Estate of Schoeman [2019] NZHC 1417 (20 June 2019)

Last Updated: 28 June 2019

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-338 [2019] NZHC 1417

IN THE MATTER	of the Wills Act 2007
AND IN THE MATTER	OF THE ESTATE OF PETER DIRK SCHOEMAN

Hearing:	On the papers
Counsel:	B R J Botting for Applicant
Judgment:	20 June 2019

JUDGMENT OF COOKE J

[1] By application dated 7 June 2019 Julie Elizabeth Schoeman applies for orders:

(a) that her substantive application proceed without notice to any other person; and

(b) that a document annexed to the affidavits referred to below be treated as the valid will of the deceased.

[2] The application is supported by an affidavit from the applicant dated 8 April 2019, an affidavit from Elaine Marie Dench dated 8 April 2019, an affidavit from Peter Michael Webb dated 14 March 2019 and a memorandum from counsel.

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

ESTATE OF PETER DIRK SCHOEMAN [2019] NZHC 1417 [20 June 2019]

Relevant circumstances

[4] Mr Schoeman died on 9 December 2018. The applicant is his wife.

[5] On 20 March 2018 Mr Schoeman executed a document headed up “Last will and testament” which I accept he intended to be his will. He signed that document, and it was witnessed by Ms Dench. But the will is invalid as it was not witnessed in accordance with the requirement of s 11(4) of the Wills Act 2007. An equivalent document was also signed by the applicant at the same time intended to be her will.

[6] Some years ago, Mr Schoeman made a valid will in South Africa. The applicant and Mr Schoeman were married in South Africa in 1995, and immigrated to New Zealand in 2010. The applicant explains the first will was executed after the birth of their first son in about 2001, but that in 2012 or 2013 they discussed that as a consequence of the birth of their further twin sons it should no longer apply, and it was destroyed. The applicant explains that at the time they intended to make new wills but did not get around to it. I accept that the destruction of this will means it is revoked under ss 40(2)(m) and (n), and ss 16(e) or (f) of the Wills Act 2007.

[7] The applicant explains that on 13 March 2018 Mr Schoeman suffered a medical event. He had an MRI on 16 March 2018 which revealed potential shadows on his brain. They then discussed making new wills, and the document in question was executed on 19 March 2018. Both the applicant and the witness, Ms Dench describe the execution of the documents.

[8] Under the document to which the application relates Mr Schoeman left his entire estate to the applicant, and failing that bequest, he bequeathed it to their boys in equal shares. There was an equivalent document mirroring that intention in the applicant’s intended will.

[9] On 22 March 2018 Mr Schoeman was diagnosed with a malignant form of a brain tumour. He was readmitted to hospital on 12 April 2018. Ultimately he died in December 2018.
[10] The rules in relation to intestacy are described in the memorandum of counsel. Under those rules, and particularly s 77 of the Administration Act 1969, the applicant would be entitled to approximately one third of the estate, and the deceased’s three sons two thirds (subject to an initial amount under the Administration (Prescribed Amounts) Regulations 2009, and the Administration (Prescribed Rate of Interest) Order 2011). The eldest son is 18 and he has filed a consent to the application. The two twin boys are just over 16. They have also provided written consents, and in addition an affidavit from Peter Michael Webb, solicitor has been filed explaining that he was provided independent advice to the boys in accordance with the principles set out in Re Estate of Badraun and Re Estate of Sullivan.¹ He explains that he is confident that both the boys fully understand and comprehend the advice and explanation, and they had both consented to the application.

The law

[11] Section 14 of the Wills Act 2007 provides as follows:

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.

¹ Re Estate of Badraun [2014] NZHC 560 and Re Estate of Sullivan [2013] NZHC 2997.

[12] That section has been applied in a number of cases. In Re Estate of Feron
Whata J held:²

[11] In Re Estate of Murray³ 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.⁴ By contrast, where the Courts have not been satisfied of testamentary intentions, the Courts have refused to accept the notes or draft will.⁵

[13] A similar approach has been applied in other cases in New Zealand.⁶

[14] Taking into account the considerations in s 14 and the affidavit evidence I am satisfied that the document should be treated as the deceased’s will under s 14, and I duly make the order sought.

Cooke J

Solicitors:

Botting Legal Limited, Auckland

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

³ Re Estate of Murray [2912] 2 NZLR 546 (HC).

4. 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.

⁵ Baumanis v Praulin (1980) 25 SASR 423 (SC); Estate of Schwartzkopff [2006] SASC 131, [2006]

[2006] SASC 131; 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.

6. Re Taigel [2014] NZHC 884 at [26]–[28]; Re Estate of Brett Parker [2017] NZHC 415 at [32]– [33]; Re Estate of Donald Harvey [2019] NZHC 1202 at [9]–[13].