Estate of Latham [2021] NZHC 1439 (17 June 2021)

Last Updated: 2 July 2021

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-284 [2021] NZHC 1439

IN THE MATTER OF	Section 14 of the Wills Act 2007
IN THE MATTER OF	an application by COLIN ASHTON LATHAM of Awakeri, Retired, for an order that a document be declared a valid codicil of the deceased JOAN LENETTE LATHAM, formerly of Whakatāne but latterly of Awakeri, Married Woman

Hearing:	[On the Papers]
Appearances:	C A Gentleman for Applicant
Judgment:	17 June 2021

JUDGMENT OF GAULT J

This judgment was delivered by me on 17 June 2021 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

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

Solicitors: Gowing and Co Lawyers Ltd, Whakatane

RE ESTATE OF LATHAM [2021] NZHC 1439 [17 June 2021]

• [1] Mr Colin Latham applies by originating application without notice dated 24 May 2021 for leave to make the application on a without notice basis (the preliminary application) and for an order declaring an undated document to be a valid codicil to the will of his late wife, Mrs Joan Lenette Latham, dated 14 August 2009 (the substantive application).

The evidence

• [2] Mr Latham’s affidavit in support states that Mrs Latham executed a will on 14 August 2009. On its face, that will was signed by Mrs Latham and witnessed in the manner contemplated by s 11 of the Wills Act 2007 (the Act).

• [3] By that will, Mrs Latham appointed her husband executor and trustee of her estate. She bequeathed any cash she had on bank term deposit to one of her granddaughters, Georgia, to be managed by her trustee until the granddaughter turned 20, and the remainder of her estate to her husband.

• [4] Mr and Mrs Latham subsequently purchased a property in Cambridge. By a codicil to her will dated 25 August 2016, Mrs Latham amended the provision to her granddaughter to apply to “my ANZ Term Deposit and ANZ On Line Account”, and to provide that the funds were to be administered by her trustee for Georgia’s “welfare, education, and future investment”. She also bequeathed her shares in Xero to her daughter Catherine and a half share in the Cambridge property to her daughter Janice.

• [5] On 28 January 2021, Mr and Mrs Latham attended an appointment with an oncologist. Mrs Latham was diagnosed with pancreatic cancer and advised she only had between two and four months to live.

• [6] In the car on the way home from the oncologist, Mr Latham says that his wife told him she intended to go to their lawyer to change her will before she died so as to make provision for her sister, Ms Weir, and amend how Georgia would receive her bequest. Mr Latham said he handwrote the intended changes on their return home that afternoon.

• [7] Unfortunately, Mrs Latham’s condition deteriorated even more quickly than anticipated.
• [8] Mr Latham says that on 8 February 2021 he had a conversation with his wife about amending her will. She advised him she intended to make a further codicil to the will, revoking the first codicil dated 25 August 2016.

• [9] On 9 February 2021, Mrs Latham was admitted to hospital for palliative care.

• [10] On 12 February 2021, Mrs Latham discussed the codicil again with Mr Latham, this time in the presence of their daughter Janice. He read her the 28 January handwritten notes and she confirmed she wanted him to type the codicil, which he did at home that night. She said she would sign the document the following day.

• [11] However, the following day, Mrs Latham lost consciousness. She was therefore unable to sign the document, as required by s 11 of the Act. Mr Latham says that, at that stage, he made some handwritten notes on the unsigned codicil recording the dates she had discussed the codicil with him. A copy of that document is annexed to his affidavit.

• [12] Mrs Latham never regained consciousness. She passed away on 16 February 2021.

• [13] Mr Latham says he believes that Mrs Latham intended this codicil to be valid and that, if she had regained consciousness, she certainly would have signed it.

• [14] I note that the unsigned codicil states that Mrs Latham deletes her first codicil and amends certain clauses of her will. The effect of the codicil would be that:

(a) cash held on bank term deposit would be bequeathed to Mr Latham to be held by him for Georgia’s ongoing support including education and future investments;

(b) except that $10,000 from the term deposit would be bequeathed to Mrs Latham’s sister;

(c) Janice would still succeed to Mrs Latham’s half share in the Cambridge property;

(d) Catherine would no longer receive any Xero shares; and

(e) Mr Latham would receive the remainder of the estate (including any ANZ On-Line Account and any Xero shares).

• [15] Besides Mr Latham himself, the persons with an interest in the earlier will and first codicil – which, unless the present application is granted, comprise Mrs Latham’s will – are daughters Catherine and Janice and granddaughter Georgia. Attached to the affidavit are signed and witnessed statements by Catherine, Janice, and Georgia consenting to the making of the orders sought, and stating that they have been advised of their ability to seek independent legal advice and have decided not to seek such advice, and that they understand the effect of the proposed order.

• [16] For completeness, Mr Latham also addresses the position on intestacy and says that he has made inquiries of the Ministry of Internal Affairs, pursuant to the Status of Children Act 1969, as to the existence of any child of the deceased in addition to those stated above who could claim an interest in the estate on any intestacy. He has been advised by the Registrar-General of Births, Deaths, Marriages, and Citizenship that there is no record of any such person.

The preliminary application

• [17] As the substantive application is made pursuant to s 14 of the Act, it must be made by way of originating application,¹ as has occurred here. Originating applications may be made without notice where a ground in r 7.23(2)(a) of the High Court Rules 2016 applies,² and when all reasonable inquiries have been made and steps taken to ensure the application contains all relevant material.³

• [18] Here, the applicant relies on the grounds that requiring the application to proceed on notice would result in undue delay and prejudice, that an enactment permits

¹ High Court Rules 2016, r 19.2(xa).

² High Court Rules 2016, r 19.10(1)(e).

³ Rule 7.23(2)(b).

the application to be made without notice, and that the interests of justice require the application to be determined without notice.

• [19] Under r 7.46, the Court must determine whether the application can properly be dealt with without notice.⁴ This requires, essentially, that the Court be satisfied one or more of the grounds set out in r 7.23(2)(a) exist.⁵ In Re the Estate of Campbell,⁶ the decision on which Mr Latham relies, MacKenzie J found that to be the case in circumstances where, as here, all persons who would be affected by the making of a without notice order under s 14 of the Act were aware of and had consented to the making of the order.⁷

• [20] I am satisfied that the interests of justice require the application be determined without notice given the consent of the only persons who have an interest in the will if the codicil is not declared valid. (The evidence does not positively confirm Georgia’s age, but even if she is still a minor her mother has also consented.) In those circumstances, unnecessary cost and delay would occur for no gain if the applicant were required to proceed on notice.⁸ Leave to make the originating application without notice should be granted.

The substantive application

• [21] Section 14 of the 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.

4. Rule 7.46(2). I note for completeness that r 7.46 is applied to originating applications by r 19.10(1)(n).

⁵ Rule 7.46(3).

⁶ Re the Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706.

⁷ At [3].

⁸ High Court Rules 2016, rr 7.46(3)(a) and (e).

(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.

• [22] In the Act, a “will” includes a codicil to a will.⁹

• [23] As Ms Gentleman, counsel for Mr Latham, submits, the applicant must satisfy the Court that the criteria in s 14(1) apply, and having done so, the Court must then be satisfied that the document expresses the deceased’s testamentary intentions before declaring the will valid.

• [24] I accept Ms Gentleman’s submission that the threshold requirements in s 14(1) are satisfied. The document has the appearance of a codicil in format and in content. It does not comply with s 11 of the Act because it has not been signed by Mrs Latham. Mr Latham said he typed the document at home, so it came into existence in New Zealand.

• [25] I turn then to whether the Court, addressing the matters set out in s 14(3), should exercise the jurisdiction under s 14(2).

• [26] The Court’s approach to this question was summarised by Mander J in Caird v Caird:¹⁰

• [39] This Court has remarked that a person who in good faith sets out to express his or her testamentary intentions should not have those intentions thwarted by technicalities, and that the Court should endeavour to give effect to the deceased person’s intentions.^[11] Where there is evidence of the person’s testamentary intentions, it is better that they be given effect, in preference to the disposition of property which would take effect under any previous will, or in the situation of intestacy.^[12]

• [40] The existence of the document will of itself be an indication that the deceased person did not wish the disposition which would otherwise occur to

⁹ Wills Act 2007, s 8(3)(e).

¹⁰ Caird v Caird [2018] NZHC 1605.

¹¹ Re the Estate of Wong [2014] NZHC 2554 at [24].

¹² Re the Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].

take place.^[13] However, it must be established on the balance of probabilities that the evidence as a whole, including evidence of the will-maker’s statements and testamentary intentions, that the document expresses that person’s intentions.^[14] The test is not an objective one. It is specific to the particular deceased person and no two cases will necessarily be the same.^[15] Any evidence which may assist to determine that question may be taken into account.^[16]

• [27] Ms Gentleman submits Mr Latham’s affidavit evidence establishes a clear course of conduct by Mrs Latham after learning of the seriousness of her illness. She discussed with her husband the preparation of a new will. She outlined her wishes to her husband. She then decided to make a codicil given the rapid progression of her illness. She then confirmed her husband’s notes for the intended codicil while in hospital. There is evidence that the deceased wish to sign the document as a codicil to her will.

• [28] I am satisfied that the document expresses Mrs Latham’s testamentary intentions. First, I accept Mr Latham’s evidence as to the sequence of events. That sequence indicates Mrs Latham’s testamentary intentions had changed from those stated in the will and first codicil. On 12 February 2021, Mrs Latham wanted Mr Latham to draw up a codicil for her to sign the following day.

• [29] Secondly, I also accept that Mr Latham drew up the document based on his understanding of his wife’s testamentary intentions as they had discussed.¹⁷ Janice was present on 12 February 2021 and her consent provides some confirmation of his understanding. While I put to one side Mr Latham’s belief his wife intended that this codicil be valid and that, if she had regained consciousness, she would have signed it, the direct evidence satisfies me as to her testamentary intentions. Given the further conversation they had on 12 February 2021, I accept the document Mr Latham drew up accurately recorded Mrs Latham’s wishes. That is consistent with the handwritten notes he made on the document the day she lost consciousness.

• [30] Thirdly, there is no reason to doubt that her testamentary intentions changed between the conversation on 12 February and her losing consciousness the following

¹³ At [18].

¹⁴ At [16]. Re the Estate of Wong [2014] NZHC 2554 at [24].

¹⁵ Re the Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [16].

¹⁶ At [15] and [17].

¹⁷ Mr Latham did not purport to give hearsay evidence of his wife’s statements on 12 February 2021.

day. This is quite different from a case in which a significant interval elapsed between the making of an unsigned instrument and the date of death, where a question arises from the delay as to whether the intention conveyed in the unsigned instrument remained operative.¹⁸

• [31] Finally, there is no good reason to refuse to exercise the residual discretion to declare the unsigned codicil valid under s 14.¹⁹

Result

• [32] I grant leave to make the originating application without notice.

• [33] Pursuant to s 14(2) of the Wills Act 2007, I make an order declaring the document marked C, a copy of which is exhibited to the affidavit of Colin Ashton Latham dated 11 May 2021, to be a valid codicil of Mrs Joan Lenette Latham.

Gault J

¹⁸ Compare, for example, Re Estate of Mitchell [2020] NZHC 2379; Amundson v Ross [2015] NZHC 2422, [2015] NZAR 1772 at [24] and [28].

¹⁹ As to the existence and exercise of the residual discretion, see Balchin v Hall [2016] NZHC 837 at [11]; Caird v Caird [2018] NZHC 1605 at [78]; Holman v Oakley [2020] NZHC 2103 at [33]; and Re Estate of Mitchell [2020] NZHC 2379 at [10].