Estate of Davis [2017] NZHC 1541 (5 July 2017)

Last Updated: 18 July 2017

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2017-476-000036 [2017] NZHC 1541

IN THE MATTER OF	THE WILLS ACT 2007
and
IN THE MATTER OF	AN APPLICATION BY VINCENT STEPHEN DAVIS OF WAIMATE DECLARING A DOCUMENT TO BE THE VALID WILL OF DANIEL ALBERT DAVIS (DECEASED)

Hearing:	5 July 2017 (On the papers)
Appearances:	G J A Proudfoot for the Applicant
Judgment:	5 July 2017

_{JUDGMENT OF DUNNINGHAM J}

[1] The applicant, Vincent Stephen Davis, has filed an originating application, without notice, for order declaring a document to be a valid will.

[2] The document in question is annexed to the applicant’s affidavit, filed in support of the application, as Exhibit A. It is a document entitled Will of Daniel Albert Davis and sets out, in conventional form, the testamentary intentions of the deceased, Daniel Albert Davis. However, it is only witnessed by one person, a Justice of the Peace, and therefore does not meet the requirements of s 11 of the Wills Act 2007 which requires a valid will to be a document that is signed in the

_{presence of two persons.}

ESTATE OF DANIEL ALBERT DAVIS [2017] NZHC 1541 [5 July 2017]

[3] The document in question appoints the applicant, the deceased’s son, to be the executor and trustee of the purported will. It also leaves specific bequests to two identified friends of the deceased and bequests certain chattels to the applicant, with the balance of the estate, after payment of debts, funeral expenses, administration expenses, taxes and gifts, to be divided equally between the deceased’s six children or, if any of them should die before him, then equally among the remaining children.

[4] The Justice of the Peace who witnessed the signature of the deceased confirms he signed the document, although he cannot recall the precise date. He also confirms that the deceased expressed a wish to finalise his will prior to going into hospital for a heart operation so that he “knew his affairs were in order”.

The Wills Act 2007

[5] Section 14 of the Wills Act 2007 (the Act) provides::

(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.

[6] In this case I am satisfied that the will was executed after 1 November 2007 (when the Act came into force), taking into account the contents of the affidavit of

Charles Williams Kesteven Saxton filed in support of the application, and that it came into existence in New Zealand as required by s 14(1)(c).

[7] As already explained, the document does not meet the requirement of s 11 of the Wills Act 2007, in that it was not signed in the presence of two witnesses.

[8] The document does appear to be a will, both in form, and because it clearly expresses the deceased’s testamentary intentions. Furthermore, I note it is similar in terms to an earlier valid will executed on 24 February 2010. I am satisfied, therefore, that all the requirements of s 14 of the Wills Act 2007 are made out, and I have jurisdiction to make an order declaring it a valid will under s 14(2).

[9] The next issue is whether the application should be dealt with on a without notice basis. In this case, all the beneficiaries of the document proposed to be validated as a will have provided their written consent to such an order being made. Those persons were also all beneficiaries of the earlier will. The only other beneficiary of the earlier will is the de facto partner of the deceased, Lynda Marie Grant. However, the affidavit evidence confirms that she predeceased the deceased, having died at Oamaru between 29 and 30 June 2014, and this is confirmed with provision of a certified copy of her death certificate. There was no subsequent wife or de facto partner.

[10] The affidavit evidence also confirms that enquiries have been made as to whether there exists a parent or child of the deceased, in addition to those already known to the applicant, who could claim an interest in the estate. Those enquiries included those required by s 5A(2) of the Status of Children Act 1969 and no record of a parent or child was discovered.

[11] In all these circumstances I am satisfied that all persons who may be potentially affected by the granting of the order have consented to the application, and it is appropriate to grant the application.

[12] Accordingly, I order:

(a) leave is granted for this application to be made without notice to any other person;

(b) the document dated March 2015, a copy of which is marked ‘A’ and attached to the affidavit of Vincent Stephen Davis filed in support of this application, is declared valid as the last will of the deceased, Daniel Albert Davis of Moeraki.

Solicitors:

Timpany Walton, Timaru