Estate of Otway [2024] NZHC 1603 (18 June 2024)

Last Updated: 8 July 2024

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-301 [2024] NZHC 1603

IN THE MATTER	of the Estate of Murray Hamish William Otway
BETWEEN	VANESSA LOUISE GILLESPIE SCOTT and HUGO RODIER GIBBS Applicants

Judgment (on the papers):

18 June 2024

JUDGMENT OF ROBINSON J

[Application for an order declaring a will to be valid]

Solicitors:

Ronald W Angland & Son, Canterbury

RE ESTATE OF MURRAY HAMISH WILLIAM OTWAY [2024] NZHC 1603 [18 June 2024]

Background

• [1] The applicants, Vanessa Louise Gillespie Scott and Hugo Rodier Gibbs, are the surviving de-facto partner and friend respectively of the deceased, Murray Hamish William Otway. The deceased died on 25 November 2023 in Halswell, Christchurch. He was survived by Ms Scott and their two children.

• [2] The application is for an order that an undated document (the Document) purporting to be the will of the deceased be declared as valid. The application is made without notice.

The facts

• [3] The affidavits provided by Ms Scott and Mr Gibbs record that the Document was drafted by a law firm in 2017. This was prompted by the fact that the deceased did not have a will at the time. According to the affidavits, the Document was never signed due to a number of reasons, including the COVID-19 lockdowns, the deceased being impacted by the death of a close friend, his work schedule and the deceased prioritising the need to provide for his family.

• [4] The Document:

(a) is titled “Will of Murray Hamish William Otway”;

(b) nominates Ms Scott and Mr Gibbs as executors;

(c) appoints guardians for their children in the event that Ms Scott did not survive the deceased; and

(d) provides instructions for the distribution of his property.

• [5] Both affidavits cite the existence of various debts owed by the deceased and the need for probate to be granted so that Ms Scott and Mr Gibbs can act to alleviate the financial pressures caused to the deceased’s family by his passing. Finally, Ms Scott’s affidavit observes that if probate is not granted in respect of the Document, she is entitled to succeed on the deceased’s intestacy.
• [6] Finally, counsel have advised in their memorandum that the Document reflects the discussions that the deceased had with counsel’s firm when they first drafted the Document in 2017.

Should the Court make an order?

• [7] Section 11 of the Wills Act 2007 sets out the requirements of a valid will. The Document falls short of those requirements in that it was never signed by the deceased, or by someone directed by the deceased to sign on his behalf.

• [8] Section 14 of the Act provides that the High Court may make an order declaring a document to be a valid will if it is satisfied that the document expresses the deceased person’s testamentary intentions.¹ Such orders can be made in respect of documents that appear to be a will but do not comply with s 11.² In determining whether or not to make such an order, the Court may consider: the document; evidence concerning the signing and witnessing of a document and the deceased person’s testamentary intentions; and evidence of statements made by the deceased.³

• [9] On the evidence before me, I am satisfied on the balance of probabilities that the Document reflects the deceased’s testamentary intentions. The Document was drafted on the deceased’s instructions and with the intention that it become the deceased’s valid will. The evidence is also clear that the deceased intended for Ms Scott and Mr Gibbs to be executors of his will.

• [10] It is not entirely clear why the deceased failed to sign the Document between 2017 and his death late last year. A range of possible reasons are cited by Ms Scott and Mr Gibbs. Nevertheless, the Document clearly provides for the deceased’s testamentary intentions regarding the distribution and use of his property after his passing. Namely, that his partner is to retain a life interest in their family home; that his share of the family home is to pass to his children; and that provisions are made for the holding on trust of the residue of the estate for Ms Scott and their children.

¹ Wills Act 2007, s 14(2).

² Wills Act, s 14(1).

³ Wills Act, s 14(3).

• [11] I therefore make the following orders:

(a) an order declaring that the Document that is the subject of this proceeding is a valid will of Murray Hamish William Otway; and

(b) an order confirming that the application is properly filed on a without notice basis.

Robinson J