Cornelius [2012] NZHC 563 (28 March 2012)

Last Updated: 12 April 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-341 [2012] NZHC 563

BETWEEN IN THE ESTATE OF GRANT CHARLES CORNELIUS, DECEASED

Hearing: On the papers

Counsel: G B Towers for applicants

Judgment: 28 March 2012

_{JUDGMENT OF ALLAN J}

Solicitors:

_{Simpson Grierson, Auckland} [e-mail]

ESTATE OF CORNELIUS, DECEASED HC AK CIV 2012-404-341 [28 March 2012]

[1] Grant Charles Cornelius died suddenly in Auckland on 5 September 2011. He left no executed will. There is however, an unsigned will, prepared by his solicitors in July 2008.

[2] Initially, Mr Towers applied for an order validating the unsigned document, in reliance on s 14 of the Wills Act 2007 (the Act), and for probate in solemn form of that will if validated.

[3] On 9 February 2012, Potter J issued a minute in which she indicated that further evidence was required to explain why the deceased failed to sign the unexecuted will and pointed out that, if an order was made pursuant to s 14 of the Act, there would be no need for an application for probate in solemn form.

[4] Counsel subsequently filed a without notice application for a declaration of validity under s 14 of the Act, together with a further affidavit as to the deceased’s reasons for neglecting to sign the draft will.

[5] The application is unopposed. All those affected by it have signed and lodged with the Court their consent to the making of an order.

Factual background

[6] Mr Cornelius is survived by his widow, Sarah Jane Cornelius, and three adult children, all of whom are in relationships. One has mental health issues.

[7] On 17 February 2006, Mr and Mrs Cornelius settled the Cornelius Family Trust. The discretionary beneficiaries are the three children, together with grandchildren and great grandchildren. The three children are the final beneficiaries of the trust.

[8] In July 2008, Mr Cornelius consulted his solicitor, Mr R G Willis, a partner in the firm of Simpson Grierson. Mr Willis passed on the instructions to Mr H C Thompson, a solicitor in the firm specialising in wills and estates. Mr Thompson

prepared a will in accordance with those instructions and sent the draft will to Mr Cornelius under cover of a letter dated 10 July 2008. The covering letter explained the effect of the main provisions in the will, and also referred to a memorandum of wishes in respect of the administration of the Cornelius Family Trust. The memorandum was also drafted by Mr Thompson. In the unsigned will the whole estate, save for chattels which are given to Mrs Cornelius, passes to the trustees of the Cornelius Family Trust. The memorandum of wishes was intended to provide some directions to the trustees as to the application of the estate, particularly in respect of the needs of the child who has mental health difficulties. A few weeks later, Simpson Grierson forwarded a bill of costs for their services to date.

[9] Mr Cornelius’s accountant and business adviser was Mr S F Clerk, who had for many years acted in that capacity for both Mr and Mrs Cornelius.

[10] Mr Clerk says:

3. Grant was not a sophisticated businessman and it has been my experience that he relied heavily on his professional advisers to ensure that his affairs were in order and any deadlines were met.

4. It was usual for me to initiate all of our meetings and set up appointments when there were matters that needed to be attended to or any paperwork that needed to be signed.

5. It was my experience that when dealing with Grant, that he required a great deal of prompting to finalise his business and personal matters. Grant was never proactive with the necessary paperwork I provided him and regularly ‘sat on’ documents; invariably, I had to

‘push and prod’ him to get anything signed.

6. As set out in my first affidavit:

(a) During the period 19 September 2010 and 27 October 2010, I had discussions with Grant regarding his draft will prepared by his solicitors, Simpson Grierson, in 2008 (draft will);

(b) During our discussions I noted on the copy of the draft will that I hold on Grant’s file (exhibited to my first affidavit), ticks or comments alongside each of the clauses confirming Grant’s agreement to the provisions of the draft will; and

(c) I have no hesitation in confirming that at the end of our discussions Grant was happy with the provisions of the draft will and that he wished to sign it.

7. Following our discussions I advised Grant to contact his solicitors to sign the draft will.

8. Grant did not raise his will with me again so I assumed that he had followed my advice and signed it with his solicitors.

9. Given my history with Grant and my experiences of dealing with him, I believe that Grant simply never got around to signing the draft will. It took Grant nearly two years to discuss the draft will with me, so his failure to sign it following our meeting does not come as a surprise.

10. I repeat that at the end of our discussions Grant was happy with the provisions of his draft will and that he wished to sign it.

[11] At the time of his sudden death on 5 September 2011, Mr Cornelius had still done nothing about executing the draft will sent to him by his solicitors some three years earlier.

Jurisdiction

[12] Section 14 of the Act 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.

[13] The provisions of s 14 have been considered by the Court on numerous recent occasions.[1] Essentially however, each case must be considered on its own facts.[2]

Discussion

[14] The provisions of s 14 apply only to wills made on or after 1 November

2007.[3] I am satisfied that the unexecuted will was prepared in July 2008, and so the provisions of s 14 apply. I am satisfied also that the draft appears to be a will. It was prepared by solicitors and plainly intended to have testamentary effect upon execution. I am further satisfied that the provisions of s 14(1)(b) apply, in that the execution requirements of s 11 have not been complied with. Finally, the evidence indicates that the will was prepared in New Zealand.

[15] The Court may make an order validating the unsigned will if it is satisfied that the document expresses the deceased person’s testamentary intentions. Mr Willis and Mr Thompson each say that the unsigned will was prepared on the instructions of Mr Cornelius and that it reflected those instructions.

[16] Mrs Cornelius says that she had, earlier in 2006, signed her own will which was a mirror will of the draft document, the subject of the present application. She and her late husband intended to make precisely identical testamentary dispositions.

[17] Mr Clerk’s evidence satisfied me that Mr Cornelius was given to procrastination, and that he simply sat on important documents from time to time. Mr Clerk also says that in September and October 2010, he discussed the draft will with Mr Cornelius, and that from notations and comments he has made on a copy of the draft will that he held, he is able to say he discussed it in detail with

_{Mr Cornelius, who was ultimately happy with it.}

[18] In my view it is a proper inference that, having discussed the draft will with Mr Clerk two years after receiving it, Mr Cornelius then never got around to executing it, although it did reflect his testamentary intentions.

[19] If the relief sought is not granted, Mr Cornelius’s estate must be administered on the basis that he died intestate. Those who would be entitled to share in the estate on that basis are Mrs Cornelius and the three adult children. Each has signed a consent form in which they say that they have had their rights under s 77 of the Administration Act 1969 explained to them. Each consents to a grant of probate of the unsigned will being proved in solemn form, but I regard the consent documents as covering also the present application under s 14 of the Act. A consent to the grant of probate necessarily encompasses the making of an order under s 14 as well.

[20] I am satisfied that the requirements of s 14 have been made out and that the applicants are entitled to the order sought.

Result

[21] There will be an order declaring that the draft unexecuted will, prepared in July 2008 by Simpson Grierson and forwarded to the deceased, is valid pursuant to s 14 of the Act.

C J Allan J

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[1] Examples are Re Estate of Hickford (deceased) HC Napier CIV 2009-441-369, 13 August 2009;

Gladwin v Public Trust [2011] 3 NZLR 566; Re Estate Fraser HC Napier CIV 2011-441-700, 20

_{December 2011 and Re Estate Murray HC Masterton CIV 2011-435-178, 20 December 2011.}

[2] _{Re Estate Fraser at [8].}

[3] Wills Act 2007 s 40(2)(k).