Estate of Zhu (dec'd) HC New Plymouth CIV 2010-443-21 [2010] NZHC 718 (17 May 2010)

Last Updated: 3 June 2010

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

_{CIV-2010-443-21}

IN THE MATTER OF the Wills Act 2007 and the Administration

Act 1969

ESTATE OF XIZHONG ZHU (ALSO KNOWN AS MARK ZHU) (DECEASED)

Hearing: On the papers Appearances: F R Mori for Applicant Judgment: 17 May 2010 at 4.30pm

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 4.30pm on the 17th day of May 2010.

_{JUDGMENT OF MACKENZIE J}

[1] This is a “without notice” application for an order under s 14 of the Wills Act

2007 declaring a document a valid will.

[2] No specific procedure is prescribed for the making of applications under s 14, or under the other new provisions in the Act enabling remedial orders in respect of wills which are formally defective. I have expressed some views on the appropriate procedures in Re Hickford[1] and Re MacNeil.[2] I now elaborate a little on those views.

[3] In determining the procedure appropriate for a particular case, the overriding concern, in my view, must be to adopt a procedure which will ensure that all persons who may be potentially affected by the granting of relief are given proper notice of

_{the proceedings, and a proper opportunity to be heard. A further important principle}

ZHU (DECEASED) HC NWP CIV-2010-443-21 17 May 2010

to be taken into account is that the new powers conferred by the Act to validate and correct wills are clearly intended by Parliament to be remedial. The procedures to be adopted ought to reflect that remedial principle. Undue expense and formality in the procedures should not be imposed. The procedures should, consistent with the overriding principle that all parties who may be affected must be given notice, be such that applications are dealt with promptly, inexpensively and efficiently.

[4] In appropriate cases, there will be a need to institute proceedings in such a way that parties who may oppose the grant of relief, or who may be affected but unable to consent, can be appropriately represented. Proceedings by way of an originating application, or for probate in solemn form, may in such cases be necessary. In other cases an interlocutory application in the course of probate proceedings may be more appropriate, as providing an efficient and less expensive method of ensuring that the issues are properly put before the Court. Where all those who could be affected consent, and there are no other factors which would make such a course inappropriate, the interests of justice may require that the application be dealt with on a “without notice” basis, in terms of r 7.46(3)(e) of the High Court Rules.

[5] In a minute dated 24 March 2010, I indicated a number of matters that needed to be addressed in this case before proper consideration could be given under r 7.46 to whether the application under s 14 may properly be considered on a “without notice” basis. A further affidavit has now been filed dealing with those aspects. The evidence now shows that there is no earlier will of the deceased. Accordingly, if the will is not declared valid there will be an intestacy. The persons who may be affected by the making of an order declaring the will valid will be those who would succeed on an intestacy in accordance with the rules set out in s 77 of the Administration Act 1969. The evidence discloses that this case would fall within category 4, so that all of the estate would be held on the statutory trusts for the issue of the intestate. The evidence establishes that the applicant is the only issue of the deceased. Accordingly, I am of the opinion that there is no other person to whom notice of the application ought to be given, and that the interests of justice require the application to be determined without notice under r 7.46(3)(e) of the High Court Rules.

[6] I turn now to a substantive consideration of the application. The first question is whether the document which is sought to be declared a valid will falls within s 14(1). The document is written in a Chinese language. A translation of that document has been produced. That translation indicates that the document appears to be a will, in terms of the definition in s 8. The document is signed by the testator. It is not witnessed. Accordingly, it does not meet the requirements of s 11 for validity. Section 14 therefore applies.

[7] The Court may make an order declaring the document valid under s14(2) if it is satisfied if the document expresses the deceased’s testamentary intentions. The test whether the Court is “satisfied” does not import any particular standard or burden of proof.[3] The task of the Court is to evaluate the relevant circumstances and reach a conclusion. I expressed some views on the proper approach in this context in Re Hickford.[4] Because of the importance of a declaration that a will be declared valid, there must be cogent evidence to support any finding which is relied upon in determining that the Court is satisfied on the s 14(2) test.

[8] The document in this case contains a clause which (translated) reads as follows:

(ii) Reason for making the will: as anything may happen to me at any time, I am hereby making a will to indicate how I want my property/debts to be dealt with after I die.

[9] The applicant’s evidence is that the testator, his father, showed the document to him in late 2008 or early 2009. He gave the applicant a copy. His explanation to the applicant at the time was that he had written a will and wanted the applicant to have a copy and know the provisions which he had made.

[10] The circumstances deposed to by the applicant, and particularly the nature of the document itself, satisfy me that the document does express the deceased’s testamentary intentions. The absence of the required witnesses does not suggest to me any intention on the part of the deceased that the will should not be effective as such.

[11] I consider, on the balance of probabilities assessed on that basis, that the absence of the requisite formalities of witnessing is explained by the fact that the will was clearly prepared without the assistance of a lawyer. The deceased had been in New Zealand for only about ten years at the time that the will was made. It is, in my view, more likely than not that the deceased was unaware of the requirements for the execution of a valid will.

[12] It is desirable to mention the following clause in the document.

Remarks: This will may be amended at any time as Xizhong Zhu wishes. The most recent version shall be regarded as Xizhong ZHU’s last will and testament.

[13] I do not regard that clause as detracting from the conclusion that the document expresses the deceased’s testamentary intentions. That clause is, in essence, a statement which reflects the legal position: namely that a will may be revoked, and a subsequent will generally revokes a prior will. The ability to revoke a will does not lead to a conclusion that the will does not, throughout the time it is effective, represent the testators intentions.

[14] There will be an order in terms of s 14 of the Act declaring as a valid will the document marked A annexed to the affidavit of the applicant.

“A D MacKenzie J”

Solicitors: Nicholsons, New Plymouth for Applicant

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[1] _{Re Estate of Hickford HC Napier CIV_2009-44-369, 13 August 2009.}

[2] _{Re MacNeil HC Timaru CIV-2008-476-612, 28 September 2009.}

[3] _{Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1 (SC) at [96].}

[4] Re Estate of Hickford HC Napier CIV_2009-44-369, 13 August 2009 at [11].