Young v Young

[2016] NZHC 1563

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1399 [2016] NZHC 1563

IN THE MATTER

of the Estate of SPENCER WILLIAM

WONG

BETWEEN

CONRAD LANCE YOUNG, STEPHEN JONATHAN RYKERS, SANDRA DUNKLEY, DEBORAH JANE MILLER AND WILLIAM AH CHEE AS EXECUTORS OF THE ESTATE OF SPENCER WILLIAM WONG

Applicants

AND

CONRAD LANCE YOUNG, STEPHEN JONATHAN RYKERS, SANDRA DUNKLEY AND DEBORAH JANE MILLER AS EXECUTORS OF THE ESTATE OF SPENCER WILLIAM WONG

Respondents

Hearing:	On the papers
Appearances:	P Moodley for Applicants
Judgment:	11 July 2016

JUDGMENT OF LANG J

[on originating application for probate in solemn form]

This judgment was delivered by me on 11 July 2016 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

YOUNG, v YOUNG [2016] NZHC 1563 [11 July 2016]

[1]      Mr  Spencer  William  Wong  died  at  Auckland  on  2  August  2015.    His executors applied for probate in common form in respect of a will dated 30 July

2015.1    Mr Wong had not signed that will.   Instead, he had made a mark on each

page.   This, coupled with the fact that the will had only been signed three days before Mr Wong died, suggested to the Registrar that there may be doubts as to Mr Wong’s testamentary capacity at the time he signed the will.  The Registrar therefore directed that  the executors  apply for probate of the will  in  solemn  form.   The executors filed this proceeding as a result.

[2]      Several affidavits have been filed in support of the present application.   In addition, the applicants seek leave to rely upon an affidavit filed by Deborah Jane Miller in the earlier proceeding in which the applicants sought probate of the will in common form.  Ms Miller was the solicitor who prepared the will and attended upon Mr Wong when he purported to sign it.

Background

[3]      At the time of his death Mr Wong was living in a rest home in Auckland.  He had been in a poor state of health for some considerable time, and had been admitted to Auckland Hospital on several occasions for treatment.

[4]      Ms Miller obtained Mr Wong’s initial instructions to prepare a new will on

29 June 2015.  She had acted for him for some time, and was familiar with his family situation.  Ms Miller visited Mr Wong again on 27 July and he provided her with a document setting out his testamentary wishes.  Ms Miller then went away to prepare a new will in accordance with this document.  When she did so, Ms Miller was left uncertain as to several aspects of her instructions.   In particular, she was not sure whether Mr Wong intended to nominate the Order of St John as his residual beneficiary.  For that reason she prepared four alternative versions of the new will, and then returned to visit him with these on 30 July 2015.   She had originally

planned to see him on 31 July, but received advice from a family member on the

1      Re Young (deceased) HC Wellington CIV 2015 485 611492

morning of 30 July that Mr Wong was very ill.   She therefore went to see him immediately.

[5]      By this stage Mr Wong was in a very frail state.  He was unable to speak and relied upon sign language to communicate.   Importantly, however, Ms Miller ascertained that Mr Wong had just advised a doctor that he did not wish to be readmitted to hospital again and did not wish to be kept alive artificially.  The doctor had recorded that Mr Wong had the mental capacity to make these decisions.  For that reason Ms Miller felt confident that he also had the requisite capacity to understand the provisions of his will.

[6]      Ms Miller first ascertained the version of the new will that Mr Wong wished to sign.  This did not provide for the Order of St John to be the residuary beneficiary. She  then  took  Mr Wong  through  the  provisions  of  the  new  will,  obtaining  his confirmation of the correctness of each of its provisions by means of sign language. A legal executive from Ms Miller’s firm was present throughout this process.

[7]      When it came to the point where Mr Wong was to sign the document, Ms Miller discovered that he was unable to write.  For that reason she asked Mr Wong to leave a mark on each page of the new will to signify that it represented his testamentary intent.  Ms Miller and the legal executive then signed each page of the document as witnesses to its execution.

[8]      Dr Carnachan, the doctor responsible for Mr Wong’s care at the rest home, has provided an affidavit confirming he believes Mr Wong was competent to make a will as at 30 July 2015.  Three members of Mr Wong’s family have also provided affidavits confirming that they dealt with Mr Wong in the days leading up to and after 30 July 2015, and found him to be lucid during that time notwithstanding his physical infirmity.  Mr Wong’s aunt and his sister-in law both depose that Mr Wong suffered a fall on the morning of 30 July, and say that he was given a sedative following this.  They believe this left him groggy and unable to sign his name in the usual way.

Decision

[9]      The evidence provided in support of the application satisfies me that Mr Wong had the necessary testamentary capacity to sign the will dated 30 July 2015.  I am also satisfied that he made the mark on each page because he was physically unable to sign it in the usual way.  In all other respects the requirements of s 11 of the Wills Act 2007 have been satisfied.

[10]     In  addition,  the  four  executors  named  in  the  will  have  provided  written consents to probate being granted in respect of the will.   The consents of all beneficiaries have also been obtained.

[11]     That being the case, I now make the following orders:

(a)       Leave is granted to commence this proceeding by way of originating application.

(b)      I dispense with service of the proceeding on any party.

(c)       The affidavit filed in support of the application for probate in common form under CIV-2015-485-611492 may be read in this proceeding.

(d)I make an order under r 27.6 of the High Court Rules granting probate in solemn form in respect of the will dated 30 July 2015.

Lang J

Solicitors:

Brookfields, Auckland