Estate of Day [2020] NZHC 2101 (19 August 2020)

Last Updated: 26 August 2020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-001067 [2020] NZHC 2101

UNDER	the Wills Act 2007
IN THE MATTER OF	the Estate of ANDREW WILLIAM DAY
BETWEEN	DION ANTHONY LOWE and TRACEY LOUISE LOWE Applicants
AND	the Estate of ANDREW WILLIAM DAY Respondent

Hearing:	19 August 2020
Appearances:	G D Stringer for the Applicants
Judgment:	19 August 2020

ORAL JUDGMENT OF CAMPBELL J

Solicitors/Counsel: Inder Lynch, Papakura

the Estate of ANDREW WILLIAM DAY (LOWE v DAY) [2020] NZHC 2101 [19 August 2020]

Introduction

• [1] Andrew Day, known as Andy, died in Auckland on 24 December 2019. A few months before his death Andy prepared an informal will. The applicants, Dion and Tracey Lowe, who were close friends of Andy, witnessed Andy signing the will.

• [2] In the will Andy said that if he died “I appoint Dion & Tracey Lowe the control of my assets, to be divided up as he sees fit between the following people ...”. Six people were then named. They included Dion and Tracey.

• [3] Dion and Tracey have applied for three orders in respect of the will:

(a) An order that the will be declared valid under s 14 of the Wills Act 2007. This order is sought on the assumption that the will is not already valid under s 11 of that Act.

(b) An order under s 13(2)(d) of the Wills Act allowing them to receive their dispositions under the will, despite having witnessed it.

(c) Grant of probate of the will to them as executors.

• [4] If the will is not valid, and not declared valid under s 14, Andy will be intestate. Andy’s mother, Judith Day, and his sister, Helen Day, would be beneficiaries of Andy’s estate on his intestacy. Judith and Helen have been served with the application. They have not taken any steps.

Background

• [5] Dion has made a detailed affidavit that addresses his long and close friendship with Andy, Andy’s relationship with his family, and the circumstances surrounding the making of the will. Tracey has made a shorter affidavit covering similar matters. Six other friends of Andy have made affidavits in support of the application. Those affidavits are all consistent with Dion’s and Tracey’s affidavits.

• [6] Given this affidavit evidence, and that there has been no opposition to the application, I can set out the background briefly.
• [7] Dion and Tracey were close friends of Andy for many years. Dion would sometimes lend money to Andy. Andy would always pay him back. Andy told Dion many times that he and Tracey would be in Andy’s will due to their lifelong friendship with and support for Andy.

• [8] On 5 September 2019 Dion loaned $20,000 to Andy. That evening Andy went to Dion and Tracey’s home for dinner. During that visit Andy said that it was time he wrote his will, as Dion and Tracey had done so much for him. He then, in Dion and Tracey’s presence, typed an email on his phone and sent it to Dion. The body of the email was as follows:

To whom it may concern,

Dion Lowe has loaned me $20,000 in cash on 05/09/2019. If anything should happen to me this debt is to be paid back to Dion Lowe from my company Precision Bathrooms, or in part payment from my personal bank account, and/or the sale of any assets.

If I am deceased I appoint Dion & Tracey Lowe the control of my assets, to be divided up as he sees fit between the following people.

Dion & Tracey Lowe [and four other people]

Kind regards Andy Day

• [9] Dion and Tracey read the email on Dion’s phone.

• [10] The next day, 6 September 2019, Andy again visited Dion and Tracey’s home. He brought a printed copy of the email. He asked Dion and Tracey to witness him signing the copy. Andy then signed the copy in Dion and Tracey’s presence. Dion and Tracey then signed the copy as well. They each added the date 5 September 2019 after their signatures, as that was the day that Andy had sent the email. Andy then handed the signed copy of the email to Dion, and asked him to keep it in a safe place.
• [11] The signed copy of the email is the document that Dion and Tracey say is Andy’s will. A copy of the document is marked “B” and attached to Dion’s affidavit. Dion and Tracey seek various orders in respect of it.

Procedural matters

• [12] The application was brought as an originating application. That is the required procedure for an application under s 14 of the Wills Act.¹ For an application under s 13, leave is required to proceed by way of originating application.² In this case it is appropriate for that application to be brought by way of originating application. I grant leave accordingly.

Is the will valid?

• [13] Dion and Tracey apply for the signed email to be validated under s 14 of the Wills Act.

• [14] Section 14 confers on the court power to declare an informal will valid. The section applies to a document that appears to be a will and that does not comply with s 11 of the Act.

• [15] Section 11 sets out the formal requirements for a valid will. A will must be in writing, it must be signed by or on behalf of the will-maker, and it must be signed by at least two witnesses.

• [16] The signed email is in writing, it was signed by Andy, and it was signed by two witnesses. It therefore appears to comply with s 11. But Mr Stringer, counsel for the applicants, raised a possible concern with whether the email was properly witnessed. To explain that concern, it is necessary to set out subs (3)–(6) of s 11:

11 Requirements for validity of wills

(3) The will-maker must—

(a) sign the document; or

¹ HCR 19.2(xa).

² HCR 19.5.

(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) As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:

(a) that he or she was present with the other witnesses when the will-maker—

(i) signed the document; or

(ii) acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or

(iii) directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

(iv) acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b) that he or she signed the document in the will-maker’s presence.

(6) No particular form of words is required for the purposes of subsection (5).

• [17] Mr Stringer noted that the signed email does not contain the attestation clause contemplated by s 11(5). At the same time, he drew my attention to Re Paul,³ in which

³ Re Paul [2012] NZHC 1657.

Whata J appeared to accept a submission that an attestation clause under s 11(5) is merely one way – but not the only way – of evidencing compliance with s 11 (4).⁴

• [18] As I understood it, the applicants sought an order under s 14 validating the signed email only out of an abundance of caution, in case I was of the view that the absence of an attestation clause meant the document did not comply with s 11.

• [19] An attestation clause is not required by s 11. Section 11(5) uses permissive language. The witnesses “may” use an attestation clause as evidence of compliance with s 11(4). But s 11(5) does not say that that is the only means of evidencing compliance. This is in contrast to an earlier version of s 11, which required the witnesses to “each state on the document, in the will-maker’s presence, that the witness was present when the will-maker complied with subsection (3)”. That requirement was abandoned when s 11 was amended by the Wills Amendment Act 2012.

• [20] For that reason, I conclude that the signed email is a valid will under s 11. I will make a declaration accordingly. An order validating the will under s 14 is not necessary.

Should Dion and Tracey be allowed to receive their dispositions under the will?

• [21] Section 13(1) of the Wills Act provides that a disposition of property in a will is void if it is made to a witness. Any disposition under the will to Dion or Tracey would therefore be void under s 13(1). But s 13(2)(d) provides that s 13(1) does not apply if:

the High Court is satisfied that the will-maker—

(i) knew and approved of the disposition; and

(ii) made the disposition voluntarily.

• [22] Based on the detailed and uncontested affidavit evidence, I am satisfied of these matters. Section 13(1) therefore does not apply to any disposition of property in Andy’s will that is made to Dion or Tracey.

⁴ Re Paul [2012] NZHC 1657 at [14]–[17].

Should probate of the will be granted to Dion and Tracey?

• [23] An application for grant of probate must be made under part 27 of the High Court Rules. It cannot be pursued on the present application. This application having determined that the signed email is valid under s 11, Dion and Tracey should now apply for grant of probate.

• [24] In his written submissions Mr Stringer also sought an order under s 31 of the Wills Act correcting the will. He said that the words in the will “to be divided up as he sees fit” should be corrected to “to be divided up as they see fit”. I am not persuaded that this is appropriate. In my view Andy intended that, although Dion and Tracey would be executors, only Dion would have the discretion as to how the assets would be divided up between the beneficiaries.

Result

• [25] I declare that the signed copy of the email dated 5 September 2019, a copy of which is marked “B” and attached to Dion’s affidavit, is a valid will under s 11 of the Wills Act 2007.

• [26] I order under s 13(2)(d) of the Wills Act 2007 that s 13(1) of that Act does not apply to any disposition of property in Andy’s will that is made to Dion or Tracey.

Campbell J