Estate of McGaffin [2018] NZHC 2815 (31 October 2018)

Last Updated: 8 November 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1854 [2018] NZHC 2815

IN THE MATTER	of Section 14 The Wills Act 2007
IN THE MATTER	of the estate of MARGOT FIONA McGAFFIN also known as MARGARET FIONA McGAFFIN Deceased
AND	DAVID NEIL MURRAY Applicant

Hearing:	31 October 2018
Counsel:	J Armstrong for Applicant
Judgment:	31 October 2018

_{JUDGMENT OF BREWER J}

Solicitors:

Armstrong Murray (Auckland) for Applicant

ESTATE OF MF McGAFFIN – APPLICATION BY DAVID NEIL MURRAY [2018] NZHC 2815 [31 October

2018]

[1] David Neil Murray of Auckland, solicitor, applies by way of originating application for an order declaring a document to be a valid Will.

[2] The testatrix, Ms MF McGaffin, died at Auckland on or about 17 February

2018. Mr Murray was her solicitor.

[3] In his affidavit, Mr Murray describes how in or around November 2015 he received Ms McGaffin’s instructions to prepare a new Will for her to replace her existing Will which had been executed on 6 July 1986. Mr Murray prepared a draft in accordance with Ms McGaffin’s instructions and sent it to her by post on 14 October

2016. I infer Mr Murray did not consider the matter to be urgent.

[4] The affidavit of Marlene Ofsoski deposes that in May 2017 Ms McGaffin

asked her to witness the signing of her Will. Ms Ofsoski did so. The document signed by Ms McGaffin and witnessed by Ms Ofsoski was the draft Will posted to

Ms McGaffin on 14 October 2016 by Mr Murray.

[5] Mr Murray deposes that he visited Ms McGaffin on 16 October 2017 on other legal business. Ms McGaffin gave Mr Murray the draft Will which had been signed by her and witnessed by Ms Ofsoski. Mr Murray pointed out it was only a draft, that it was undated, and that since there was only one witness it was not validly executed. In any event, Ms McGaffin expressed the wish for the draft to be amended further so as to remove one of the executors. The reason was that the executor to be removed (Ms Harris) lived in Wellington and Ms McGaffin had decided it would be an imposition for Ms Harris to be appointed an executor. Only Mr Murray was to be executor.

[6] Mr Murray sent an amended Will to reflect this change in Ms McGaffin’s instructions. He posted the document to Ms McGaffin on 22 December 2017. On or about 13 February 2018, Mr Murray received a telephone call from Ms McGaffin who confirmed that the Will was satisfactory to her in all respects. Mr Murray made an appointment to attend on Ms McGaffin on Monday, 19 February 2018 at 2:00 pm for her to execute the Will. Sadly, Ms McGaffin died on the Saturday immediately preceding the appointment.

[7] Mr Murray makes the application in his capacity as the sole executor named in the Will which Ms McGaffin intended to sign at the appointment made for 19 February

2018.

[8] I come now to the differences between the Will which is the subject of this originating application and the earlier Will which was executed on 6 July 1986.

[9] The earlier Will named the deceased’s life partner, Mr Tom Fong, as sole executor and beneficiary so long as he survived Ms McGaffin. If he did not survive her, then Ms McGaffin’s brothers and sisters would inherit in equal shares, or their children per stirpes if a sibling pre-deceased Ms McGaffin.

[10] At the time Ms McGaffin instructed Mr Murray to prepare a new Will, Mr Fong had been diagnosed with dementia. Mr Murray deposes that Mr Fong’s affairs had been, in part, separated from those of Ms McGaffin. In particular, their home was now owned by them as tenants in common in equal shares. Three of Ms McGaffin’s brothers and sisters had died.

[11] The effect of the new Will was to remove Mr Fong as a beneficiary and for

Ms McGaffin’s estate to go to her siblings or, if they were deceased, their children (if any) per stirpes.

[12] On 30 August 2018, I ordered service of the originating application and associated documents on potential beneficiaries. I also ordered service on the joint court appointed property managers for Mr Fong, he being mentally incapable. All persons have been served and proof of service is on the file. No steps have been taken to oppose the application, and in all cases the 10 working days period provided for in r 7.24 has expired.

[13] However, Mr Fong died on 11 October 2018. The executors of his estate are

Mr Murray and Mr Tom Fong’s brother, Mr Roy Fong. Counsel for Mr Murray has filed a document signed by Mr Murray and Mr Roy Fong as the executors under the Will of Mr Tom Fong confirming they will take no steps in relation to the originating application.

[14] Section 11 of the Wills Act 2007 sets out the requirements for Wills to be valid. The Will which Ms McGaffin intended to sign cannot, of course, be a valid Will in terms of s 11. It is unexecuted. However, s 14 empowers the Court to make an order declaring a document to be a valid Will if it is satisfied that the document expresses the deceased person’s testamentary intentions.

[15] On the narrative I have set out above, I am satisfied that the document which is the subject of the originating application expresses Ms McGaffin’s testamentary intentions. I grant the application. I make an order declaring the unsigned Will of the late Ms McGaffin to be her final Will. I direct payment of the costs of this application to be met by the estate of the late Ms McGaffin.

Brewer J