Estate of Cherry [2016] NZHC 921 (6 May 2016)

Last Updated: 16 May 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-242 [2016] NZHC 921

_{IN THE ESTATE of JANET NORMA CHERRY}

Hearing:	(On the papers)
Appearances:	M R Smyth for the Applicants
Judgment:	6 May 2016

_{JUDGMENT OF DUNNINGHAM J}

[1] This is an originating application for an order declaring a document, being an unsigned will, to be the last will of the deceased, Janet Norma Cherry. The application is made by the executors named in the document, and is supported by affidavit evidence from them, explaining that the document was prepared as a will on Ms Cherry’s instructions, but that she died before she had an opportunity to execute the will.

[2] For reasons which will be explained in the following decision, I have decided it is appropriate to make the orders sought on the papers, and without notice to potentially affected parties. This is because I am satisfied that all persons who may be affected by the making of the order have consented to the order being made.

The relevant law

[3] Section 14 of the Wills Act 2007 provides:

_{14 High Court may declare will valid}

Estate of Janet Norma Cherry [2016] NZHC 921 [6 May 2016]

(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.

[4] In the present case it is the fact that s 11 has not been complied with, as the document has not been executed by the testator, which has prompted the application. What remains for me to be satisfied of is:

(a) whether the document appears to be a will; and

(b) whether the document expresses the deceased’s testamentary intentions.

How the document came into being

[5] The circumstances in which the document was created are outlined in the affidavit of Jeffrey John McCall, Ms Cherry’s solicitor. A former work colleague of Ms Cherry, Mr David Tier, contacted Mr McCall’s firm to see whether that firm could take instructions from Ms Cherry, on an urgent basis, to prepare her will as she had been diagnosed with cancer and had been given only a few months to live.

[6] Mr McCall met with Ms Cherry and Mr Tier on 12 October 2015. Ms Cherry told Mr McCall she wanted to make a will as she was not sure if she had a current one. She had prepared a list in her own handwriting of her assets and of specific gifts she wanted to give to certain people and charities, along with directions as to

the distribution of the residual estate. She asked Mr McCall, and Mr Tier, if they were prepared to be the executors of the will and both men agreed to this.

[7] She then gave instructions appointing her grandniece and grandnephew as beneficiaries of the estate, along with various named charities. She explained that she did not wish her late husband’s family to benefit from her death, as she was estranged from them. Mr McCall made enquiries as to whether Ms Cherry had any children, siblings or parents alive and she told him that she did not.

[8] A draft will was prepared the following day, 13 October 2015, and arrangements were made with Ms Cherry to meet with her on 14 October 2015 and have her execute the will. However, events overtook that arrangement. On

13 October 2015, Ms Cherry had a heart attack while in hospital receiving cancer treatment and died suddenly as a result.

[9] Mr McCall has since made inquiries by advertising in legal publications to ascertain whether any practitioner holds an existing will for Ms Cherry and has received no response to those advertisements. He has also made inquiries to confirm whether Ms Cherry had any children and the response from the Department of Internal Affairs was that she has not.

[10] Mr Tier provides affidavit evidence in support of the application where he explains that he was present when Ms Cherry gave Mr McCall her instructions. He said it was very apparent to him that Ms Cherry knew what she was doing and was aware of the significance of the will. She explained the reasons for making the will in its current terms, including that relationships with her deceased husband’s family were strained, so she did not wish to benefit them and that she had no children, brothers and sisters, or parents still alive.

Does the document appear to be a will?

[11] Clearly the draft will satisfies the requirements for a will in terms of s 8(1), in that it:

(a) is made by a natural person; and

(b) does any or all of the following:

(i) disposes of property to which the person is entitled when he or she dies; or

(ii) disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or

(iii) appoints a testamentary guardian.

[12] It was simply unfortunate timing which meant the draft was not executed so that it could be formally recognised as Ms Cherry’s will.

Does the document express the deceased’s testamentary intentions?

[13] Equally, in light of the circumstances in which the document was prepared, and the evidence given by Mr McCall and Mr Tier, I am satisfied that the document expresses the deceased’s testamentary intentions.

[14] Ms Cherry had, prior to meeting with her lawyer, made a list of key assets, and of her intentions as to their distribution under the will. The same intentions were clearly communicated to Mr McCall, and are reflected in the document which is sought to be validated as a will. In light of the strong and unequivocal evidence that the document expresses her testamentary wishes as communicated to her lawyer, I am satisfied this requirement is met.

Can the order be made on the papers

[15] All that remains is for me to be satisfied that it is appropriate to make the order without hearing from any other party.

[16] Given that Ms Cherry has:

(a) no known earlier will;

(b) no immediate relatives who could claim under the Family Protection

Act 1955; and

(c) advised her lawyer there was no-one in a position to claim under the

Law Reform (Testamentary Promises) Act 1949;¹ and

(d) I am satisfied the only persons potentially affected by an order validating the will are those persons named in the will as beneficiaries. These are Sarah Elizabeth Hay and James Michael Hay, her great niece and great nephew. They have consented to the application, as has their mother, Tracy Leanne Hay.

[17] Accordingly, I make the order sought and declare the document attached as Exhibit B to the affidavit of Jeffrey John McCall to be the valid will of the deceased, Janet Norma Chery.

Solicitors:

Papprills, Christchurch

1. And in any event such persons could exercise their rights to challenge the document once validated as a will.