Estate of Davies [2024] NZHC 3213 (31 October 2024)

Last Updated: 8 November 2024

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

CIV-2024-485-648 [2024] NZHC 3213

UNDER	Sections 14 and 31 of the Wills Act 2007
IN THE MATTER	of the Estate of AARON PAUL DAVIES
	PATRICIA ANN ALDERSON Applicant

Hearing:	On the papers
Counsel:	S E Greer for Applicant
Judgment:	31 October 2024

JUDGMENT OF McHERRON J

• [1] This without notice application under s 31 of the Wills Act 2007 (Act), to correct the will of Aaron Paul Davies, was referred to me for consideration as Duty Judge. Ms Alderson, Mr Davies’ mother, also applies for an order declaring a 2024 document (the “last wishes” document) a valid codicil.

• [2] Mr Davies died on 17 April 2024, after a short illness. Ms Alderson submits that Mr Davies intended his two testamentary documents to be read together, and that validation and correction is required to give effect to his wishes.

The 2013 will document

• [3] In 2013 Mr Davies completed a template will form. It complies with the requirements for validity of wills in s 11 of the Act. However, it contains a clerical error requiring correction under s 31(1)(a).

ESTATE OF DAVIES [2024] NZHC 3213 [31 October 2024]

• [4] The correction Ms Alderson seeks is to insert the words “the said Patricia Ann Alderson” in the blank space after clause 2(a) (after the words “appoint as executor and trustee of this Will (“my trustee”)”), where Mr Davies omitted to do so. Mr Davies wrote “If my Mother, Patricia Ann Alderson, survives me by 30 days...”, but did not write her name afterwards in the space provided.

• [5] The handwritten reference to Ms Alderson earlier in the document suggests that Mr Davies intended his mother to be his executor and trustee. Moreover, Ms Alderson’s evidence is that her son told her he wanted her to be the executor of his estate. Based on this evidence, I am satisfied it is appropriate to correct the 9 July 2013 will document in this way.

The 2024 “last wishes” document

• [6] The 2024 “last wishes” document is a detailed series of instructions prepared by Mr Davies, apparently on 31 March 2024, stating:

(a) his estimated worth;

(b) his preferred funeral arrangements;

(c) how he wanted his residuary assets to be divided up after his death.

• [7] There are three different dates on the “last wishes” document. The document is signed and dated 31 March 2024. However, there is a separate, signed, handwritten declaration that Mr Davies is of sound mind and body dated 10 April 2024. Ms Alderson deposes that this date is incorrect and that she and her husband were present at Mr Davies’ bedside when he signed the declaration on 15 April 2024. Two other teacher colleagues of Mr Davies signed the last wishes document and dated it 15 April 2024.
• [8] Ms Alderson’s application seeks a declaration under s 14 of the Act that the “last wishes” document is valid. However, I am not sure that such a declaration is strictly necessary. Section 14 applies to a document that:

(a) appears to be a will;

(b) does not comply with s 11 of the Act;

(c) came into existence in or out of New Zealand.

• [9] The document was prepared in New Zealand and appears to be a will,¹ so the first and last of these criteria are met. But, before it can be validated, the “last wishes” document must be non-compliant with s 11, which 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

¹ Section 8(3)(e) of the Wills Act 2007 provides that a will includes a codicil to a will.

(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).

• [10] In my view, the “last wishes” document complies with the requirements in s 11 for the validity of wills. It is in writing and signed by the will-maker. And, as is clear from the words they have used, and Ms Alderson’s and Ms Johnson’s affidavits, the two witnesses each signed the document in the will-maker’s presence after he confirmed he had signed the document earlier. The only matter that requires correction in that document is the date of Mr Davies’ declaration he was of sound mind which, having considered the evidence, I will correct under s 31 of the Act to 15 April 2024.

• [11] I am satisfied that the “last wishes” document expresses Mr Davies’ testamentary intentions. It is clear he turned his mind to his final wishes, attempted to ensure the changes were “legal” in a changing situation, and was of sufficiently sound mind and body to make the wishes he expressed.

Reading the documents together

• [12] It is evident to me Mr Davies intended the two documents to be read together. He referred to “[a will]” he “did years ago” (9 July 2013 will), and his desire to “make sure [his list of wishes] is legal”. His communications over his phone label the 2024 document his “last wishes”. At a different time, he describes this document as “a list of last wishes and where I want my stuff to go. This list is to help you”. It is appropriate to regularise the 9 July 2013 will, and to confirm the validity of the 2024 “last wishes” document to give effect to both as the best expression of Mr Davies’ wishes.

Conclusions

• [13] Counsel says there are no other parties who may be affected by the making of an order who have not had the opportunity to be represented in the proceedings, or who could or should be provided with notice of the application. On an intestacy, Mr Davies’ estate would pass to his parents. I am satisfied that it is appropriate for the application to be brought on a without notice basis, given the consent by Mr Davies’ father Garry Herbert Davies in support of the application.

• [14] I observe that the consent provided by Garry Davies is expressed broadly, stating that he “will not be contesting Aaron Paul Davies will”. It would have been preferable for the consent to specify clearly that the will documents were the ones to which the consent refers, by attaching those documents. However, I accept that Ms Alderson’s evidence confirms that the consent does refer to the will and the “last wishes” document. In the interests of progressing this matter efficiently and without undue expense and formality,² I accept Garry Davies’ consent as sufficient.

• [15] Accordingly, I make orders:

(a) granting leave for the application to be brought without notice;

(b) correcting the 9 July 2013 will to make it clear that Patricia Ann Alderson is appointed executor and trustee of Mr Davies’ will;

² Wills Act,

(c) correcting the date of Mr Davies’ declaration on the first page of the “last wishes” document to 15 April 2024;

(d) (for the avoidance of doubt) declaring the “last wishes” document of 15 April 2024 to be a valid codicil to the 9 July 2013 will.

McHerron J

Solicitors:

Gallie Miles, Lawyers, Te Awamutu for Applicant