Estate of Leitch [2021] NZHC 1637 (2 July 2021)

Last Updated: 8 July 2021

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

CIV-2021-404-1196 [2021] NZHC 1637

UNDER	section 14 of the Wills Act 2007
IN THE MATTER	of the estate of GORDON COLIN LEITCH
BETWEEN	GRAHAM ELLENDEN LEITCH and NICOLAS JOHN LEITCH Applicants

Hearing:	On the papers
Counsel:	W M Patterson for the applicants
Date of judgment:	2 July 2021

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 2 July 2021 at 5.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

.............................. Registrar/Deputy Registrar

Solicitors:

Patterson Hopkins, Auckland

Re Estate of Leitch [2021] NZHC 1637 [2 July 2021]

• [1] Given the commonality of surname, meaning no disrespect, I refer to the parties by their first name.

• [2] As duty judge, I have Graham and Nicolas’ originating application without notice for orders under s 14 of the Wills Act 2007 seeking an order validating a 12 March 2019 document signed by Colin as a valid codicil to his will dated 28 May 2006. Colin died on 13 April 2020 at the age of 96 years. Graham and Nicolas are his sons and executors.

Without notice applications

• [3] Because I have the consent of all parties prospectively affected by the application, I am satisfied both requiring Graham and Nicolas to proceed on notice would cause undue delay to them, and the interests of justice then require the application to be determined without serving notice of it. I therefore determine the application can properly be dealt with without notice.¹ Given the application’s prospective effect on other than Graham and Nicolas, I cannot be satisfied the application affects only them (as the application proposes, to cross the without notice threshold).²

Background

• [4] The only will in evidence is that dated 28 May 2006. The 12 March 2019 document is Colin’s instruction to his solicitors (who also are solicitors for Graham and Nicolas on the present application) to amend his will to make priority provision for payment of his healthcare costs, and then to reallocate the remainder’s division in recognition of Graham’s and Nicolas’ “support and care for [him] over the last 16 years since [his wife] pass[ed] away”.

• [5] While hospitalised in March 2019, in Graham and Nicolas’ presence, Colin asked Graham’s wife, Diane, to prepare a draft instruction for his annotation and execution. She did so, and in later discussion with his sons and their wives, Colin annotated and signed both the annotations and the document on 12 March 2019.

¹ High Court Rules 2016, r 7.46(3)(a) and (e).

² Rule 7.46(3)(b).

Validation of wills

• [6] Section 14 of the Wills Act 2007 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.

• [7] Section 14 applies to the 12 March 2019 document, because it (a) is a document; (b) appears to be a will (or at least a codicil to a will, which is caught by the definition of will),³ in that it is made by a natural person and seeks to dispose of property to which the person is entitled when he dies;⁴ and (c) does not comply with s 11 (which relevantly requires the document to be signed and witnessed).

• [8] I may declare the document Colin’s valid codicil to his will if I am satisfied the document expresses his testamentary intentions. The discretion conferred by s 14 is residual only: good reason would be required to refuse an order if so satisfied.⁵ I am essentially to “evaluate the relevant circumstances and reach a conclusion”.⁶ I am to take “a robust approach”.⁷ In Re Campbell (deceased), MacKenzie J observed:⁸

The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, it is better that

³ Wills Act 2007, s 8(3)(e).

⁴ Section 8(1).

⁵ Balchin v Hall [2016] NZHC 837 at [11].

⁶ Re Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].

7. Watt v Owston-Doyle [2015] NZHC 1292 at [12], citing Re Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].

⁸ Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].

those intentions be given effect, in preference to the disposition of property which would take effect under any previous will, or on an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which would otherwise occur to take place. The preponderance of successful applications suggests that this Court recognises it as appropriate to give effect to the contents of the document in preference to the disposition, which the deceased person has, by the document, shown a wish should not apply.

Does the document express Colin’s testamentary intentions?

• [9] The evidence establishes the document is annotated as to relevant detail and initialled and signed in Colin’s handwriting, expressly “to make the following changes to [his] will”. The circumstances of its making confirm that intention and, moreover, afford rational grounds for being made, and reflect serious considerations expressed by Colin during his lifetime as to both the importance of the property and the appropriateness of its recipients.

• [10] However, on this application for validation of the document as Colin’s will, I am not required conclusively to interpret the document. All I am required to do is to be satisfied the document expresses Colin’s amended testamentary intentions,⁹ for disposition of his property.¹⁰ For the reasons I have expressed in the preceding paragraph, I am so satisfied.

Result

• [11] I declare the original of the document marked “B” annexed to the affidavits of each Diane Eula Leitch and Graham Ellenden Leitch sworn 2 June 2021 to be a valid codicil to the 28 May 2006 will of Gordon Colin Leitch.

Costs

• [12] With the consent of all prospectively affected parties, I direct the costs of and incidental to this application be met out of the residue of Colin’s estate.

—Jagose J

⁹ Wills Act, s 14(2).

¹⁰ Section 8(1)(b)(i).