Estate of Cross [2015] NZHC 692 (15 April 2015)

Last Updated: 29 April 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000666 [2015] NZHC 692

UNDER	Section 14 of the Wills Act 2007
IN THE MATTER	of an application for an order declaring a will valid and for obtaining grant of probate
IN THE ESTATE	of SHIRLEY BERTHA CROSS

Hearing:	(On the papers)
Judgment:	15 April 2015

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 15 April 2015 at 11.45 am, pursuant to Rule 11.5 of the High

_{Court Rules.}

Registrar/Deputy Registrar

Date...............

Solicitors: Butelaw, Auckland

Copy to: S W M Piggin, Auckland

In the Estate of CROSS [2015] NZHC 692 [15 April 2015]

Introduction

[1] The applicant, Paula Christine Cross, seeks orders:

(a) declaring a document produced to the Court dated 7 July 2014 and executed by Shirley Bertha Cross (the deceased) on 6 July 2014, to be a valid will of the deceased;

(b) declaring that the dispositions in the will to the applicant and Sandra

Lesley Abel are valid and effective; and

(c) directing that probate in common form of the will of the deceased issue to the applicant.

Background

[2] The deceased died on 9 July 2014 aged 77. She was survived by her two daughters, the applicant and Sandra Abel. Although the deceased had two further children, Phillippa Channing and Janne Barbier, both were legally adopted out and pursuant to s 16(2)(b) of the Adoption Act 1955, ceased to be children of the deceased for legal purposes.

[3] The deceased was diagnosed with cancer and by June 2014 knew she was going to die. On the weekend of 5 and 6 July 2014 the deceased was at home. Both her daughters, their partners, and her former husband (from whom she was divorced) and his wife were visiting her. The deceased told the applicant what provisions she wanted in her will. She had not previously had a will. The applicant converted those wishes into a typed up version of a document with the intention that it be provided to the deceased’s solicitor to be incorporated into a formal will document. Although in its introductory remarks it appears in the form of a letter to the solicitor, importantly the operative provisions of the document are expressed in formal terms consistent with a will document. The document provides for the appointment of trustees and executors and the disposition of the deceased’s property.

[4] The document was read over by the deceased on 6 July 2014. After reading it the deceased wanted to make two additions or amendments to it. They were handwritten in by the applicant. The first provided “the Maori Land gifted to me by Uncle Kitch Hopa is to go to Mathew Cross”. That referred to an interest in Maori land, which she intended to leave to her grandson. The other was to clarify the second to last typed paragraph. The word “difference” was crossed out so that the sentence read “The rest of my estate is to be split evenly between my daughters Paula and Sandra”.

[5] At about midday on Sunday 6 July 2014 the deceased signed the document incorporating the handwritten changes. She did so sitting up in her bed in her bedroom. This was in the presence of the applicant, Sandra and also the deceased’s former husband Ronald Cross and Ronald’s wife, Caroline Garner-Cross. However, only Sandra and the applicant signed as witnesses.

[6] Although the document was executed on 6 July 2014, it is dated 7 July 2014. As the applicant has explained, it was intended to be (and was) sent to the lawyer on Monday, 7 July 2014. Mr Rust, the solicitor, received the document the following morning, Tuesday 8 July 2014 and prepared a draft will which he emailed back to the applicant. Unfortunately before the draft will was able to be printed and executed the deceased passed away early in the morning of 9 July 2014.

[7] It is against the background of those facts that the various orders are sought.

Preliminary matters

[8] Leave is required to proceed with the application under Part 19 of the Rules. While r 19.2(xa) refers to applications under s 14 of the Wills Act 2007 (the Act), that section is only engaged where the will does not comply with s 11.

[9] The principal application in this case is on the basis that the document is a valid will that complies with s 11. To the extent that leave is required, however, leave is granted as it is appropriate in this case to bring the application under Part 19, given the only affected parties are the applicant and her sister, Sandra Abel, both of whom consent to the application.

[10] The next preliminary issue is that of venue and the form of the application for probate. An application under Part 27 of the Rules for a grant without notice is required by r 27.10 to be filed in the Court at Wellington. The application should also be in form PR1. However, given that the Court is seized of the application under Part 19 in the present circumstances and having regard to r 1.2 I am prepared to deal with the application as it is currently before the Court given that the evidence required to support an application under r 27.4 is before the Court.

The application of s 11

[11] Section 7 of the Act provides a will is valid if it complies with s 11 or is declared valid under s 14. For present purposes s 8 of the Act provides that a will means a document that:

(a) is made by a natural person; and

(b) disposes of property to which the person is entitled when he or she dies, or disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death.

On its face the directions in the will document in the present case comply with s 8 of the Act.

[12] While the introductory words of the will document follow the form of a letter to the solicitor Mr Rust, with instructions to prepare a will (which indeed Mr Rust acted upon), the operative provisions of the document signed by the deceased actually provide for the appointment of Mr Rust and the applicant as “executives [sic]” to the estate and disposes of the assets held by the deceased at the time of the will and contemplated to be held as at the time of her death. The document satisfies the requirements of s 8.

[13] Section 11 of the Act provides:

11 Requirements for validity of wills

(1) A will must be in writing.

(2) A will must be signed and witnessed as described in subsections (3)

and (4).

[(3) The will-maker must—

(a) sign the document; or

(b) direct another person to sign the document on his or her behalf in his or her presence.]

[(4) At least 2 witnesses must—

(a) be together in the will-maker's presence when the will- maker—

(i) complies with subsection (3); or

(ii) acknowledges that—

(A) he or she signed the document earlier and that the signature on the document is his or her own; or

(B) another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b) each sign the document in the will-maker's presence.]

[(5) As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker's presence, the following:

(a) that he or she was present with the other witnesses when the will-maker—

(i) signed the document; or

(ii) acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or

(iii) directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

(iv) acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b) that he or she signed the document in the will-maker's presence.]

[(6) No particular form of words is required for the purposes of subsection (5).]

[14] I accept Mr Piggin’s submission that the document presented to the Court meets the requirements of s 11(1) – (4) inclusive in that it is in writing, signed by the deceased, the will maker, and was signed in the presence of two witnesses who have also signed the will. While there is no attestation stated in the document in accordance with s 11(5), an attestation claim is not required by s 11(4). Such a clause is a means of providing evidence of compliance with s 11(4). In the present case the evidence before the Court from the applicant, her sister Sandra Abel, the deceased’s former husband Reginald Cross and his wife, Ms Garner-Cross, satisfies the Court that the will document was executed by the deceased in the presence of the applicant and Sandra Abel, both of whom signed the will document in the deceased’s presence.

[15] As the will document meets the requirements of ss 8 and 11 it is a valid will.

The effect of s 13 of the Act

[16] Section 13(1) provides that a disposition of property in a will is void if the disposition is to a witness.¹ Prima facie then the dispositions to the applicant and her sister Sandra Abel are invalid as both witnessed the will.

[17] However, s 13(2) provides:

(2) Subsection (1) does not apply if—

(a) the will has at least 2 witnesses who are not described in the subsection; or

(b) the disposition is the repayment of a debt to a person described in the subsection; or

(c) all the persons who would benefit directly from the avoidance of the disposition—

(i) consent in writing or electronically to the distribution of the property; and

_{(ii) have legal capacity to give consent; or}

¹ Wills Act 2007, s 13(1)(a).

(d) the High Court is satisfied that the will-maker—

(i) knew and approved of the disposition; and

(ii) made the disposition voluntarily.

[18] In the present case there were two other witnesses to the execution of the will, the deceased’s former husband and Ms Garner-Cross. In the absence of argument on the point I accept that the requirement in s 13(2)(a) for at least two witnesses who are not caught by s 13(1) can be satisfied in this case. In principle s 13(2)(a) does not seem to require the additional witnesses to execute the will document. It is their presence as a counter to the influence of the witnesses who are provided for which is important.

[19] In any event, s 13(2)(c) applies in that all persons who would benefit directly from the avoidance of the disposition consent in this case. As there is no earlier will document, if the dispositions failed in this case, the deceased’s estate would pass by way of intestacy. The beneficiaries would be the applicant and Sandra Abel. Both have consented in writing to the distribution in accordance with the disposition in the will document.

[20] The effect is that the prima facie provision in s 13(1)(a) voiding the disposition does not apply.

[21] It is not in the circumstances necessary to consider s 13(2)(d) but if necessary, on the evidence before the Court, I would be prepared to find that the deceased knew and approved of the disposition, and made the disposition to her daughters voluntarily. The evidence is that although confined to her bed and receiving pain relief, Mrs Cross was well aware of her situation, directed matters from her bedroom and directed the changes to the will document before it was signed.

[22] That leaves the remaining issue, namely the application for probate.

The application for grant of probate in common form

[23] The application for probate is made without notice. The applicant is one of the executors named in the will, and the other party named as executor in the will, Mr John David Rust has confirmed that he has renounced all his right and title to probate and execution of the will.

[24] There are a number of other procedural probate matters which have been addressed in the application. The plight and condition of the will have been explained by the evidence. It appears the hole punches in the document occurred when the document was received in Mr Rust’s office. They have not affected the wording of the will document. There is some illegible notation on the back of the document, which on the evidence I accept is not the writing of the deceased. The document has vertical and horizontal fold marks or creases which are explained by the fact the document was placed in an envelope to be couriered to Mr Rust’s office and was then subsequently placed on Mr Rust’s file. The document itself does not refer to any additional or other documents.

[25] As noted above, I accept the evidence that although dated 7 July the document was executed on 6 July 2014. In this case it is the only will of the deceased.

[26] Finally, the evidence also satisfies the Court that the handwritten amendments to the will were made before the will was signed.

[27] For the above reasons I am satisfied it is appropriate that there be an order directing probate in common form of the document executed on 6 July 2014 bearing the date 7 July 2014 is to issue to the applicant as the remaining executor, (Mr Rust having renounced).

_{[28] I leave it for counsel to file an appropriate form of order and probate.}

Venning J