Meecham [2014] NZHC 2303 (22 September 2014)

Last Updated: 6 October 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-11228 [2014] NZHC 2303

IN THE ESTATE OF HAROLD HORACE MEECHAM of

_{Rotorua, deceased}

Hearing:	On the papers
Counsel:	P M Lines for applicants
Judgment:	22 September 2014

_{JUDGMENT OF CLIFFORD J}

[1] This is a without notice application made pursuant to s 14 of the Wills Act

2007 to declare a will prepared for the late Mr Meecham shortly before his death to be a valid will, notwithstanding the fact that the will was not signed by Mr Meecham.

[2] Mr Meecham died at Rotorua on or about 24 May 2014. On 21 May 2014

Mr Meecham had signed a written booklet, prepared by Rotorua Law Shop Ltd, containing his instructions for the preparation of a will. Ms Anne Ludgate, a Legal Executive, visited Mr Meecham in hospital the next day. Ms Ludgate has deposed that Mr Meecham was fully aware of his personal assets, the full names of the people he wished to appoint as executors and attorneys, together with the names and addresses of the final beneficiaries of his will. Ms Ludgate has attached to her affidavit a letter from the doctor who was looking after Mr Meecham during the last few days of his life. The doctor sets out his belief, that on 22 May 2014

Mr Meecham had capacity to make decisions regarding his will.

[3] Ms Ludgate further deposes that Mr Meecham was fully aware he was not well, and was thinking of moving into a rest home. Mr Meecham advised her that he

Re Meecham (deceased) [2014] NZHC 2303 [22 September 2014]

had a sister and brother in the United Kingdom, but that his estate was not to be left to them but rather to his nieces, who had supported and assisted him during his time in New Zealand.

[4] Ms Ludgate prepared a will for Mr Meecham, and also Enduring Powers of

Attorney, in accordance with his instructions. She returned at 11.00 am the next day,

23 May 2014, to have him sign those documents. Mr Meecham had, however, taken a turn for the worse overnight and was not well. Mr Meecham’s niece, who had been with him, left the room to enable Ms Ludgate to read through Mr Meecham’s will. Ms Ludgate deposes that Mr Meecham said he wished to sign his will, but physically was unable to do. Ms Ludgate further deposes that she believes Mr Meecham wished to sign his will, that he thoroughly understood the contents of the document but that he was physically too weak to sign it.

[5] Ms Adele Ransley, legal assistant, attended on Mr Meecham with Ms Ludgate. Ms Ransley confirms Ms Ludgate’s affidavit that Mr Meecham was able to say yes or not to questions asked of him and that he said yes to wanting to sign his will, tried to hold the pen to sign it but was physically unable to do so.

[6] Section 14 of the Wills 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.

[7] As MacKenzie J observed in Re Campbell (deceased), a decision of some importance in this area as it was delivered following full argument:¹

[4] Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills. Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode of expression did not comply with the formalities that the law required. Section 14 has been very beneficial in avoiding that outcome. Its utility is demonstrated by the fact that it has been invoked in over 80 cases since 2007.

[8] Against that background I consider Mr McNaughton’s application.

[9] The application is without notice. Is that appropriate? Mr McNaughton, who was named as executor in the will prepared for Mr Meecham, deposes that the persons with a beneficial interest in the estate of Mr Meecham on intestacy are Mr Meecham’s surviving sister, June Skeels, and his surviving brother, Peter Meecham, both of whom are adult. Both of them have provided written consent to the order sought being made.

[10] Mr McNaughton also deposes that Mr Meecham was not survived by any spouse, civil union partner, de facto partner, child, grandchild, parents or any other surviving brother or sister. Mr Meecham had two siblings who predeceased him but Mr McNaughton also deposes that he does not believe those siblings were survived by any children or grandchildren.

[11] Mr McNaughton also deposes to having made reasonable inquiries in terms of s 5A of the Status of Children Act 1969 as to the existence of a parent or child of the deceased who could claim an estate in the interest of the deceased by reason only of that Act and of the enactments governing the distribution of intestate estates. Mr McNaughton deposes that the result of those inquiries was that he did not discover any such parent or child.

[12] On that basis, I am satisfied that it is appropriate for this application to proceed on a without notice basis.

¹ Re Campbell (deceased) [2014] NZHC 1632.

[13] In terms of s 14(1) of the Wills Act I am also satisfied that the document in respect of which this application was made appears to be a will, does not comply with s 11 (it is not signed) and came into existence in New Zealand.

[14] In order to declare that document a valid will, I must be satisfied that the document expresses Mr Meecham’s testamentary intentions.

[15] Having regard to the affidavits sworn by Ms Ludgate and Ms Ransley, and to the written instructions of Mr Meecham attached to Ms Ludgate’s affidavit which provide instructions in terms of the document that was prepared as Mr Meecham’s will but not signed, I am satisfied that that document does express Mr Meecham’s testamentary intentions.

[16] There is, moreover, clear evidence that Mr Meecham wished to sign that document as his will, but was physically unable to do so and died shortly thereafter.

[17] For these reasons, I make an order that the document, a copy of which is exhibited to the affidavit of Mr McNaughton, is a valid will of Mr Meecham.

“Clifford J”

Solicitors:

Rotorua Law Shop Ltd, Rotorua.