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High Court of New Zealand Decisions |
Last Updated: 13 March 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2017-404-002655
[2018] NZHC 230 |
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UNDER
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Sections 14 and 16 of the Wills Act 2007
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IN THE ESTATE
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of PETER JOHN ROBERT DRURY
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AND
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DENISE PATRICIA O’REILLY
Applicant
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Hearing:
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5 February 2018
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Counsel:
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J Strauss for Applicant
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Judgment:
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23 February 2018
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JUDGMENT OF DOWNS J
This judgment was delivered by me on Friday, 23 February 2018 at 11 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
North Harbour Law, Orewa. J Strauss, Auckland.
ESTATE OF DRURY [2018] NZHC 230 [23 February 2018]
The issue
[1] Mr Peter Drury, or Peter, died on 28 July 2017. His daughter, Ms Denise O’Reilly, seeks an order a document is Peter’s last will. The application, which is governed by the Wills Act 2007, is supported by Mr Stephen Drury, Peter’s son. A not unimportant question arises: is a digital document a “document”—and hence a will—under the Act?
Background
[2] The facts are uncontested.
[3] Mr Tony Edwards has been Peter’s solicitor for at least 25 years. In 1992 Mr Edwards prepared a will for Peter. All of Peter’s estate went to his wife if she survived him. But if she did not, his property was to be split equally between: a) the SPCA; and b) Denise and Stephen. The original of this will has been lost or destroyed, but nothing turns on this.
[4] In 2007 Peter instructed Mr Edwards to draft a new will. Peter’s estate was to be divided equally between his two children. By then, Peter’s wife had died. It follows no provision was made for the SPCA. It remains unclear if this will was executed.
[5] In 2011 Peter contacted Mr Edwards again with instructions to prepare a new will. This iteration divided Peter’s estate into three equal parts: one to Denise, one to Stephen, with the final part to be shared between Stephen’s two children. The will was not executed because Peter again changed his mind; he then wished to provide for all grandchildren.
[6] When Peter died, his son and daughter remembered he had told them he had prepared a “final request” document on his computer. They found it there. Materially, Peter was the only person to use the computer (at his home). An expert has examined the computer. The document was created on 20 February 2016 and last edited on 5 April 2016. Peter was home between these dates.
[7] As its name implies, the “final request” document sets out Peter’s wishes in relation to funeral arrangements. The document also contains Peter’s intentions in relation to his estate:
I wish the property to be sold and the money raised to be split as follows 40% to Denise Patricia O’Reilly, 40% to Stephen John Robert Drury, and the remaining 20% put in trust for my grand-children, to be used for their education in later life. This will be their money, and for education purposes.
...
[8] Peter’s intentions vis-à-vis the document are consistent with what he told others: in a meeting with his doctor, social worker, care worker and a hospice attendant, Peter said he did not want to go into private residential care as he wanted his son and daughter to get as much money out of the sale of his house as possible.
[9] Peter’s son and daughter seek an order the “final request” document is Peter’s will. The SPCA has been served with their application. It has chosen not to take part in the proceeding. It considers the matter private, and for resolution within the family.
Analysis
[10] The application is brought because the “final request” document was neither signed nor witnessed. Consequently, it is not a valid will in terms of s 7 of the Wills Act. Section 14 of that Act provides:
14 High Court may declare will valid
(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.
[11] I am satisfied the “final request” document expresses Peter’s testamentary intentions. As foreshadowed, the only question is whether the “final request” document is a document within s 14. To recapitulate, it was recovered in digital form from Peter’s computer.
[12] I consider a digital document is a “document”—and hence potentially a will— for six reasons. Some overlap.
[13] First, the definitions in the Wills Act and the Interpretation Act 1999 support this interpretation. Section 4 of the Wills Act defines a document this way: “document means any material on which there is writing”. The Wills Act does not define the terms “material” and “writing”. However, s 29 of the Interpretation Act defines “writing”: “writing means representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print)”. And, this definition was inserted by the Electronic Transactions Act 2002 to “facilitate the use of electronic technology”.1
[14] A digital document reproduces words in a visible form when viewed on a screen. Whether it does so in a tangible medium is, admittedly, less obvious. Tangible is not defined in either the Wills Act or the Interpretation Act, and ordinarily means capable of being touched. However, tangible is also defined more broadly as:
(a) “That [which] can be grasped by the mind or dealt with as a fact; definite, objective; substantial”.2
(b) “Definite; clearly intelligible; not elusive or visionary”.3
(c) “Capable of being possessed and realised”.4
1 Electronic Transactions Act, s 3.
[15] I consider a digital document does reproduce words in a visible form and tangible medium. While it cannot be touched in the same way as paper, it reproduces words that can be viewed—and even touched—with the medium of a screen. It would be odd in this age for words represented by ink to constitute writing but not words represented by pixels. And, a digital document has a physical presence on whatever medium it is stored (for example, a computer or USB drive).6
[16] Second, this interpretation is consistent with the purpose of the Wills Act. The explanatory note to the underlying bill records it was intended to “modernise the substantive law and remove certain anomalies”.7
[17] Third, this interpretation is consistent with the purpose of s 14 of that Act. Section 14 provides a mechanism for curial validation of documents that express the testamentary wishes of a deceased person.8 The provision, necessarily, emphasises substance over form.9
[18] Fourth, s 6 of the Interpretation Act provides an enactment applies to circumstances as they arise. The Wills Act must be interpreted in light of today’s technological conditions, the proliferation of digital documents and related reliance upon them by all members of society. As the Court of Appeal said in R v Misic:10
It is unarguable that a piece of papyrus containing information, a page of parchment with the same information, a copper plate or a tablet of clay, are all documents. Nor would they be otherwise if the method of notation were English, Morse code, or binary symbols. In every case there is a document because there is a material record of information. This feature, rather than the medium, is definitive.
The development of documents from handwritten notations on parchment to the inscription of inked type on paper is perhaps a greater extension of human technology than, say, the shift from recording on magnetic tape to the storage of information by a personal computer. ...
5 Merriam-Webster’s Dictionary (online ed, Merriam-Webster, accessed 21 February 2018).
6 Dixon v R [2015] NZSC 147, [2016] 1 NZLR 678 at [39].
7 Wills Bill 2006 (18-1) (explanatory note) at 1 (emphasis added).
8 Re Feron [2012] NZHC 44, [2012] 2 NZLR 551.
9 At [11].
10 R v Misic [2001] NZCA 128; [2001] 3 NZLR 1 (CA) at [32]–[33].
[19] The prevalence of digital documents has undoubtedly increased since R v Misic was decided in 2001. And many people now regard paper as the exception to the digital rule. The Act must be approached accordingly.
[20] Fifth, it would be absurd if the law treated the “final request” document as not a will simply because Peter did not print it before he died. The act of printing a file or an associated “omission” to do so should not be determinative.
[21] Sixth, this approach is consistent with other decisions in relation to s 14. In Re Feron, Whata J held notes and an email were documents.11 In Blackwell v Hollings, Kós J (as His Honour then was) declared a document “within the interstices of [Chambers J’s] associate’s computer” a valid will.12 In Pinker v Pinker, Thomas J held an email was a valid will.13
Conclusion
[22] The “final request” document is a valid will.
[23] Order accordingly.
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11 Re Feron, above n 8, at [15].
12 Blackwell v Hollings [2014] NZHC 667 at [1].
13 Pinker v Pinker [2015] NZHC 660, (2015) 30 FRNZ 174 at [9].
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