Estate of Prestidge [2023] NZHC 2918 (18 October 2023)

Last Updated: 26 October 2023

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

CIV-2023-404-2248 [2023] NZHC 2918

UNDER	the Wills Act 2007
IN THE MATTER	of the Estate of KATHLEEN PRESTIDGE
AND
IN THE MATTER	of an application by MICHAEL COLIN PRESTIDGE for an order declaring document to be a valid will Applicant

Hearing:	On the papers
Appearances:	MSC Hansen for the Applicant
Judgment:	18 October 2023

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 18 October 2023 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

Solicitors: Smith and Partners, Auckland

ESTATE OF KATHLEEN PRESTIDGE [2023] NZHC 2918 [18 October 2023]

Introduction

• [1] Michael Prestidge applies without notice for an order declaring the draft will of his deceased wife, Kathleen Prestidge, to be valid under s 14(2) of the Wills Act 2007. Kathleen passed away before having signed the draft version of her updated will.

• [2] All of Kathleen’s children and stepchildren have consented to the order being made. Confirmation of their consent has been filed with the Court. In support of the application, affidavits from each of Michael and Mr Mackie, the lawyer responsible for drafting the will, have also been filed.

Background

• [3] Michael and Kathleen (together, the Prestidges) were married in 1991. Both have three children from previous relationships.

• [4] On 9 October 2014, Kathleen’s previous will was executed. The Public Trust was named as the executor and trustee of the will. Under that will, Michael, Kathleen’s children and stepchildren, and a family trust stood to benefit.

• [5] In December 2019, the Prestidges engaged Mr Mackie to advise them on their estate planning. The Prestidges wanted to ensure that on either of their deaths, the surviving spouse would retain control of the assets that had been accumulated during their relationship.

• [6] Consistent with these arrangements and discussions, on 16 January 2020, Mr Mackie sent the Prestidges draft versions of the wills he had prepared in accordance with their instructions. On or about 20 January 2020, Mr Mackie spoke with Michael on the phone and received confirmation that the draft wills reflected the couple’s intentions. A meeting was scheduled for the following week to have the documents signed at the Prestidge’s property in Miranda. The Prestidges had organised for a neighbour to attend the meeting to act as a second witness. Due to unforeseen personal circumstances, Mr Mackie had to cancel this appointment. It was agreed the meeting would be rescheduled for mid-to-late February.
• [7] On 11 February 2020, Kathleen passed away before having signed the draft will. She is survived by Michael, her three children, and three stepchildren.

• [8] In essence, the draft will of Kathleen stipulates that:

(a) Michael is to be appointed as the executor and trustee of the will;

(b) Michael is to replace Kathleen as the settlor of the family trusts;

(c) the amounts owed by the family trusts to Kathleen are to be forgiven; and

(d) the estate is to be left to Michael — in the event he did not survive Kathleen, the estate was to be left in equal parts to her children and stepchildren.

Legal Principles

• [9] Section 8(1) of the Wills Act 2007 sets out the meaning of a will. It includes a document made by a natural person which disposes of property to which the person is entitled when he or she dies.

• [10] Section 11 sets out the requirements for a valid will. These include that it must be in writing, signed by the will-maker and witnessed in the manner required by s 11(4).

• [11] Under s 14, the Court may declare a document that does not comply with s 11 to be a valid will if it is satisfied the document expresses the deceased person’s testamentary intentions. Section 14(3) provides that in considering whether to declare the will valid, the Court may consider the document itself, evidence of the signing and witnessing of the document, evidence of the deceased person’s testamentary intentions and evidence of statements made by the deceased.
• [12] The approach to the application of s 14 was helpfully summonsed by McKenzie J in Re Beaumont and Re Campbell:¹

(a) great care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so;

(b) under s 14(2), the inquiry is focussed on the will-maker’s intentions, rather than the formal steps taken to implement those intentions;

(c) the evidence that may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant considerations;

(d) where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect in preference to intestacy; and

(e) there must be cogent evidence that the document reflects the deceased person’s testamentary intentions but the standard of proof to be applied is the ordinary civil standard; that is, the balance of probabilities.

• [13] The Court has previously been prepared to grant validation applications where there is evidence the deceased overlooked or forgot to sign the will, believed they were not required to do so, or simply did not manage to sign the will before they died.²

Applicant’s submissions

• [14] The application has been made on a without notice basis on the grounds that requiring notice would cause undue delay or prejudice to the applicant given all of

1. Re Beaumont [2013] NZHC 2719 at [11]; and Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15]–[22].
2. See, for example, Hickford (deceased) HC Napier CIV-2009-441-000369, 13 August 2009; Gladwin v Public Trust [2011] NZHC 1596; [2011] 3 NZLR 566; Tamapara v Byerley [2014] NZHC 1082; and Amundson v Raos [2015] NZHC 2422, [2015] NZAR 1772.

Kathleen’s children and stepchildren have consented to the orders sought. There would be no other interested parties to serve.

• [15] As to the substantive application, Ms Hansen, counsel for Michael, submits that the requirements of s 14 of the Wills Act are met and the orders sought are appropriate. She says that the draft will appears to be a will because it was drafted by a solicitor; does not comply with s 11 because it was not signed by Kathleen; and came into existence in New Zealand, having been drafted by an Auckland-based lawyer.

• [16] If the Court is satisfied that s 14(1) is met, Ms Hansen says that the Court can then make an order declaring the draft will to be valid because it expresses Kathleen’s testamentary intentions. To establish that the document does express those intentions, Ms Hansen makes the following points:

(a) Kathleen instructed Mr Mackie to draft the will.

(b) Kathleen wanted to update her will:

(i) to incorporate a family trust that was established after her 2014 will was made so that any debt owed to her by the trust could be forgiven on her death; and

(ii) to remove the Public Trust as an executor because she had found dealing with them to be logistically difficult, and she had already removed them as a trustee of the family trust. This aligned with her desire for her estate planning documentation to be with Mr Mackie going forward.

(c) Mr Mackie had drafted the will and provided a copy to Kathleen before her death. In his affidavit, Michael affirms that Kathleen reviewed the draft will and was happy with its contents.

(d) The Prestidges had made an appointment with Mr Mackie to sign their new wills, including arranging for a neighbour to attend as a second

witness. That appointment did not go ahead because Mr Mackie needed to cancel, not because of any decision of Kathleen.

Discussion

• [17] I have carefully reviewed the affidavits filed in support of the application and also the consents filed by each of Kathleen’s children and stepchildren. In short, I am satisfied that the application ought to be granted, the draft will reflecting Kathleen’s intentions.

• [18] The chain of correspondence between Mr Mackie and the Prestidges over the period December 2019 to mid-January 2020 is fully consistent with the contents of the will expressing Kathleen’s testamentary wishes. There is nothing before the Court to suggest otherwise, and indeed the content of Mr Mackie’s affidavit is confirmatory of Kathleen’s intentions. Consistent with those arrangements, Mr Mackie also confirms that Michael went on to sign a will in the same terms as the draft will that it was intended Kathleen would sign — had the appointment in late January 2020 gone ahead.

• [19] I also take into account that the reason for that meeting not going ahead was nothing to do with Kathleen expressing any concerns as to the content of the draft will, but rather Mr Mackie unexpectedly being unable to attend. The Prestidges had made arrangements for a neighbour to attend to act as second witness, also being consistent with the draft will reflecting Kathleen’s intentions.

• [20] For completeness, I do not take into account the fact that each of the children and stepchildren have consented to the application in the context of ascertaining Kathleen’s intentions. The fact of consent does not itself shed any light on her intentions. Rather, the fact of consent is relevant to whether the application should be dealt with on a without notice basis. Given there are no other interested parties in this matter, it is plainly appropriate, in my view, that the application is determined on a without notice basis.

Result

• [21] Being satisfied that the requirements of s 14 of the Wills Act are made, the application is granted. I make orders in accordance with paragraphs 3.1 and 3.2 of the draft orders filed with the application.

• [22] I make no order as to costs.

Fitzgerald J