Baldwin (deceased) [2014] NZHC 2787 (10 November 2014)

Last Updated: 18 November 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2014-441-000057 [2014] NZHC 2787

IN THE ESTATE OF AGNES ANNE BALDWIN (DECEASED)

Hearing:	On the papers
Counsel:	C D Bennett
Judgment	10 November 2014

_{JUDGMENT OF MACKENZIE J}

_{I direct that the delivery time of this judgment is}

3.30 pm on the 10^th day of December 2014.

_{Solicitors: Langley Twigg, Napier.}

Re Baldwin (Deceased) [2014] NZHC 2787 [10 November 2014]

[1] This is an application for an order under s 14 of the Wills Act 2007 declaring a document valid as the will of the deceased.

[2] In a minute dated 6 June 2014, I directed that the application was to be dealt with under pt 19 of the High Court Rules. The application is made without notice, so r 7.46 applies. I must determine whether the application can properly be dealt with without notice. In my minute of 6 June 2014, I directed that the solicitor for the applicant communicate with all of those persons and charities named as beneficiaries in the 2008 will advising them of the implications for them of the application, advising that they may seek legal advice if they wish, and seeking an indication as to whether any of those persons wished to be heard on the application. The solicitor for the applicant filed a lengthy memorandum setting out the steps which have been taken. None of those who responded indicated a wish to be heard in respect of the application. There were, however, some who did not respond. I addressed that in a minute dated 22 September 2014. I indicated that, for all but one of these, the effect of the validation was minor and would not preclude my acting under r 7.46(3)(e) of the High Court Rules. I directed that further steps be taken to obtain a response from Mr Peter Halliday the one person who would be substantially adversely affected by the validation. Counsel subsequently filed a memorandum dated

26 September 2014, advising that a response had been received from Mr Halliday. He has endorsed on the reminder letter to him that “What Anne did with her money and how it was divided is fine by me”. His note indicates that he had replied earlier, but that must have gone astray.

[3] In the circumstances, I consider that, under r 7.46(3)(e) the interests of justice require the application to be dealt with without notice. I now proceed to do so. The delay since receipt of counsel’s memorandum is regretted, and I apologise for it.

[4] The circumstances are set out in the affidavit of Mr Twigg, the solicitor for the late Mrs Baldwin. On or about 30 January 2014 he received a telephone call from Mrs Baldwin instructing him that she wished to make amendments to her will. He met with her on Monday 3 February 2014 at her home to take instructions. She had an existing will, dated 4 November 2008. Mr Twigg discussed with her the changes which she wished to make to that will. She appeared to Mr Twigg to be

well organised, with supporting documents concerning her assets, and various charities she had supported over the years. She was aware of the likely value of her estate, which she thought would be likely to be in excess of $500,000. She was aware of the terms of her earlier will and was clear in her instructions as to changes which she wished to make. Their meeting concluded on the basis that Mr Twigg was to draft a will in accordance with the instructions which she had given, and post it to her, particularly so she could confirm the spellings of the names. Once that had been done Mr Twigg would meet with her again to sign the will. He told her that if she wanted to make any changes she could telephone him and he could make the appropriate amendments before visiting her. Before he left he confirmed the instructions with her and she confirmed that she was happy with the proposed distribution and he was to draft the will.

[5] The meeting concluded late on that Monday afternoon. When Mr Twigg went into the office the following morning, he drafted a will in accordance with her instructions and posted the draft to her on Wednesday 5 February 2014. The deceased died in her sleep overnight on Wednesday 5 February.

[6] The first requirement of s 14(1) is that the document sought to be declared valid is to be a will. That requirement is met here. The document was prepared as a will by the deceased’s solicitor pursuant to instructions given to him to prepare a will.

[7] The second requirement is that the will does not comply with s 11, which prescribes the requirements for signing and witnessing. Clearly, the document does not comply with those requirements.

[8] The Court may make an order declaring the document valid if it is satisfied that the document expresses the deceased’s testamentary intentions. I am satisfied that this document does represent the deceased’s testamentary intentions. The circumstances in which she gave instructions to Mr Twigg clearly establish that. There is nothing to indicate that the deceased may have had a change of heart after giving those instructions. I am satisfied that the only reason the will was not signed is Mrs Baldwin’s untimely death.

[9] There will be an order declaring valid as the will of Mrs Baldwin the document annexed as exhibit C to the affidavit of Mr Twigg sworn on 29 April 2014.

“A D MacKenzie J”