Estate of Hodgetts [2022] NZHC 929 (4 May 2022)

Last Updated: 16 May 2022

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

CIV-2022-404-658 [2022] NZHC 929

IN THE ESTATE OF

MARK ANDREW HODGETTS, late of Kaiwaka, Deceased Applicant

Hearing:	On the papers
Appearances:	H K Gladwell for Applicant
Judgment:	4 May 2022

JUDGMENT OF LANG J

[on application for orders under s 14 of the Wills Act 2007]

This judgment was delivered by me on 4 May 2022 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:

Insight Legal, Warkworth

In the Estate of MARK ANDREW HODGETTS [2022] NZHC 929 [4 May 2022]

• [1] Mr Mark Andrew Hodgetts died on 29 August 2021. Just four weeks earlier, on 2 August 2021, he had consulted his solicitors about signing a new will. At that time he signed a document headed “Will Questionnaire”. This described the provisions he wished to be included in his will. Unfortunately, however, Mr Hodgetts died before signing a new will.

• [2] Mr Hodgetts’ partner, Ms Jennifer Anne Johnson, seeks an order under s 14 of the Wills Act 2007 (the Act) declaring the document that Mr Hodgetts signed on 2 August 2020 to be a valid will.

Background

• [3] Mr Hodgetts had signed an earlier will in 2001 in which he appointed his then wife, Mrs Catherine Hodgetts, as his executrix. He also left his entire estate to her. If she was to predecease him his entire estate was to pass to his surviving children in equal shares. As it transpired, the parties only had one child, Samuel Blake Hodgetts. Samuel is now 22 years of age.

• [4] Mr Hodgetts and his wife subsequently separated and their marriage was dissolved in 2012. As a result, s 19 of the Act rendered both his wife’s appointment as Mr Hodgetts’ executrix and the disposition of his estate to her void.

• [5] Mr Hodgetts began living with Ms Johnson in 2016. Their relationship subsisted until Mr Hodgetts’ death in August 2021. However, they never married or entered into a civil union. In the document headed “Will Questionnaire” Mr Hodgetts indicated that he wished to divide his estate equally between Ms Johnson and Samuel. However, the document does not contain a clause revoking Mr Hodgetts’ earlier will. If it is not declared a valid will under s 14 of the Act Samuel will therefore receive the whole of Mr Hodgetts’ estate. Ms Johnson will receive nothing. That would obviously not accord with Mr Hodgetts’ intentions as set out in the document he signed on 2 August. Furthermore, Samuel has now taken independent legal advice and accepts that his father’s estate should be divided equally between himself and Ms Johnson.

The law

• [6] Section 14 of the Wills Act provides as follows:

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] The principles to be applied in the present context are now well established. In short, the onus rests on the applicant to satisfy the Court on the balance of probabilities that the document propounded as the last will of the deceased reflects the testamentary intentions of the deceased.¹ The Court is entitled to take into account any evidence that may assist in determining whether the document expresses the testamentary intentions of the deceased.²

• [8] In undertaking the enquiry under s 14 the Court is required to focus on substance and intention rather than form. This is necessary to ensure that “a person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities.³

¹ Kirner v Falloon [2015] NZHC 1873, at [20].

² Re Campbell (deceased) [2014] NZHC 1632; [2014] 3 NZLR 706, at [15].

³ Re Estate of Wong [2014] NZHC 2554, at 24].

Decision

• [9] The handwritten document headed “Will Questionnaire” was plainly not intended to be Mr Hodgett’s last will and testament. Rather, it comprised instructions to his solicitors from which they could prepare a formal will for him to sign. However, I am satisfied that it set out Mr Hodgetts’ testamentary intentions as at 2 August 2020. There is no suggestion or evidence that he subsequently changed his mind in any respect over the next four weeks.

• [10] The document was also signed on each page by two witnesses but it does not comply with s 11(5) of the Act because it does not contain a statement that the witnesses were present with each other and Mr Hodgetts when all three signed the will. However, the two persons who witnessed Mr Hodgetts signing the document have confirmed in an affidavit filed in support of the present application that they were present with each other and Mr Hodgetts when he signed the document. The affidavit therefore cures this defect.

• [11] I am satisfied that the document headed “Will Questionnaire” reflects and expresses Mr Hodgetts’ testamentary intentions as at the date of his death. I therefore make an order under s 14 of the Act declaring the document to be a valid will.

Lang J