Estate of Beavis [2023] NZHC 2519 (8 September 2023)

Last Updated: 13 November 2023

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

CIV-2023-404-002005 [2023] NZHC 2519

UNDER	the Wills Act 2007
IN THE MATTER	of the estate of PHYLLIS JEAN BEAVIS
AND	JOHN GRAHAM BEAVIS and CRYSTAL JEAN BEAVIS Applicants

Hearing:	(On the papers)
Judgment:	8 September 2023

JUDGMENT OF VENNING J

This judgment was delivered by me on 8 September 2023 at 11.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Patterson Hopkins, Auckland

Estate of PHYLLIS JEAN BEAVIS [2023] NZHC 2519 [8 September 2023]

Introduction

• [1] John Beavis and Crystal Beavis seek an order dispensing with service and a substantive order validating a handwritten document bearing the date 30 July 2008 made and signed by Phyllis Jean Beavis (deceased) as the last will of the deceased.

• [2] John and Crystal are the deceased’s only son and daughter respectively.

Background

• [3] The deceased died on 3 December 2020 aged 101. Her husband predeceased her. On 30 July 2008 the deceased made a document stated to be a will which revoked all former wills, appointed John and Crystal as executors and trustees, and gave all investments, goods and chattels held by her at her death to John and Crystal equally in the event they survived her. In the event either of them did not survive there was a gift over of that portion of the estate to Alexandra Bridger and Charles Bridger. Alexandra and Charles are Crystal’s children.

• [4] The will document was signed by the deceased but it was not witnessed. Both John and Crystal have sworn affidavits in support of the application. They have also attached the consent of Alexandra and Charles to the will document dated 30 July 2008 being validated.

• [5] The deceased purported to make a prior will on 19 March 2006, which again was a handwritten document. Again it was not witnessed. Prior to that, the deceased had made a 2002 will which was properly completed and executed with all formalities. The 2002 will was made at a time when the deceased’s husband was still alive and made substantial provision for him. The deceased’s husband died after that will in 2005 before she prepared the 2006 will document.

• [6] In the circumstances, the Court is satisfied that it is unnecessary to serve any additional parties. All affected parties have either sworn affidavits in support or have filed consents. There will be an order dispensing with service of the proceedings on Alexandra Bridger and Charles Bridger and directing that service is not required on any other party.
• [7] As to the originating substantive application, the applicants seek to have the will document of 30 July 2008 declared valid as the deceased’s last will. The substantive application is made under s 14 of the Wills Act 2007. Part 19 now permits such applications to be brought by way of originating application.¹ The document created by the deceased in July 2008 satisfies the requirements of s 8 of the Wills Act 2007 as to the meaning of a will. However, it fails to satisfy the requirement of a valid will under s 11 of the Act as it has not been witnessed by two witnesses.

• [8] Section 14 of the Wills Act is a remedial section which confirms this Court may declare a will document valid, despite the fact of non-compliance with s 11 if the Court is satisfied the document expresses the deceased’s testamentary intentions.

• [9] Section 14(3) sets out the matters the Court may consider:

(a) the document;

(b) evidence on the signing and witnessing of the document;

(c) evidence of the deceased’s testamentary intentions; and

(d) evidence of statements made by the deceased.

• [10] In this case the document itself is expressed as a will, and was prepared and signed by the deceased. John Beavis has confirmed the handwritten 2008 will was written by her, the deceased. It is in her handwriting and was signed by her.

• [11] The will document is consistent with a previous document the deceased had prepared in 2006 after the death of her husband. The document itself is a clear document and confirms the deceased’s testamentary intent.

• [12] There is no suggestion that the deceased’s intention as to her testamentary disposition changed from execution of the will document on 30 July 2008 and the date of her death.

¹ High Court Rules 2016, r 19.2(xa).

• [13] The Court is satisfied that the will document dated 30 July 2008 reflects the deceased’s testamentary intention at the date of her death. On substantive points it is consistent with the previous document and it fairly deals with the division of her estate between her two surviving children.

Orders

• [14] The Court makes an order validating the handwritten document dated 30 July 2008 made and signed by Phyllis Jean Beavis as her last will.

• [15] The costs of this application are to be borne by her estate.

Venning J