Estate of Ellicock [2014] NZHC 781 (16 April 2014)

Last Updated: 5 June 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-1614 [2014] NZHC 781

IN THE ESTATE of SYLVIA DAWN ELLICOCK formerly known as SYLVIA DAWN BOLTEN PEDERSEN of Taumarunui, Home Executive

Hearing:	(on the papers)
Appearances:	J C Corry for the applicants
Judgment:	16 April 2014

JUDGMENT OF WOODHOUSE J (Validation of will: issues as to plight)

This judgment was delivered by me on 16 April 2014 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

..........................................

Solicitors / Counsel:

Mr J C Corry, Barrister, Wellington

Mr P V Paino, Paino and Robinson, Solicitors, Upper Hutt

RE ELLICOCK ESTATE [2014] NZHC 781 [16 April 2014]

[1] Ms Yardena Bolten-Pedersen is the only child of the deceased, Mrs Sylvia Dawn Ellicock, formerly known as Sylvia Dawn Bolten Pedersen. Ms Bolten- Pedersen is named as executor and trustee of a document apparently signed by Mrs Ellicock on or about 11 February 2012 as her last will. There is a question of validity of this document, but for convenience I will refer to it as “the will”.

[2] An application has been made by Ms Bolten-Pedersen for an order validating the will. This application is necessary because it was discovered, after Mrs Ellicock had died, that although she had signed the will, twice, in the presence of two witnesses, this was done separately before each witness. There are also two issues as to plight; questions as to whether all pages of the will are the original pages.

Background

[3] The will was drafted by solicitors in Upper Hutt and sent to Mrs Ellicock in Taumarunui. Mrs Ellicock signed the will in the presence of Patricia Jayne Gilling, who knew Mrs Ellicock and Ms Gilling witnessed the signature. These were the first two signatures. Ms Gilling confirmed that this occurred on or about 11 February

2012 at her home in Taumarunui.

[4] Mrs Ellicock then took the will to the home of Dale Verona Thurston, who also knew Mrs Ellicock. Mrs Thurston says in an affidavit that the will had already been signed by Mrs Ellicock and by a witness named as Pat Gilling. Mrs Ellicock signed it again and Mrs Thurston witnessed the signing. Mrs Thurston said:

I remember Sylvia worrying about whether she had signed the will enough as she had already signed it with another witness named as Pat Gilling. I considered her signing the will twice as her being over enthusiastic.

[5] There is no issue as to Mrs Ellicock’s physical or mental health at the time.

[6] The will was returned by Mrs Ellicock to the Upper Hutt solicitors. No-one at the law firm noticed that there were two sets of staple marks in the upper left hand corner of the will, but this was noted by the Registrar. This gives rise to the first issue as to plight.

[7] The will, with the two staple marks, was released by the Registrar to the Upper Hutt solicitors to obtain affidavit evidence as to plight. During this process the staple that was in the will fell out and the document as returned to the Registrar, with the application for an order validating the will, was held together with a paperclip. This is the second issue as to plight.

Issues as to plight

[8] I am satisfied that the document in respect of which an order of validity is sought is the document, in its entirety, that was signed by Mrs Ellicock, twice, on or about 11 February 2012 and witnessed, on the separate occasions, by Ms Gilling and Mrs Thurston. I am satisfied to this effect by the evidence from Ms Gilling and Mrs Thurston and by the evidence of Sarah Jane Bee and Brenda Marie McDonald. Ms Bee is a solicitor who was employed by the Upper Hutt solicitors. Ms Bee sent the will to Mrs Ellicock for signature and received the signed will back at the solicitor’s office on 14 February 2012 with the pages stapled together. Ms Bee did not notice any pin marks at that time. Nor did she notice any pin marks when she arranged for Ms Bolten-Pedersen to swear an affidavit to obtain a grant of probate. Ms Bee did not unstaple and re-staple the will and, to the best of her knowledge, based on the practice of the Upper Hutt solicitors, believes that no-one else in the office would have unstapled and re-stapled the will between the date it was received back from Mrs Ellicock to the date it was filed for the grant of probate.

[9] I am satisfied that it can be inferred that the unstapling and re-stapling occurred before the will was returned to the Upper Hutt solicitors, that the unstapling and re-stapling was probably done by Mrs Ellicock and that, in any event, Mrs Ellicock did intend that the re-stapled document sent by her to the solicitors, with the signatures, was to operate as her will.

[10] There is further evidence explaining how the staple fell out when the will was returned by the Registrar. Nothing untoward has occurred which affects the integrity of the will, or its individual pages.

Without notice application

[11] I am satisfied that the application for an order declaring the will valid may be made without formal notice to those who are or may be interested in the estate on an intestacy or pursuant to the immediate prior will. This is because there is satisfactory evidence as to who the other interested parties are or may be and all of them have consented to the making of the validation order, apart from unborn children of Ms Bolten-Pedersen. I am satisfied that there is no justification for appointing counsel to represent unborn children of Ms Bolten-Pedersen.

Validation

[12] I am satisfied that the document that I have referred to as the will does express Mrs Ellicock’s testamentary intentions and that an order declaring the document valid should be made.

[13] The primary evidence for this conclusion is the evidence from Ms Gilling and Mrs Thurston that I have already referred to. It is supported by the evidence of Ms McDonald who drafted the will and received the signed document. It is confirmed indirectly by consideration of the provisions of the will and of the immediate prior will. In addition, there is the consent of the parties who would or might otherwise have an interest in the estate. I note that this includes Mrs Ellicock’s widower, Mr William Terence Ellicock.

Result

[14] There is an order declaring that the document dated 11 February 2012 which appears to be the will of Sylvia Dawn Ellicock, bearing two signatures of S D Ellicock with the signatures of witnesses Dale V Thurston and Pat Gilling, and produced by Yardena Bolten-Pedersen, does express the testamentary intentions of the deceased Sylvia Dawn Ellicock, formerly known as Sylvia Dawn Bolten

_{Pedersen and is a valid will.}

Woodhouse J