Estate of Wendt [2023] NZHC 3179 (10 November 2023)

Last Updated: 15 November 2023

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

CIV-2023-404-1116 [2023] NZHC 3179

UNDER	the Wills Act 2007
IN THE MATTER	of the Estate of TUI WENDT
AND
IN THE MATTER	of an application by RITA LANA TUI ANSIN for an order declaring document to be a valid will Applicant

Hearing:	On the papers
Appearances:	T Greenwood for the Applicant
Judgment:	10 November 2023

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 10 November 2023 at 3.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

Solicitors: Greenwood Law, Waiheke Island

ESTATE OF TUI WENDT [2023] NZHC 3179 [10 November 2023]

Introduction

• [1] Rita Ansin applies by way of originating application for an order declaring the will of her deceased mother to be valid under s 14(2) of the Wills Act 2007 (the Act). Tui Wendt passed away without her will having been witnessed in accordance with the requirements of s 11 of the Act.¹

• [2] All the beneficiaries of Ms Wendt’s current and earlier wills have been served with a copy of the application and supporting affidavit. Affidavits of service have been filed. On 7 August 2023, Ms Wendt’s daughter, Ms Una Wendt, filed an affidavit raising concerns about her mother’s testamentary capacity at the time the will was made. Following communications between the family, Una Wendt has confirmed that she does not oppose the application. No further opposition has been received from any other party.

Background

• [3] On 6 October 2022, Mr Greenwood, a lawyer, received a phone call from Ms Asin and a community nurse. They informed Mr Greenwood that Ms Wendt was receiving palliative care and wanted to update her will and establish enduring powers of attorney (EPOA). Mr Greenwood agreed to visit Ms Wendt that afternoon for those purposes.

• [4] During this meeting Mr Greenwood received instructions from Ms Wendt regarding her will and powers of attorney. Mr Greenwood affirms that while Ms Wendt appeared to be in significant discomfort during the meeting, she was able to provide clear instructions that detailed her testamentary wishes. In particular, she was able to identify both the significant property that she owned and her family members.

¹ Section 11 is set out in full at [13] below.

• [5] During this visit, Mr Greenwood advised Ms Asin that Ms Wendt’s doctor should be asked to confirm whether Ms Wendt had the requisite capacity to be making these arrangements. Dr Karetai, Ms Wendt’s attending doctor, subsequently provided a certificate dated 6 October 2022, which confirmed Ms Wendt had the capacity to complete her EPOA documentation.

• [6] Dr Potts, Ms Wendt’s usual doctor, also provided a certificate dated 24 April 2023 that confirms Ms Wendt’s capacity at the relevant time. Dr Potts did so after having reviewed Dr Karetai’s clinical notes and Mr Greenwood’s comments about his meetings with Ms Wendt on 6 and 7 October 2022. Of note, Dr Potts records that the medication prescribed to Ms Wendt on 6 October 2022 would not have diminished her capacity.

• [7] On 7 October 2022, Mr Greenwood visited Ms Wendt a second time to clarify her instructions. He notes that during this meeting Ms Wendt appeared to be in a much better state—she was alert and communicated clearly, and no longer appeared to be in any discomfort. At this time, Mr Greenwood discussed with her the potential for claims under the Family Protection Act 1955, and how that risk could be mitigated. In response to that advice, Ms Wendt provided further instructions regarding the disposition of her property.

• [8] Later that afternoon, Mr Greenwood returned to the residence and spoke with Ms Wendt. Eileen Sumpter, a nurse, was also present at this meeting for the purpose of acting as a witness. Ms Wendt signed the documents in the presence of Mr Greenwood and Ms Sumpter, however neither of the witnesses signed the will in Ms Wendt’s presence. Mr Greenwood reports that he left the bedroom after Ms Wendt signed the documents so that Ms Sumpter could make her comfortable in bed. Mr Greenwood signed the will when he returned to his office.

• [9] On 9 October 2022, Mr Greenwood visited Ms Sumpter and she signed the will. Mr Greenwood affirms that at all times since Ms Wendt signed the will, it has remained in his possession and control.
• [10] Ms Wendt passed away on 9 October 2022.

• [11] Ms Wendt’s will provides that:

(a) Ms Asin is to be appointed the executor and trustee of the will.

(b) Her personal effects and furniture are to be distributed amongst named family members.

(c) A property at Palm Beach, Waiheke Island is to be left to Ms Asin.

(d) A property at Avondale, Auckland, is to be left to Ms Wendt’s named grandchildren.

(e) Ms Wendt’s interest in Māori freehold hand is to be left to her two daughters.

(f) Ten percent of the residue is to be left to Ms Una Wendt, and the remainder to a named daughter-in-law.

Legal Principles

• [12] Section 8(1) of the Act 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.

• [13] Section 11 sets out the requirements for a valid will. It provides:

11 Requirements for validity of wills

(1) A will must be in writing.

(2) A will must be signed and witnessed as described in subsections (3) and (4).

(3) The will-maker must —

(a) sign the document; or

(b) direct another person to sign the document on his or her behalf in his or her presence.

(4) At least 2 witnesses must —

(a) be together in the will-maker’s presence when the will-maker —

(i) complies with subsection (3); or

(ii) acknowledges that —

• (A) he or she signed the document earlier and that the signature on the document is his or her own; or

• (B) another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b) each sign the document in the will-maker’s presence.

(5) As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:

(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.

(6) No particular form of words is required for the purposes of subsection (5).

(Emphasis added)

• [14] It is s 11(4) that has not been complied with in this case.

• [15] Pursuant to s 14 of the Act, 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.

• [16] The approach to the application of s 14 was helpfully summarised by McKenzie J in Re Beaumont and Re Campbell:²

(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.

• [17] The Court has previously been prepared to grant validation applications where a witness has not signed the will in the presence of the testator. Counsel for Ms Ansin has referred the Court to a number of these decisions.³

2. Re Beaumont [2013] NZHC 2719 at [11]; and Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15]–[22].

³ Re Barnes [2019] NZHC 1264; Re Estate of Gates [2016] NZHC 589; Re Estate of Cleveland

[2016] NZHC 601; Re Thompson [2018] NZHC 725; Re Estate of Toomer [2016] NZHC 1615.

Applicant’s submissions

• [18] Ms Ansin submits that from the surrounding circumstances in which the will was prepared and signed, and from the contents of the document itself, it is clear that the will expresses Ms Wendt’s testamentary wishes. She says that the Court should not have concerns about Ms Wendt’s testamentary capacity in light of the certificates provided by two doctors, as well as the affidavit provided by Mr Greenwood, which addresses the circumstances of the will being prepared and Mr Greenwood’s own observations of Ms Wendt at the time of taking her instructions.

Discussion

• [19] There is nothing before the Court which suggests that the will the subject of the present application reflects anything other than Ms Wendt’s testamentary intentions. In particular, Mr Greenwood had two separate meetings with Ms Wendt, the first in which she seemed to be in physical discomfort but was mentally alert and was able to provide him with clear instructions. Further, Mr Greenwood appropriately requested that Ms Ansin take steps to confirm Ms Wendt’s testamentary capacity, which was confirmed by Ms Wendt’s treating doctor at the time, as well as her usual GP. Mr Greenwood’s second meeting with Ms Wendt also reinforces testamentary capacity. In addition, the face of the will itself appears to reflect conscious and considered decision-making on Ms Wendt’ behalf; in other words, there is nothing suggesting illogicality or inconsistency. Finally, and while of course not determinative, this is also reinforced by the fact there is no active opposition to the application.

• [20] Accordingly, I am satisfied on the balance of probabilities that the will reflects Ms Wendt’s testamentary intentions at the time the will was made. I am equally satisfied that the fact that neither Mr Greenwood nor the second witness signed the will in Ms Wendt’s presence undermines or otherwise implicates Ms Wendt’s testamentary intentions. As noted, Mr Greenwood confirms that since Ms Wendt signed the will, it has remained in his possession and control.

• [21] I am therefore prepared to grant the application.

Result

• [22] The application is granted. I make an order declaring the document entitled the Will of Tui Valda Wendt dated 7 October 2022 to be valid for the purposes of the Wills Act 2007.

Fitzgerald J