Estate of Walters [2024] NZHC 1487 (6 June 2024)

Last Updated: 2 July 2024

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

CIV-2023-404-002004 [2024] NZHC 1487

UNDER	Part 19 of the High Court Rules and s 14 of the Wills Act 2007
IN THE ESTATE AND	of GEORGE WILLIAMS WALTERS
IN THE MATTER	of an originating application by BETTY ELAINE WALTERS Applicant

Hearing:	6 June 2024
Appearances:	N Taefi for Applicant
Judgment:	6 June 2024

JUDGMENT OF VENNING J

This judgment was delivered by me on 6 June 2024 at 2.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

Solicitors: Dyson Smythe and Gladwell Lawyers, Warkworth Counsel: N Taefi, Auckland

Re Estate of WALTERS [2024] NZHC 1487 [6 June 2024]

• [1] Betty Elaine Walters (Betty Walters) seeks an order declaring an undated draft will of George William Walters, deceased, valid under the Wills Act 2007 (the Act).

• [2] George William Walters died on 10 April 2021. At the time of his death he was married to Betty Walters, having married her in June 1989. It was a second marriage for Mr Walters. His first wife had died in July 1984. The deceased George Walters had five children from his first marriage:

(a) Danielle Jeanne Salamone;

(b) Georgette Marie Shudes (now deceased);

(c) Rebecca Joy Walters;

(d) George William Walters Jnr; and

(e) Terry Jess Harmes.

• [3] The deceased also had a number of grandchildren.

• [4] Betty Walters and the deceased lived in California, USA, but the deceased owned a property in New Zealand. He and Betty Walters spent up to six months of the year in New Zealand.

• [5] In about 2009, following discussions with their Attorney, James Reding Helms, Mr Helms prepared a trust and will for each of Betty Walters and the deceased. The documents were signed on 4 November 2009. Mr Helms then provided them with an estate planning binder which contained the original will and estate planning documents. Unfortunately in March 2017, the deceased and Betty Walters’ home was subject to a burglary during the course of which the estate planning binder was taken.

• [6] On 5 April 2017, the deceased and Betty Walters went to Mr Helms’ office and re-signed the previously created documents, including the will. Mr Helms and his assistant, Cheryl Craig were present. Again, they were given the original wills to take home. Betty Walters has however been unable to locate the deceased’s original will.

She has a copy of the document which was executed on that day which confirms it was executed in the presence of James Helms and Cheryl Craig.

• [7] Betty Walters seeks to have the will regularised under s 14 of the Wills Act 2007.

• [8] Section 14 of the Act provides this Court may make an order declaring a document that appears to be a will but which does not comply with the formal requirements to be a valid will if the Court is “satisfied that the document expresses the deceased person’s testamentary intentions”.

• [9] In reaching a conclusion as to whether it is satisfied under s 14(2) of the Act that the document expresses the deceased’s testamentary intentions the Court must have regard to the evidence.¹ The standard of proof is the civil standard on the balance of probabilities.

• [10] The potential consequences of the order and the importance of it are reflected in the seriousness of the matters to be proved and consequences of proving them.²

• [11] In the present case, I note that apart from Betty Walters’ evidence, there is also the evidence of James Reding Helms, the attorney who attended the deceased and Betty Walters on 5 April 2017, when they re-executed further copies of the previously created estate planning documents, including the deceased’s will. Mr Helms confirms that he was one of the subscribing witnesses along with Cheryl Craig, his assistant at the time. Mr Helms also confirms that at the time of the attestation the deceased confirmed to him the will expressed his testamentary intentions and his intent to be bound by it. Mr Helms was satisfied the deceased had full testamentary capacity and was making the 2017 will of his own volition.

• [12] It was not Mr Helms’ practice at the time to keep copies of the signed wills, which were returned to the client for safe keeping. Mr Helms deposes he is certain that the document annexed as an exhibit to his affidavit, which is the same as the

¹ Wills Act 2007, s 14(3).

² Re Beaumont [2013] NZHC 2719.

document attached to the affidavit of Betty Walters, was identical to the new will executed by the deceased on 5 April 2017 and he has no knowledge of the deceased executing any wills later.

• [13] On the evidence before the Court, the Court is satisfied that the draft document annexed to Betty Walters’ affidavit appears to be a will in accordance with the definition in s 8 of the Wills Act. It does not comply with s 11, as it is not executed by the deceased. The fact it came into existence out of New Zealand does not disqualify it from application of s 14.³ Having regard to the evidence as to the signing and witnessing of the document from both Betty Walters and Mr Helms and their evidence of the deceased’s testamentary intentions, this Court is satisfied that it expresses the deceased’s testamentary intentions.

• [14] The discretion conferred by s 14 is of a residual nature. Good reasons would need to exist to refuse to make an order if the Court is satisfied that the document represents the testamentary intentions of the deceased. All of the relevant parties have now been served and have taken no steps to oppose the application. Indeed one of the deceased’s children, Danielle Salamone, has filed an affidavit in support, even though she understands that she and her children will not benefit under the will.

Result/order

• [15] There will be an order declaring the document attached to Betty Walters’ affidavit sworn on 22 June 2022 to be the valid will of the deceased.

Venning J

³ Wills Act 2007, s 14(1)(c).