Sutcliffe v Shannon [2016] NZHC 1809 (5 August 2016)

Last Updated: 14 December 2016

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-129 [2016] NZHC 1809

UNDER	Secton 14 of the Wills Act 2007
IN THE MATTER	of the Estate of the late ELISE MARGARET RICHARDS, of Auckland, Widow
BETWEEN	TERENCE MICHAEL SUTCLIFFE AND BRADEN KAYNE MATSON, OF AUCKLAND, TRUSTEES AND EXECUTORS OF THE INTENDED WILL OF THE LATE ELISE MARGARET RICHARDS Plaintiffs
AND	PAUL JUSTIN SHANNON, OF HAMILTON, TRUSTEE AND EXECUTOR OF THE LAST WILL OF THE LATE ELISE MARGARET RICHARDS DATED 15 SEPTEMBER 2015 Defendant

Hearing:	On the papers
Counsel:	D Watson for the Plaintiffs
Judgment:	5 August 2016

_{JUDGMENT OF MUIR J}

This judgment was delivered by me on Friday 5 August 2016 at 3.00 pm

Pursuant to Rule 11.5 of the High court Rules.

Registrar/Deputy Registrar

Date:..............................

Counsel/Solicitors:

D Watson, Barrister, Auckland

SUTCLIFFE v SHANNON [2016] NZHC 1809 [5 August 2016]

Introduction

[1] The plaintiffs, who are the intended trustees and executors of a will prepared for, but unexecuted by, the late Elise Margaret Richards, seek orders validating that document pursuant to s 14 of the Wills Act 2007 (the Act).

[2] I am satisfied that such orders are appropriate.

Background

[3] Ms Richards died on 1 June 2014. Her last executed will was dated 15

September 1975. In that document she appointed Mr Larry O’Neill and Mr Paul Shannon, retired solicitor, as trustees and executors. Mr O’Neill has subsequently renounced all rights under that document.

[4] In terms of the 1975 will the deceased left the entire residue of her estate to her five children in equal shares.

[5] For many years prior to her death the deceased lived with her partner Walter

Herbert Cowl in a property owned by her in Herne Bay, Auckland.

[6] On 29 April 2014 the deceased attended the officers of Mr Douglas Sutcliffe, Solicitor, for the purposes of preparing a new will. She did so with Mr Cowl. Mr Sutcliffe has provided an affidavit annexing both his handwritten notes of that meeting and a subsequently prepared file note.

[7] He records that the deceased identified her assets as the Herne Bay property together with two investment flats and an investment home in Hamilton and various bank accounts. He says that she advised him her existing will was very old and she was concerned to make provision for Walter, her partner of many years.

[8] He says she expressed the desire to leave a life interest in her home to Walter with the residue of his estate to pass to her children in equal shares as per her previous will.

[9] The file note likewise records the deceased’s desire that her executors be Mr Sutcliffe and Mr Braden Matson as she had previously had solicitors as executors and understood them to be neutral in the event of any family dispute.

[10] Although neither the handwritten notes nor the file note record the fact, he also deposes that the deceased expressed her intention that her personal chattels pass to Mr Cowl absolutely.

[11] In accordance with those instructions, Mr Sutcliffe prepared a draft will which he forwarded to the deceased on 2 May 2014.

[12] Mr Cowl is now also deceased but prior to his death he met with his solicitors who confirmed to the executors and trustees under the intended will that, prior to her death, the deceased had read the draft and was satisfied that it accorded with her instructions.

[13] Regrettably, before arrangements were able to be made for Ms Richards to sign the new will, she died.

[14] The remaining trustee and executor under the 1975 will, the residuary beneficiaries under the 1975 will and the proposed new will (being the deceased’s children), and the administrator of the estate of Mr Cowl all consent to (or in the case of Mr Cowl’s administrator) do not oppose orders validating the draft will under s 14 of the Act.

Legal position

[15] In order to satisfy the requirements of s 14(1) of the Act it needs to be demonstrated that the document appears to be a will, that it does not comply with s 11 of the Act in that it is not signed or properly witnessed, that it came into existence in New Zealand and that it expresses the deceased’s testamentary intentions.

[16] In determining the application the Court may consider, pursuant to s 14(3), the document, any evidence of the signing or witnessing of the document, evidence

of the deceased’s person’s testamentary intentions and evidence of statements made by the deceased person.

[17] The principal aim of s 14 has been said to “enable better effect to the ascertainable intention of the will-makers”.¹ As McKenzie J observed Re Campbell (dec’d):²

[4] Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills. Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode of expression did not comply with the formalities that the law required. Section 14 has been very beneficial in avoiding that outcome. Its utility is demonstrated by the fact that it has been invoked in over 80 cases since 2007.

[18] In the same case his Honour observed that:³

The preponderance of successful applications does however indicate that the evidential burden on a s 14 applicant is not subject to a high threshold.

[19] In Re Wong Asher J noted:⁴

[24] The great benefit of the reform in s 14 is that it takes the eye of the Court away from form and makes it focus on substance and intention. A person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities. The Court should give effect to the intention of the person who purported to make a will. However, it must be clear on the balance of probabilities that the document is intended to express the deceased person’s testamentary intentions.

[20] The court must be satisfied on the basis of “cogent evidence”⁵ that the

intended will reflects the deceased’s testamentary intentions.

Analysis

_{[21] Each of the requirements of s 14 are in my view satisfied in the present case.}

¹ _{Nicola Peart, Where there is a will there is a way” [2007] WkoLawRw 4; (2007) 15 Waikato L Rev 26 at [27].}

² _{Re Campbell (dec’d) [2014] NZHC 1632; [2014] 3 NZLR 706.}

³ _{At [17].}

⁴ _{Re Wong [2014] NZHC 2554.}

⁵ Gladwin v Public Trust [2011] NZHC 1596; [2011] 3 NZLR 566 (HC), at [21].

[22] The document concerned had been prepared by solicitors, appoints trustees and executors, makes testamentary dispositions and, but for the absence of execution, would be a binding will. It came into existence in New Zealand and, having not been signed, does not meet the requirements of s 11.

[23] I am also satisfied that, having regard to the background deposed to by Mr Sutcliffe and the correspondence from Mr Cowl’s solicitors, it properly represents her testamentary intentions. That it does so is confirmed directly by Mr Sutcliffe in para 8 of his affidavit.

[24] I note that all interested parties consent (or do not oppose) orders under the

Act.

Result

[25] I make orders that:

(a) The unsigned document, annexed as exhibit DS3 to the affidavit of Mr Douglas John Sutcliffe dated 12 April 2016 be declared valid as the Last Will and Testament of Elise Margaret Richards, formerly of Hamilton but latterly of Auckland, widow (deceased).

(b) The costs of and incidental to these proceedings be met from the

_{Estate of the deceased.}

Muir J