Wislang

[2018] NZHC 344

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-669

[2018] NZHC 344

IN THE MATTER

of Section 14 of the Wills Act 2000

AND

IN THE MATTER

of the estate of GRAEME WILLIAM WISLANG, Wellington

Deceased

Hearing:

On the papers

Counsel:

J Badenhorst for Applicants

G F Kelly for Wellington SPCA, Interested Party

Judgment:

7 March 2017

JUDGMENT OF CLARK J

Introduction

[1] Graeme William Wislang died on 2 November 2015. Arrin Wislang and Simon Wislang, the applicants, are the deceased’s children. They ask the Court to make an order under the s 14 of the Wills Act 2007 declaring that an unsigned and unwitnessed document is the valid will of Graeme Wislang (Mr Wislang).

Jurisdiction

[2]                  Where a document appears to be a will but does not comply with formal requirements of the Wills Act, the Court may make an order declaring the document

RE WISLANG (DECEASED) [2018] NZHC 344 [7 MARCH 2018]

to be a valid will if satisfied the document expresses the testamentary intentions of the deceased.1

[3]                  In determining whether to make an order the Court may consider the document, any evidence as to the signing and witnessing of the document, evidence as to deceased’s testamentary intentions and evidence of statements made by the deceased person relevant to her or his testamentary intentions.2

Decision

[4]                  Mr Wislang’s valid will is dated 24 February 2014. Under the February 2014 will the Public Trust was appointed executor and trustee. The following distributions were to be made:

(a)$5,000 to Miles Wislang;

(b)$40,000 to Arrin Wislang;

(c)$40,000 to Simon Wislang;

(d)$2,000 to Kathy Rhodes;

(e)$10,000 to St John’s; and

(f)the residue to Wellington SPCA.

[5]                  Then, on 14 November 2014, Mr Wislang emailed the Public Trust attaching an updated will that was not signed or witnessed. The November 2014 document made the following alterations to the February 2014 will:

(a)Nil to Miles Wislang;

(b)$100,000 to Arrin Wislang;

1 Wills Act 2007, s 14.

2 Section 14(3).

(c)$100,000 to Simon Wislang;

(d)$3,000 to Kathy Rhodes;

(e)$10,000 to St John’s;

(f)$10,000 to the Wellington Free Ambulance; and

(g)the residue to the Wellington SPCA.

[6]                  One of the requirements for a valid will is that it be signed and witnessed in accordance with s 11(3) and (4) of the Wills Act.3 Being neither signed nor witnessed the November 2014 document does not comply with the requirements for a valid will.

[7]                  Mr Wislang had been recently discharged from hospital when he emailed the Public Trust on 14 November 2014. His mobility and health continued to deteriorate. He was admitted and discharged on two further occasions before he passed away on 2 November 2015.

[8]                  I have reviewed the evidence and correspondence between Mr Wislang and the Public Trust. Mr Wislang’s 14 November 2014 email stated he was having trouble getting his will witnessed due to his ill health. That email was met with an “out of office” reply. When Mr Wislang emailed the Public Trust again on 20 December 2014, attaching his 14 November email and revised will, he received no response. When Mr Wislang followed up once more on 1 August 2015 his Public Trust contact replied to advise he had left the Public Trust two months earlier. A forwarding contact was provided to Mr Wislang. Mr Wislang emailed the forwarding contact on 2 August 2015 confirming the 2014 will was the latest version of his will. He received no response. It is unfortunate, to say the least, that despite Mr Wislang’s attempts to formalise his will his communications with the Public Trust were ineffective.

[9]                  I am satisfied the November 2014 document appears to be a will and expresses Mr Wislang’s testamentary intentions. It is headed “Will Made by Graeme William

3      Wills Act, s 11(2).

Wislang” and makes dispositions of property and money upon his death. The document expresses Mr Wislang’s testamentary intentions including his reasons for the various bequests. Directions for his cremation and disposal of his ashes are included as are detailed arrangements for the care of his dog, Pepsie.

[10]              The five parties affected by the application, and the Public Trust, have consented to validation of the November document will and to this application being determined on the papers.

[11]I am satisfied an order pursuant to s 14 of the Wills Act is appropriate.

Result

[12]              The November 2014 document, a copy of which is annexed as Exhibit A to the supplementary affidavit of Arrin Wislang sworn 7 September 2017, is declared to be the valid will of Graeme William Wislang.

Karen Clark J

Solicitors:

Rainey Collins, Wellington Greg Kelly Law Ltd, Wellington