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High Court of New Zealand Decisions |
Last Updated: 14 August 2023
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2023-404-000455
[2023] NZHC 1669 |
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UNDER
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Part 19 lf the High Court Rules and sections 14 and 15 of the Wills Act
2007
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IN THE MATTER OF
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The Estate of DECLAN KRIS CURRAN
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BETWEEN
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JUDITH IRENE SELLIN AND JOANNE CURRAN
Plaintiffs
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AND
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The person(s) named in the Schedule hereto as being served with the
proceeding as directed by the Court
Defendants
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Hearing:
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On the papers
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Counsel:
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J L Thomas for Plaintiffs
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Judgment:
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30 June 2023
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JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 30 June 2023 at 3pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Schnauer & Co, Auckland
ESTATE OF DECLAN CURRAN [2023] NZHC 1669 [30 June 2023]
Introduction
[1] Declan Kris Curran (the testator) died at Auckland on or about 6 September 2022. At the date of his death he was 58 years old.1 Judith Sellin and Joanne Curran (the plaintiffs) apply as executors for a declaration pursuant to s 14(2) of the Wills Act 2007 (the Act) that certain documents comprise his valid last will and testament.
Background
[2] The testator died at his home in Auckland, and his death was discovered on 8 September 2022. He lived at the address alone, although a separate part of his house was tenanted.
[3] One of the plaintiffs, Ms Joanne Curran, is the deceased’s sister. On the day that her brother’s death was discovered, Ms Curran and her partner located a blue coloured document pouch in a bedroom of the testator’s house. The blue pouch contained a number of documents including a Will (the Will). The printed Will document has provision for the testator to make handwritten entries in order to create a tailored testamentary document. The printed and handwritten document is headed:
Will for a SINGLE PERSON
THIS IS THE LAST WILL AND TESTAMENT OF
DECLAN KRIS CURRAN
DATED September 14 2015
[4] The Will contains a series of handwritten entries by which the deceased has set out the details of his name, and the names of the executors and trustees of his Will, with provision for an alternate in the event that any of the named executors and trustees either dies or is unwilling or unable to act as his executor and trustees. The testator appointed his parents Peter Joseph Curran and Fay Curran2 together with the plaintiff Judith Sellin as his executors and trustees, and with the plaintiff, Joanne Curran, named as the substitute executor and trustee. The testator’s parents have renounced
1 He was born on 15 September 1963.
their appointment, and consequently Ms Sellin and Ms Curran are the named executors and trustees. The three page Will is dated 14 September 2015 and is signed by the testator, and his signature is witnessed by two witnesses whose names, occupations and residential addresses are set out. The Will also states that the testator had signed the Will in the presence of the two witnesses, and that it was “attested” by them in his presence.
[5] At paragraph 3 of the Will, the testator has made a series of handwritten specific bequests, by which he bequeathed cash sums to named individuals and organisations. Beside the typewritten words: “ 3. I MAKE the following bequests and legacies free of all duties:” the testator has written: “ SEE APPENDIX [A]”.
[6] The Will directs the executors to hold the rest of his estate to pay his debts, funeral expenses, administration expenses and duties, and to transfer the residue of his estate to his parents, with provision that if they predecease him the estate shall pass to their living children, and if more than one, in equal shares.
[7] Also located in the blue pouch was a separate handwritten document headed: “APPENDIX A – REFERS TO SECTION 3 OF WILL”. It comprises four pages of handwritten provisions which are co-related to the provisions of paragraph 3 of the Will and the specific cash bequests. It is written in blue ink. It is signed by the testator and dated 16 December 2019. The testator’s signature is not witnessed. At the foot of document the testator has written:
THIS DOCUMENT FORMS A PART OF MY LAST WILL AND TESTIMENT [sic]
[8] At paragraph 3(a) of the Will the testator provided for a bequest to Brian Hancox of “$50,000 - $100,000”. In Appendix A the testator provides:
3.1 Brian Andrew Hancox
To receive bank transfer of between $50,000 and $100,000 NZD. In the event he predeceases me, this payment is to transfer solely to his son, Daniel Brian Hancox.
[9] However, the testator has subsequently used a red pen to strike a line through the Brian Andrew Hancox provision, and has written and underlined “REMOVE”, beside the paragraph.
[10] Also in the blue pouch were a number of other documents also written in blue ink and marked:
(a) Appendix B: which contains details of the testator’s assets and liabilities, bank accounts, his car and motor scooter and his instructions regarding some furniture. In handwriting it states “Brian, Daniel, Judy & Glen to select any assets they would like”. The names “Brian, Daniel” have been subsequently crossed out in red pen.
(b) Appendix C: which contains details of the testator’s various access codes and passwords for devices and locks.
(c) Appendix D: which is a list of businesses and organisations to be notified of the testator’s death.
(d) Appendix E: which is a Power of Attorney dated 20 July 2000 and signed by the testator under his former name “Logan Curran”, appointing his father Peter Joseph Curran as his attorney.
(e) Appendix F: which is signed by the testator and dated 9 December 2015, headed “Eulogy of my Life”.
(f) Appendix G: which is headed “Funeral Arrangements”, in which the testator has set out his wishes regarding the arrangements for his funeral.
(g) Appendix H: which is headed “Contacts List” in which the testator has listed the names and contact details of a number of people.
(h) Appendix I: which is headed “Medical Support Systems – If on any life support system”, and sets out his instructions and wishes in the event of that situation arising.
(i) A document headed: “Reference for Funeral Files” in which the testator has listed appendices A- I, and noted that the original documents and copies were at his residence and further copies were with his parents, and with Ms Sellin.
(j) A piece of paper with the name and phone number and office address of the law firm, Schnauer and Co Ltd written on it.
(k) A printed copy of an email sent by Daniel Hancox to the testator dated 12 June 2022,3 on which Mr Hancox has added his comments and responses to an earlier email sent to him by the testator. The testator has handwritten on the document: “ My original email was sent – May 13 2022. And separate printed email written by the testator to Daniel Hancox on which the testator has handwritten: “Sent 13 June 2022 @0100 hrs”.
[11] On the cover of the blue pouch was a post-it note on which the testator has written:
If I, Declan Curran die before new will written and signed: Daniel Hancox is
not to receive anything! D Curran July 29 2022
[12] On the evening of 9 September 2023 Ms Curran uplifted an envelope from Ms Sellin which contained copies of documents located in the blue pouch but with the word “Copy” written on them. However the equivalent of the blue pouch Appendix A was marked, “Appendix [a]”. Although this version is in substantially the same terms as the version located in the blue pouch, it appears to be a photocopy of an original document, and it is not signed by the testator. Moreover, it does not have the
words, “This document forms a part of my last Will and Testiment [sic]”, written on it.
Law
[13] Section 11 of the Act provides:
11 Requirements for validity of wills
(a) sign the document; or
(b) direct another person to sign the document on his or her behalf in his or her presence.
(a) be together in the will-maker’s presence when the will- maker—
(i) complies with subsection (3); or
(ii) acknowledges that—
(b) each sign the document in the will-maker’s presence.
(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.
[14] Section 14 of the Act provides”
(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.
(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.
[15] Section 15 of the Act provides:
A valid will, or part of a valid will, may be changed, but only by one of the following means:
(a) the change is—
(i) written on the will; and
(ii) signed and witnessed as described in section 11(3) and (4), with the signatures written beside, or near to, the change; or
(b) the change is described in a note—
(i) written on the will; and
(ii) signed and witnessed as described in section 11(3) and (4); or
(c) the change is the obliteration of words in the will in such a way as to prevent their effect being apparent; or
(d) the change is declared valid under section 14; or
(e) the change is done under section 34(2).
[16] I respectfully agree with Whata J’s observations regarding s 14 in Re Feron,
where he said:4
In Re Estate of Murray MacKenzie J helpfully essays a number of authorities dealing with s 14. Those authorities illustrate that a robust approach to the application of s 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person. Section 14(2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not form. Furthermore, in reaching a conclusion I am also afforded a broad power to consider evidence on the deceased’s testamentary intentions and of statements made by the deceased person.
[17] In Re Prince MacKenzie J expressed the view that s 15(d) does not apply to a change in will which is made by a codicil which is separate from the will, so that the change is neither written on the will nor described in a note written on the will.5 Justice MacKenzie said that in his view the effect of s 15(d) is to extend the power of the Court under s 14 to a change of the type described in s 15(a)(i) and 15(b)(i), where the requirements of s 15(a)(ii) or s15(b)(ii) have not been met. I respectfully disagree with this analysis. Section 15(d) provides that a valid will, or part of a valid will, may be changed by means of including a change which is declared valid under s 14. Section 14(2) provides that the Court may make an order declaring the document to be valid if satisfied that the document expresses the deceased person’s testamentary intentions. In my view s 15(d) confers power on the Court to declare a change made to a will to be valid where the means employed by the deceased to do so clearly expresses the deceased person’s intention to do so. In my view the Court’s power to
4 Re Feron [2012] NZHC 44, [2012] 2 NZLR 551, at [11] (footnote omitted).
5 Re Prince [2012] NZHC 1058 at [11].
declare a change valid is not limited to the situations described by MacKenzie J, and can be exercised to declare a purported change to the terms of a will valid where the Court is satisfied that the purported change expresses the deceased person’s intention to do so. This interpretation is supported by the provisions of ss 15(e) and 34(2) which confer power enabling the Court to validate a change made by a military or seagoing person of any age to their formal or informal will by any words, written or oral, as long as they show an intention to change, revoke or revive the will. In that context the Court has power pursuant to s 15(d) to declare the change to be valid where it is satisfied that the testator has shown their intention to change their will. Under s 14(2) the issue is whether the Court is satisfied that the document in question expresses the deceased person’s testamentary intentions. In both instances it is the testamentary intention of the deceased that the Court must be satisfied of, and in my view there is no reason to treat a testator’s purported change to their will differently when considering whether to make a declaration of validity of a document pursuant to s 14, or the validity of a purported change to a will under s 15. In both cases the issue is whether the Court is satisfied as to what the testator’s testamentary intention was.
Submissions
[18] Ms Thomas for the plaintiffs submits that the testator’s Will dated 14 September 2015 which was located in the blue pouch meets the requirements of s 11 of the Act, and the plaintiffs do not dispute the validity of the Will. Ms Thomas submits that the “Appendix A” document located with the Will in the blue pouch, and dated 16 December 2019 is appropriately to be treated as being a codicil to the Will dated 14 September 2015. Counsel submits that as Appendix A was signed after the testator had executed his Will, the changes made to his testamentary dispositions by means of Appendix A should be given effect. She submits that where the terms of Appendix A are inconsistent with the terms of the Will, the testator is to be taken to have revoked his Will in those respects, and substituted the provisions set out in Appendix A.
[19] Ms Thomas accordingly submits that the Will and Appendix A should be read together as being a valid Will and codicil.
[20] Ms Thomas further submits that the testator’s use of a red-ink pen to strike out paragraph 3.1 of Appendix A, and the post-it note should be declared a valid change by the testator of his Will with the result that the bequest to Brian Hancox with a gift-over to his son Daniel Hancox as contained in Appendix A should be deleted from the Will. The plaintiffs therefore seek orders to that effect and an order that probate of the Will and Appendix A in its amended form omitting paragraph 3.1, may be granted.
Other parties
[21] As noted by Grice J in her Minute dated 19 June 2023, pursuant to directions for service, all of the beneficiaries named in the various documents have been served with the proceedings and affidavits of service have been filed. Justice Grice also noted:6
[3] ... One beneficiary, Daniel Hancox, resides in Australia. He is the son of Brian Hancox (now deceased) who was originally named as a beneficiary, but his son Daniel was named to take the bequest instead should Mr Brian Hancox predecease the deceased. Daniel Hancox has not responded to service. He was the only beneficiary who received a bequest in the will which was subsequently revoked.
[22] Two other parties served, the Northland Emergency Services Trust and the North Shore Hospice, have indicated to the plaintiffs that they did not intend to respond to service or participate in the proceeding, but wish to be advised of any decision of the Court in relation to the matter. None of the other six named beneficiaries under the Will have taken any steps in the proceeding.
Discussion
[23] I find that the Will executed by the testator dated 14 September 2015 complies with the validity of wills requirements set out in s 11 of the Act. It is in writing, and is signed by the testator in accordance with s 11(3), and is witnessed by two witnesses
6 Minute of Grice J, 19 June 2023, at [3].
who have confirmed in accordance with s 11(4), that the testator signed the Will in their presence, and that they themselves signed the document in the testator’s presence. I accordingly find the 14 September 2015 Will to be the valid will of Declan Kris Curran.
[24] I find that the version of Appendix A located in the blue pouch with the original Will, superseded the version marked “Appendix [a]” which was one of the “Copy” documents located in the envelope entrusted by the testator to Ms Sellin and subsequently uplifted from her by Ms Curran and her partner on 9 September 2022. And I am satisfied that the Appendix A document located with the Will, and which is signed by the testator and dated 16 December 2019, is a valid codicil to the testator’s Will. While it is not executed by the testator and witnessed in accordance with the requirements of s 11 of the Act, it is nevertheless a handwritten document prepared and signed by the testator and expressly intended by him to form part of his Will. The testator’s intention is clearly evident from his handwritten note stating: This Document Forms a Part of My Last Will and Testiment [sic]”.
[25] I accordingly find that Appendix A is a valid codicil which forms part of the testator’s Will.7
[26] The post-it note found affixed to the blue document pouch is written in the testator’s handwriting, and it was clearly intended by him to be an expression of his testamentary wishes and instructions. The testator’s obvious purpose in writing the note and leaving it on the document pouch containing his Will and other testamentary instructions, was to emphatically notify the executors and administrators of his estate that he did not wish to make any bequest to Daniel Hancox. Again, although the post-it note is not signed by the testator and witnessed by two witnesses in accordance with s 11 of the Act, it is in his handwriting and he has signed and dated it. The clearly expressed intention that Daniel Hancox is not to receive anything under the terms of the Will are further evidenced by the red-pen line drawn by the testator through paragraph 3.1 of Appendix A and his writing the word “Remove” in the margin beside that paragraph.
[27] While the testator’s intentions in that regard are quite clear, further support for him intending to amend his Will and remove the provision pursuant to which Daniel Hancox would receive the bequest originally made to his father Brian Hancox in the event that his father predeceased the testator, is evident from the emails exchanged between the testator and Daniel Hancox, which the testator placed with the other documents in the blue document pouch for his executors to review and act on. The emails exchanged on 12 and 13 June 2022 show there to have been a significant disagreement between them following Brian Hancox’s death. The testator subsequently wrote and signed the post-it note dated 29 July 2022, and consistently with that note used a red-ink pen to put a line through paragraph 3.1 of Appendix A and write “Remove” beside it.
[28] Pursuant to s 15 of the Act a valid will may only be changed by one of the means described in s 15, which includes in s 15(d), a change declared valid under s 14. I find that by putting a line through paragraph 3.1 of Appendix A and writing “Remove” in the margin beside it, the testator has validly changed the terms of Appendix A and thereby, changed the provisions of his Will to delete the bequest made to Brian Hancox and the gift-over to Daniel Hancox.
Result
[29] I make the following orders:
(a) I declare the Will made by Declan Kris Curran dated 14 September 2015 to be valid.
(b) I declare that Appendix A dated 16 December 2019 and signed by Declan Curran is a valid codicil to his Will dated 14 September 2015 and that the two documents comprise his last will and testament (the Will).
(c) The testator validly changed the Will to delete paragraph 3.1 of Appendix A and thereby deleted the bequest he originally made to Brian Hancox and the gift-over to Daniel Hancox.
(d) The consequence of the change being that probate of the Will and Appendix A, with paragraph 3.1 deleted, may now be granted by the Registrar.
Paul Davison J
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