the documents expressed the deceased’s testamentary intentions. The Court was satisfied that the documents expressed the deceased’s testamentary intentions and made an order validating the documents as the deceased’s will.

Orders