Estate of Land [2022] NZHC 2434 (22 September 2022)

Last Updated: 5 October 2022

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

CIV-2022-404-1776 [2022] NZHC 2434

IN THE MATTER AND	of an application by TREVOR ARTHUR LAND and SUSAN MARY BOYD for an order that a document be declared a valid Will under Section 14 of the Wills Act 2007
IN THE MATTER	of the estate of JOCELYN MARY LAND

Hearing:	On the papers
Counsel:	S Rahimi for the Applicants
Judgment:	22 September 2022

JUDGMENT OF GORDON J

This judgment was delivered by me

On 22 September 2022 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

Inder Lynch, Papakura, Auckland

Re Estate of Jocelyn Land [2022] NZHC 2434 [22 September 2022]

• [1] This is an application without notice for an order declaring a document to be a valid will pursuant to s 14 of the Wills Act 2007 (the Act).

• [2] The document concerned is in the format of a will but is neither dated nor signed. The applicants have used the term “the new will” to describe that document. I will adopt that term in this judgment.

• [3] The applicants, Trevor Land and Susan Boyd, are the two children of the deceased, Jocelyn Mary Land. Mr Land and Ms Boyd are the executors and trustees of the new will and beneficiaries under the new will. Mr Land and Ms Boyd have sworn affidavits in support of the application which seeks orders:

(a) granting leave for the application to be made without notice to any other person; and

(b) that the new will be declared valid as the last will of Mrs Land.

• [4] There is also an affidavit from a solicitor, Janelle Danielson, who was formerly a solicitor at the law firm Inder Lynch, and who was involved in taking instructions from Mrs Land for and drafting the new will. Ms Danielson’s evidence regarding instructions for the preparation of the new will is consistent with the evidence of Mr Land and, to the extent that she was aware of those instructions, Ms Boyd.

Background

• [5] Mrs Land died on or about 7 March 2022.

• [6] On or about 15 April 2021 Mrs Land met with Ms Danielson to provide will instructions to her. Mr Land brought his mother to the offices of Inder Lynch for that purpose and remained in the lobby while Ms Danielson met with Mrs Land and took her instructions. During the meeting Mrs Land instructed Ms Danielson that she wished to receive correspondence from Inder Lynch via email and asked that Mr Land be included in any correspondence regarding the new will.
• [7] On 12 May 2021 the first draft of Mrs Land’s new will was emailed to Mrs Land’s personal email address for review and approval. On 12 July 2021 Ms Danielson received an email from Mr Land stating that his mother had reviewed the draft will and wanted an amendment made to a particular clause. On 22 July 2021 Ms Danielson emailed the amended draft new will to Mrs Land for her review and approval. On 16 August 2021 Ms Danielson received a message from Mr Land advising that Mrs Land had approved her new will and requested an appointment for Mrs Land to attend the offices of Inder Lynch on 18 August 2021 to sign the new will.

• [8] On 18 August 2021 New Zealand had entered COVID-19 Alert Level 4 lockdown and the appointment was cancelled until further notice. That appointment was rescheduled several times due to the COVID-19 alert level restrictions and the “traffic light” setting in Auckland. Mr Land says he continued to liaise with Ms Danielson and endeavoured to arrange an appointment. There was an appointment scheduled for 14 February 2022. However, Mrs Land was living at a retirement village at that time and the village had strict COVID-19 restrictions in place which meant that Mrs Land was unable to leave the village.

• [9] Ms Danielson suggested that she might attend on Mrs Land at the village to enable Mrs Land to sign the will. However, under the rules at the village at that time, this was not possible.

• [10] On 11 February 2022 Mr Land emailed Ms Danielson stating that he would get back to her in relation to the signing of the new will once the COVID-19 restrictions eased in the community.

• [11] Mrs Land, unfortunately, died shortly after that on or about 7 March 2022.

Previous will

• [12] Mrs Land executed a previous will on 21 July 2016 (2016 will). The executors and trustees of the 2016 will are Mr Land and Ms Boyd along with Mrs Land’s husband, George Land. Although neither Mr Land nor Ms Boyd expressly states in their affidavits that Mr George Land, their father, is deceased, in the new will Mrs Land expresses a wish that she be buried “with my late husband”.
• [13] Mr Land and Ms Boyd are beneficiaries under both the 2016 will and the new will. The two other beneficiaries in the 2016 will are Nena Morgan, who is Mrs Land’s granddaughter and Megan Land, who is Mrs Land’s daughter-in-law. Nena Morgan and Megan Land are also beneficiaries under the new will. Additional beneficiaries under the new will are Mrs Land’s three grandsons.

• [14] Both Nena Morgan and Megan Land have signed consents to an order being made declaring the new will a valid will.

Statutory provisions

• [15] 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.

• [16] The new will does not comply with s 11. It is in writing but it is not signed, dated or witnessed. However, it appears to be a will. It is drafted in a format similar to the 2016 will, which had also been prepared by Inder Lynch. Both the 2016 will and the new will bear the name of that law firm.

• [17] The evidence establishes that the new will came into existence in New Zealand.
• [18] In her affidavit Ms Danielson says that she believes that the draft will (ie the new will) that Mrs Land approved, reflects her last testament and wishes. Ms Danielson further says that she believes if it were not for the appointments being deferred due to COVID-19, “Mrs Land would have attended our offices and signed the new will as it was drafted”. That evidence is consistent with the evidence of Mr Land and Ms Boyd that Mrs Land wished to make an appointment to sign the new will. The evidence satisfies me as to Mrs Land’s testamentary intentions and that such intentions were expressed in the new will.

• [19] I am also satisfied that notice of this application need not be given to any other person. The beneficiaries under the 2016 will are either the applicants in this proceeding or have given their consent to the orders applied for being made.

Orders

• [20] I make the following orders:

(a) I grant leave for this application to be made without notice to any other person; and

(b) The undated document (the new will) a copy of which is annexed to the affidavit of the applicant, Trevor Arthur Land and marked “A” and referred to in the affidavit of the other applicant, Susan Mary Boyd, filed in support of the application, is declared as the last will of the deceased, Jocelyn Mary Land.

Gordon J