Estate of Baier [2013] NZHC 504 (22 April 2013)

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Estate of Baier [2013] NZHC 504 (22 April 2013)

Last Updated: 29 April 2013

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2013-412-000158 [2013] NZHC 504

UNDER Section 14 Wills Act 2007

IN THE MATTER OF the estate of ANNETTE CLAIRE BAIER BETWEEN CRAIG ANTONY PADDON

Applicant

Hearing: (On Papers) Judgment: 22 April 2013

_{JUDGMENT OF WHATA J}

[1] There are two applications before me:

(a) Without notice application seeking leave for proceedings to be commenced by originating application; and

(b) Without notice application for an order that a will be declared valid.

[2] The applicant solicitor, Craig Antony Paddon, acted for Mrs Annette Claire Baier for over 16 years up until her death on 2 November 2012. The background to the application is essayed in an affidavit of Mr Paddon. I cannot improve on this narrative so I simply repeat it here as follows:

2. Over the years I have prepared (and Mrs Baier had executed) Wills dated:
   

i. 27 November 1996 (copy attached and marked with the

letter “A”);

ii. 10 October 2002 (copy attached and marked with the letter

“B”)’

iii. 15 October 2002 (copy attached and marked with the letter

_{“C”); and}

Estate of BAIER HC DUN CIV 2013-412-000158 [22 April 2013]

4. 9 December 2004 (“the 2004 Will”) (copy attached and marked with the letter “D”).
   

3. I had also acted for Mrs Baier and her late husband KURT ERIC BAIER (“Mr Baier”) in respect of their Family Trusts and I am a Trustee of those Trusts. I had many dealings with Mr and Mrs Baier over the years in my capacity as their solicitor.

4. In the years following the execution of the 2004 Will, two of the beneficiaries died. Mr Baier died on 24 October 2010 and Mrs Baier’s sister JENNIFER BREMNER GALBRAITH died on

20 May 2011.

THE NEW WILL

5. In March 2012 Mrs Baier contacted me and instructed me to prepare a new Will.

6. My instructions from Mrs Baier were received by way of a full interview conducted at Mrs Baier’s residence. My legal executive Linda Flesher was also present. Mrs Baier’s instructions were lucid and showed to me that she had given considerable thought to what she wanted to do.

7. Mrs Baier’s instructions to me were that she wished to update her Will to take into account the losses of her husband and her sister. She also wished to change the beneficiary entitled to receive the residue of her estate from the SOUTHERN REGION NEW ZEALAND RED CROSS INCORPORATED (“the Red Cross”) to the Trustees of THE AC & KE BAIER No 3 TRUST (“the No 3

Trust”) which was established in 2004.

8. The final beneficiary of the No 3 Trust is SARAH LINDSAY NAYLOR (“Sarah”). Sarah is the biological daughter of Mrs Baier but had been adopted out at birth. Mrs Baier and Sarah had become reacquainted by 2002 at least, as Sarah had been included as a beneficiary in Mrs Baier’s 2002 Wills (refer attachments marked “B” and “C”).

9. I did not question Mrs Baier about her reasons for changing her charitable legacies and she did not offer any explanation. However I am aware that between June 2011 and April 2012, Mrs Baier made donations to the Red Cross totalling approximately $42,000.00 in the name of her late husband.

10. She also wished to remove a legacy to the University of Otago and include a legacy to the SPCA.

11. A copy of my handwritten notes from the meeting are attached and

marked with the letter “E”.

12. During the preparation of the new Will, there were a few email exchanges between Mrs Baier and myself in which she requested various amendments to the drafts I had forwarded to her. Attached and marked with the letter “F” are several email exchanges between

us between 2 March and 7 March 2012. I believe these emails show that Mrs Baier was very clear about her testamentary intentions at the time I was receiving her new instructions.

13. Approximately 5 drafts were prepared with only minor changes between each draft.
    

...

(Emphasis in original)

[3] Mr Paddon avers that Mrs Baier approved a final draft by way of telephone instructions to him. He offered to bring the new will up to her residence for signing and witnessing but she advised that she would “drop into the office” when she was next coming into town. That did not occur.

[4] I note that the only material changes made between the 2004 will and the

2012 draft will reflect the change of circumstances noted at paragraph 7 in

Mr Paddon’s affidavit and the passing of Beverly White, the deceased’s sister.1

Assessment

[5] I propose to deal with the two applications together as they essentially arise from the same facts.

[6] Section 14 of the Wills Act 2007 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

1 Ms White died on 6 June 2010.

(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.

[7] I am satisfied that the requirements of s 14 are met, namely:

(a) There is a document that appears to be a will attached to this

judgment and marked “A”;

(b) The will is deficient because it is not signed and witnessed as required by s 11(2);

(c) The will plainly came into existence in New Zealand; and

(d) I am satisfied that the document expresses the deceased person’s

testamentary intentions.

[8] The only aspect of this application that caused me pause for thought is the changing of the beneficiaries of the will from Southern Region New Zealand Red Cross Incorporated to the trustees of the AC and KE Baier No. 3 Trust. It would normally be prudent in this context to notify affected beneficiaries of a change in the will. But in this case I consider it is surplus to requirements, Mr Paddon having averred that the new beneficiary is the biological daughter of Mrs Baier and secondly that there had been recent donations made to the Red Cross totalling approximately

$42,000 in the name of her late husband. I have no reason to doubt the veracity of Mr Paddon’s observations and it would seem to me that this is simply a case where, through circumstances beyond the control of Mr Paddon, Mrs Baier failed to execute her will in accordance with her clear instructions.

[9] For completeness, while it appears that some time elapsed between the giving of instructions and Mrs Baier’s death, there is no reason to assume that Mrs Baier had changed her mind or that she did not intend to sign the attached will in its final form.

[10] In the circumstances therefore I make a without notice order validating the final draft of the will attached to this judgment.

Solicitors:

Craig Paddon Lawyer, Dunedin (Counsel Acting: Donna Wingham)