Estate of McCarthy [2019] NZHC 845 (16 April 2019)

Last Updated: 8 May 2019

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-28 [2019] NZHC 845

UNDER	the Wills Act 2007
IN THE MATTER	of an Application for Order Declaring document to be a valid Will
IN THE ESTATE	of VALERIE LYNN MCCARTHY Deceased

On the papers
Appearances:	PJ Smith for Applicants
Judgment:	16 April 2019

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 16 April 2019 at 3.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Estate of V L MCCARTHY v [2019] NZHC 845 [16 April 2019]

Background

[1] Valerie Lynn McCarthy died at Auckland on or about 16 January 2019.

[2] On 27 September 2016, Ms McCarthy attended the offices of Kelly Flavell Law Ltd (Kelly Flavell) to execute a will. Present to assist Ms McCarthy were Andrew Lin, one of Kelly Flavell’s staff solicitors, and Joy May Sorensen, a receptionist and legal assistant. Mr Lin and Ms Sorensen had earlier helped Ms McCarthy in drafting her will (the Will). In that document, Ms McCarthy sought to:

(a) Appoint her stepson, Martin McCarthy (Martin), and her daughter, Norma Ann Lee (Norma), as executors and trustees of the Will;

(b) Gift her son, Ian Jeffrey Lee, the sum of $5,000 as a gesture of goodwill; and

(c) Divide the balance of her estate into six equal shares to be held on trust for the following persons:

(i) Her stepdaughter, Penny Jablonski;

(ii) Martin;

(iii) Her stepdaughter, Mandy Underdown;

(iv) Norma;

(v) Her daughter, Melanie Patricia Lee; and

(vi) Her son, Matthew Robert Lee.

[3] Norma and Martin were given broad powers as trustees to manage the affairs of the six trusts.

Validity

[4] The requirements for a valid will are prescribed by s 11 of the Wills Act 2007 (the Act). It provides, so far as is relevant:

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] Mr Lin witnessed Ms McCarthy’s signing of the Will. He initialled the first two pages and signed as one of the witnesses on the last, attestation page while Ms McCarthy and Ms Sorensen were present.

[6] Ms Sorensen also sought to record her witnessing Ms McCarthy’s signing of the Will. She initialled the first two pages of the document, but her signature does not appear on the attestation page. In an affidavit dated 3 April 2019, Ms Sorensen deposes that this was an inadvertent omission on her part. She also deposes that
Ms McCarthy and Mr Lin were in the room when she initialled the first two pages. I accept Ms Sorensen’s evidence; there is no other logical explanation for why she did not sign the last page.

The application

[7] Norma has sworn an affidavit deposing that she intends to apply for probate of her mother’s Will. However, because of Ms Sorensen’s omission, Ms McCarthy’s purported Will is not valid for the purposes of s 11(4)(b) of the Wills Act 2007 (the Act).

[8] Norma and Martin have applied to the Court to declare as a valid will the document prepared by Mr Lin and Ms Sorensen and signed by Ms McCarthy on 27 September 2016. They do so pursuant to s 14 of the Act. That section 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.

Discussion

[9] As this Court said in Pfaender v Gregory:¹

[27] ...on being satisfied that a document appears to be a will but does not comply with the requirements for validity of s 11, and being satisfied that on the balance of probabilities the document expresses the deceased person’s testamentary intentions, this Court may make an order declaring the document to be a valid will. The discretion conferred by s 14 is of a residual nature. Where the Court is satisfied that the document in question represents the genuine intentions of the deceased, an order should be made to prevent the established wishes of the deceased being disregarded unless good reasons not to do so exist.

(Citations omitted)

[10] The requirement that a document appears to be a will is concerned with the content of the document rather than its form; the essential inquiry is whether the document does any or all of the things described in the definition of the word “will” in s 8 of the Act.²

[11] It is clear that Ms McCarthy and the witnesses who attended on her on 27 September 2016 intended that she would execute a valid will. The document purports to dispose of Ms McCarthy’s property upon her death according to her testamentary intentions,³ but it does not meet the formal requirements of s 11 of the Act. The non-observance of the statutory requirements was minor and inadvertent. An order validating the Will should be made under s 14.

[12] I am also satisfied that it is appropriate for this proceeding to be commenced by way of originating application and that there is no need for any party to be served.

1. Pfaender v Gregory [2018] NZHC 161, [2018] NZAR 375; see also Balchin v Hall [2016] NZHC 837 at [11].

² Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].

³ Wills Act 2007, s 8(1)(b)(i).

Orders

[13] Accordingly, I make the following orders:

(a) The Court permits the bringing of the application by way of originating application.

(b) Service of the application shall be dispensed with.

(c) The Court declares that the document dated 27 September 2016 that is purported to be the will of the late Valerie Lynn McCarthy, a copy of which shall be annexed to the Order, is a valid will under the Wills Act 2007.

..............................

Toogood J