Re Feron HC Timaru CIV 2011-476-000617 [2012] NZHC 44; [2012] 2 NZLR 551 (13 February 2012)

Last Updated: 26 January 2018

For a Court ready (fee required) version please follow this link

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2011-476-000617 [2012] NZHC 44

IN THE MATTER OF Estate of TIFFANY GWENDA FERON

BETWEEN RACHEL KATHLEEN SMYTH Applicant

Hearing: (Dealt with on Papers) Counsel: R K Smyth

Judgment: 13 February 2012

_{JUDGMENT OF WHATA J}

[1] The applicant seeks declaration pursuant to s 14 of the Wills Act 2007, without notice, declaring a will valid. The application is supported by an affidavit from the primary beneficiaries under the previous will and from the deceased’s solicitor.

[2] The background can be stated succinctly. On 25 January 2010 the deceased, Ms Feron, gave verbal instructions to her solicitor, Ms Smyth, to update her will. Ms Smyth took instructions in the form of detailed notes for the purpose of preparing a new will. Unfortunately, due to the February earthquake, work on the will was delayed. Sadly, before the will could be presented to Ms Feron, she died on

16 March 2011.

[3] Ms Smyth has met with the immediate surviving members, including Ms Feron’s father, brother and sister, who were to inherit in a most substantial manner under the previous or existing will. She outlined the differences between the existing will and the new will. A copy of the comparison was produced in evidence.

_{The surviving members consent to the changes.}

Estate of T G Feron HC TIM CIV 2011-476-000617 [13 February 2012]

[4] Ms Smyth has also produced a draft of the proposed new will according to the instructions and details the key effect of the changes.

[5] Of these, the following changes have more than negligible effect. Ms Ruth Bateup is no longer an executor and does not inherit under the new will. She was to receive some personal effects and to take care of Ms Feron’s cat. It appears from the evidence that Ms Feron had lost contact with Ms Bateup at the time of giving instructions on the new will.

[6] In addition her sister-in-law was to receive a car, but now will choose certain personal items as she wishes. Finally, certain charities were to receive specified cash sums. That has changed to a share of the residue of the estate after all other distributions. It transpires, however, that there might not be any such residue after creditors are paid. It also transpires that the new beneficiaries may not receive the bequests in any event because of the amount owed to creditors.

Without notice

[7] I must first determine whether this application should proceed without notice. I must be satisfied that all persons who may be affected by the new will have had a proper opportunity to be represented in these proceedings. In this case the persons most affected by the changes have consented to the changes. Mr Carey is affected, but given that he remains a beneficiary, the overall effect on him is de minimis. I nevertheless consider that the changes affect Ms Bateup, Mrs Andrea John and the two charities in a sufficiently material way that they should be on notice. I will address the implications of this at the end of my judgment.

[8] I note for completeness, that a practical approach must be taken to these matters, given the limited bequests involved in the will and the need for expediency.

Substantive issues

[9] Section 14 provides:

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.

[10] For the purposes of this case, the formal requirements of s 14 are: (a) There must be a document that appears to be a will; and

(b) I must be satisfied that the document must express the deceased’s

testamentary intentions.

[11] In Re Estate of Murray¹ 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 form.

_{Furthermore, in reaching a conclusion I am also afforded a broad power to consider}

¹ Re Estate of Murray HC Masterton CIV 2011-435-000178, 20 December 2011.

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.² By contrast, where the Courts have not been satisfied of testamentary intentions, the Courts have refused to accept the notes or draft will.³

Assessment - Does the document appear to be a will?

[13] Plainly the draft will satisfies the requirements for a will in terms of s 8(1), save that it is not signed. The reason, however, it is not signed is that it was drafted after the deceased passed away. This raises the issue as to whether a document drafted after the death of the testator qualifies as a document under s 14. I have come to the conclusion that it cannot. The linkage to s 11 strongly suggests that the purpose of s 14 is to cure a non-compliance with s 11, rather than a wholesale absence of a will. There must at least be a document purporting to be a will under the hand or direction of the deceased prior to death. The draft will post-dates the death and therefore does not satisfy this criterion.

[14] I therefore turn to whether the notes taken by the deceased solicitor, combined with the subsequent email, might constitute a will (and codicil) for the purposes of s 14.

[15] Section 14, as I have said, is curative of any technical non compliance. But it must be a “document” that “appears” to be a will. A document is broadly defined as any material on which there is writing. I am satisfied that the notes and email are

_{“documents” for the purpose of s 14.}

² Estate of Blakely (1983) 32 SASR 473; Estate of TLB [2005] SASC 459; (2005) 94 SASR 450; In the Matter of the Will of

^{Lobato; Shields v Caratozzolo (1991) 6 WAR 1; Ryan v Kazacos [2001] NSWSC 140; (2001) 159 FLR 452.}

³ Baumanis v Praulin (1980) 25 SASR 423; Estate of Schwartzkopff [2006] SASC 131; [2006] 94 SASR 465; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535. 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.

[16] For a document then to “appear” to be a will it must: (a) Dispose of property

(b) Appoint testamentary guardians, or

(c) Dispose of property to a personal representative.

[17] The notes and email are attached to this judgment for ease of reference. The notes and email are documents that:

(a) Dispose of the deceased’s property

(b) Identify Ms Smyth as the sole executor

(c) Deal with the residue (though the exact quantum of the share to go to

Advance Ashburton has to be inferred by necessary implication) (d) Address funeral arrangements.

[18] Needless to say, notes being notes, the reader is required to fill numerous gaps to make sense of the words used. But the notes are self-explanatory and the intentions are tolerably clear. The email is more complete, and the intentions of the deceased are obvious. Taken together the notes and email at least provide the skeleton for a will. The notes are headed “New Will”, the executor is clearly identified and the dispositions recorded in an orderly way.

[19] The issue remains however as to whether this is sufficient for the purposes of s 14. Approached literally, the documents appear, as I have said, like a skeleton for a will. When however I approach s 14 with its curative purpose in mind I am content to proceed to approach the concept of “appear” on a robust basis, provided that I am satisfied that the skeleton represents the intentions of the deceased. I would add that the weaker the documentation, the stronger the evidence will need to be that the documents represent the intentions of the deceased.

[20] In this case the Court has the benefit of direct testimony from the deceased’s solicitor, Ms Smyth, who transcribed the detailed notes. As I have said the notes plainly evince the deceased’s intentions to dispose of her property. Ms Smyth also avers to the fact that the Christchurch earthquake prevented the timely drafting of a complete will and that the deceased died shortly after those earthquakes. There is nothing to suggest that the deceased had changed her mind in the relatively short period between the giving of instructions and the deceased’s passing. The primary beneficiaries under the previous will consent to the declaration. If there was something amiss, I would have expected one of them to register concern.

[21] Accordingly I am satisfied that the notes and email “appear” to be a will for the purposes of s 14. While I have been unable to locate a New Zealand authority directly on point, I gain some assistance from Estate of TLB [2005] SASC 459; (2005) 94 SASR 450 where the Court admitted a “Will Instruction Sheet” to probate.

[22] I note for completeness that this finding should not be seen as endorsing sloppy or deficient approaches to the drafting and execution of wills. Each case will be determined on its own merits. There are rather unique aspects to this case which call for latitude and the evidence of the deceased’s intentions is strong.

[23] Given that I have reached this conclusion in the way that I have it is unnecessary for me to separately enquire into whether or not the document evinces the intentions of the deceased. As I have said, plainly it does.

Directions

[24] While I am satisfied that the notes in the email were documents expressing Ms Feron’s testamentary wishes, I am not satisfied I should make a declaration without having the applicant endeavour to obtain the consent of Ms Bateup, Mrs Andrea John and the two charities specified in the notes.

[25] On that basis I direct that Ms Smyth seek to obtain their consent. If on reasonable endeavours any of those persons cannot be located, Ms Smyth is to file a further affidavit detailing the steps taken by her to reach those persons within 14

days of this judgment. If I am satisfied that a reasonable effort has been made to obtain consent, or if consent is in fact obtained, I will make a final order declaring the notes and email to be a valid will. The draft will produced by Ms Smyth should be treated as an aide memoire to her as executor of the will.

[26] By reasonable endeavours I mean a sufficiently robust search for the addresses of the affected persons and sending to them a copy of this judgment and advising them that if they oppose the declaration to advise the Court within seven days of sending the judgment to them.

Solicitors:

Amicus Legal, PO Box 15, Ashburton

^NV L’/L.

_c CD _r

_{s co—i,}

:7 _i ^J

^{-1 J} Q ^çSJ

C\JQNJ

Lf

_c-L ^cLc

Exhibit Note

^This Is ^the annexure ^{marked .. referred to} in the

_{) anne3ced affidavit of}

^{(/ (O3 which was sworn at}

^{this day} of before me:

^{Signature ..} _iE..

4 SolicItor of e High Couri of New Zealand

LTrM} _iL4J1

-(4 _Ljw ^-

(çc _i

V (-t _/N

PIIVI

ft/

_{d- 4} :r

2

)°2 ^{ya*) 1}

- ²⁾

_-“?Y ^?y

^6X3 ccz’e

1
^A-2 I

_/ ^r)

Dc)Th

c. ₄