Estate of Harvey [2019] NZHC 1202 (29 May 2019)

Last Updated: 4 June 2019

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2019-425-50 [2019] NZHC 1202

IN THE MATTER	of Section 14 of the Wills Act 2007
AND
IN THE MATTER	of an application by JOANNE SHEREE NUTSFORD and ROBERT MICHAEL NUTSFORD for an order that a document be declared a valid will of the deceased RONALD IVAN HARVEY

Hearing:	On the papers
Counsel:	S Gilmete for Applicants
Judgment:	29 May 2019

JUDGMENT OF COOKE J

[1] The applicants are the executors of the estate of the late Ronald Harvey who died on 20 November 2018. Ms Nutsford is one of Mr Harvey’s children, and Mr Nutsford is her husband.

[2] The application is for orders under s 14 of the Wills Act 2007 that handwritten notes, and a typed file note, made by Mr Harvey’s solicitor recording intended changes to Mr Harvey’s will dated 15 June 2010 are to be treated as valid codicils. The applicants also seek orders that the application be dealt with without being served or notified to any other person. The application is supported by:

(a) memoranda from counsel;

RE ESTATE OF HARVEY [2019] NZHC 1202 [29 May 2019]

(b) two affidavits from Philip Bruce McDonald explaining the circumstances in which he made the record of Mr Harvey’s intentions;

(c) affidavits of Elizabeth Yvonne Quail and Wendy Diane Nelson and Brendon John Harvey, three of Mr Harvey’s children, effectively confirming their father intended to change his will; and

(d) consents to the application from all of the children/relevant beneficiaries — Rowena Yana Malcolm, Brendon John Harvey, Joanne Sheree Nutsford, Wayne Elder Harvey, Wendy Diane Nelson, Elizabeth Yvonne Quail and Maureen Isabelle Matilda Harvey.

[3] I am satisfied it is appropriate that the matter proceed without further notice or service in accordance with r 7.23 of the High Court Rules 2016, particularly given that the relevant beneficiaries have all consented to the application.

Relevant circumstances

[4] Mr Harvey is not survived by a spouse or de facto partner. He is survived by seven children. He made a will on 15 June 2010 leaving his estate in equal shares to his seven children.

[5] On 25 September 2018 he phoned Mr Philip McDonald, of the solicitor’s firm who had attended on the preparation of the will. Mr McDonald bought up a copy of the will on his computer screen for the purposes of the telephone discussion. Mr McDonald made a handwritten note of this discussion, and he also dictated a file note that day which was typed up the following day. Mr McDonald’s file note records that Mr Harvey had recently turned 94, although in good health both physically and mentally.

[6] In effect Mr Harvey wanted to change the bequests so that there was a specific bequest of $6,000 to his great granddaughter, Diane Manson. He then wished to change how the estate would be divided so that five of his seven children would receive more than the other two. This was to be achieved by dividing the residue into 12 parts, with five of the children (Elizabeth, Wendy, Wayne, Joanne and Brendan)
receiving two shares of that residue, and the other two children (Rowena and Maureen) receiving one share each. Mr McDonald said that he would record the proposed changes in a will which he would forward to Mr Harvey for perusal and signing. He promised to send a copy of the existing will with an explanation as to how the documents were to be signed and witnessed. He also promised to send Mr Harvey a self-addressed envelope so that it could be sent back. This is all clearly recorded in Mr McDonald’s file note. The handwritten note is not so detailed or clear.

[7] Mr McDonald explains that he put the handwritten note and file note on his desk, but that no file was set up, and no new will was prepared. On 21 November 2018 he was contacted to say that Mr Harvey had died.

Relevant provisions

[8] Section 14 of the Wills Act 2007 provides as follow:

14 High Court may declare will valid

(1) This section applies to a document that—

(a) appears to be a will; and

(b) does not comply with section 11; and

(c) came into existence in or out of New Zealand.

(2) The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

(3) The court may consider—

(a) the document; and

(b) evidence on the signing and witnessing of the document; and

(c) evidence on the deceased person’s testamentary intentions; and

(d) evidence of statements made by the deceased person.

[9] The relevant document here is a file note of the deceased solicitor recording how the deceased intended to change his formerly executed will. The document plainly does not comply with the requirements of s 11. Even though it is not a document authored by the deceased himself, it may nevertheless meet the
requirements of s 14. I respectively agree with the analysis undertaken by Whata J in

Re Estate of Feron where he said:¹

[11] In Re Estate of Murray² MacKenzie J helpfully essays a number of authorities dealing with section 14. Those authorities illustrate that a robust approach to the application of section 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person. Section 14(2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not from. Furthermore, in reaching a conclusion I am also afforded a broad power to consider evidence on the deceased’s testamentary intentions and of statements made by the deceased person.

[12] This robust approach has also been applied in various Australian authorities dealing with difficult fact situations, but where the clear testamentary intentions of the deceased are deemed to outweigh any defects in form.³ By contrast, where the Courts have not been satisfied of testamentary intentions, the Courts have refused to accept the notes or draft will.⁴

[10] In that case the Court was dealing with instructions that had been given to a solicitor that had not been converted into a new will. The solicitor subsequently recorded what the deceased had outlined in the earlier discussions. Whata J declined to exercise the power in s 14 for that document because “there must at least be a document purporting to be a will under the hand or direction of the deceased prior to death”.⁵ In that case the proposed document prepared by the solicitor post-dated the death of the deceased.

[11] In Re Taigel the solicitor had made a file note of instructions for a will at the time of the discussion.⁶ Dobson J held:

[26] Section 14(3) authorises a wider enquiry than the analysis of the form and content of the document. Paragraphs (c) and (d) of subs (3) enable the Court to consider evidence of the deceased person’s testamentary intentions

¹ Re Estate of Feron [2012] NZGC 44[2012] NZHC 44; , [2012] 2 NZLR 551.

² Re Estate of Murray [2912] 2 NZLR 546 (HC).

3. Estate of Blakely (1983) 32 SASR 473 (SC); Estate of TLB [2005] SASC 459, (2005) 94 SASR 450; Re the Will of Lobato (1991) 6 WAR 1 (SC); and Ryan v Kazacos [2001] NSWSC 140, (2001) 159 FLR 452.
4. Baumanis v Praulin (1980) 25 SASR 423 (SC); Estate of Schwartzkopff [2006] SASC 131, [2006] 94 SASR 465; and Re Application of Brown (1991) 23 NSWLR 535 (SC). See also Nicola Peart “Where there is a will, there is a way – a new Wills Act for New Zealand” [2007] WkoLawRw 4; (2007) 15 Waikato Law Review 26.

⁵ Re Estate of Feron, above n 1, at [13].

⁶ Re Taigel [2014] NZHC 844.

and statements made by the deceased person. Those necessarily contemplate sources extraneous to the document itself. Here, there is relatively strong evidence that Mr Taigel intended the instructions given to Mr Montague to represent his testamentary wishes, and that he intended to leave his estate (or at least the proceeds of the insurance policy which comprised by far the largest asset in the estate) to his adult children, subject to their attaining 25.

...

[28] The question therefore is whether the extraneous evidence justifies the adoption of a liberal approach to whether Mr Montague’s file note can be treated as a document made by Mr Taigel, and further whether it can be treated as having the appearance of a will. I consider that in the particular circumstances of this case, those other considerations do outweigh the apparent deficiencies of the file note to qualify as a will. There is little point in emphasising how exceptional the remainder of the circumstances have to be before something as removed from a will as the solicitor’s file note here is can qualify for validation. Such occasions ought indeed to be rare, but the combination of circumstances here reflect the statutory purpose of validating an otherwise inadequate record, however unusual they are.

[12] A similar situation was addressed by Paul Davison J in Re Estate of Brett Parker where he concluded:⁷

[32] In this case, I consider that the affidavit of Mr Logan provides clear and reliable evidence that the contents of the file note he made represents Mr Parker’s testamentary intentions. Although the notes require the reader to fill in some gaps by interpreting Mr Logan’s use of “shorthand” in places, the file note can nonetheless be understood even without reference to Mr Logan’s explanation.

[33] However, I do not consider that s 14 empowers or enables the Court to insert clauses into the document which, although intended to be included in a will by Mr Logan, were not referred to in the written document. While the power conferred by s 14 is broad and enables the Court to adopt a robust approach to giving effect to testamentary intentions as expressed in a document, the remedial power is limited to the application of the terms of the document, and cannot extend to giving effect to undocumented intentions. In this case, it appears that while it was Mr Logan’s intention to include a provision by which Mr Parker would forgive the debt owed to him by the Family Trust, that topic was not the subject of direct discussion, and it was certainly not mentioned or referred to in the file note.

[13] In the present case I am satisfied that Mr McDonald’s detailed file note adequately captures Mr Harvey’s intentions, and how he wished to change his will. There is no need to fill in any gaps in the file note. Moreover the other affidavit evidence from three of the children evidences the fact that Mr Harvey intended to change his will. I also note that those who are adversely affected by the change

⁷ Re Estate of Brett Parker [2017] NZHC 415.

consent to the application. It seems to me, therefore, that there is no controversy that the document properly expresses Mr Harvey’s testamentary intentions.

[14] I accordingly grant the application with one exception. The exception is that the handwritten file note should be subject to the s 14 order. Rather the typed file note (Exhibit C to Mr McDonald’s affidavit of 17 May 2019) is declared to be a valid codicil to the will of 15 June 2010. The effect is that the will of 15 June 2010 takes effect for issues such as the appointment of the executors, but it is subject to the variations recorded in the typed file note.

Cooke J

Solicitors:

Ward Adams Bryan Lamb, Invercargill