MCKAY v ST VINCENT DE PAUL NEW ZEALAND [2022] NZHC 846

MCKAY v ST VINCENT DE PAUL NEW ZEALAND [2022] NZHC 846 [28 April 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-1973[2022] NZHC 846IN THE MATTER of s 14 of the Wills Act 2007IN THE MATTER of the estate of Daniel Joseph EvilleBETWEEN COLIN CHARLES MCKAYApplicantAND SOCIETY OF ST VINCENT DE PAULNEW ZEALAND, THE SALVATIONARMY, THE FRED HOLLOWSFOUNDATION NZRespondentsHearing: On the papersAppearances: P J Stevenson for ApplicantJ G Hannan for The Fred Hollows Foundation (NZ)Judgment: 28 April 2022JUDGMENT OF LANG J[on application for order under s 14 of the Wills Act 2007]This judgment was delivered by me on 28 April 2022 at 11.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Daniel Joseph Eville died at Auckland in early May 2021. Prior to his deathhe had given instructions to his solicitors for the preparation of a new will. These werecontained in a handwritten document that he signed and gave to his solicitors on 11February 2020. Mr Eville's solicitors subsequently sent a draft will reflecting thoseinstructions to Mr Eville but he never signed it before he died.[2] The applicant, Mr Colin McKay, is a partner in the firm of solicitors fromwhom Mr Eville sought advice about the preparation of his will. In this proceedingMr McKay seeks an order under s 14 of the Wills Act 2007 declaring the handwrittendocument to be a valid will.[3] Mr McKay also seeks an order that he be permitted to have immediate recourseto the sum of $5,000 from Mr Eville's estate so that he may pay outstanding insurancepremia that relate to four residential properties owned by Mr Eville's estate.Background[4] In May 2019 Mr Eville consulted the law firm Wilson McKay with a view tosigning a new will. He met with a solicitor from that firm, Ms Christina Wilson, on7 May 2019. She deposes that she provided Mr Eville with the information he wouldneed to provide in order to make a new will. At that point Mr Eville confirmed hewished the law firm to be the executor of his will and that his wife, Nyria, should bethe beneficiary of his estate. Mr and Mrs Eville did not have any children. Ms Wilsontherefore suggested to Mr Eville that he should include a substituted beneficiary incase his wife died before he did. Mr Eville said he would think about this and get backto Ms Wilson with his instructions.[5] On 6 June 2019 Mr Eville telephoned Ms Wilson and instructed her that if hiswife died before him, his estate was to be left in equal shares to the Salvation Armyand the Society of St Vincent De Paul. Ms Wilson then prepared a draft will inaccordance with these instructions and forwarded this to Mr Eville.[6] Mr Eville's wife subsequently died on 24 June 2019. Ms Wilson then advisedMr Eville that he needed to update his will to reflect this fact. Mr Eville met with MsWilson again on 11 February 2020. During that meeting he provided Ms Wilson witha handwritten document headed "Will". This provided as follows:11.2.2020WillDaniel Joseph Eville DOB 3 January 1938Proceeds to be left as followsSalvation ArmySt Vincent De PaulThe Fred Hollows Foundation NZTo be Buried at Mangere Law Cemetery (Nyria Eville) Graveo Head Stone addedWilson McKay Authorised to Act on my behalfFunral Funeral Costs and their Costs when I am diedTo be Appointed Power of Attorney re HealthTo be Appointed Power of Attorney re CapitalCATHOLIC FuneralD J Eville 11.2.2020[7] Ms Wilson then used the information contained in the handwritten letter toprepare a further draft will that she sent to Mr Eville on 13 February 2020. Mr Evilledid not sign that document despite Ms Wilson sending a reminder letter to him on 27February 2020.[8] After Mr Eville died in May 2021 Wilson McKay made enquiries to determinewhether Mr Eville had made another will after consulting with Ms Wilson. Theseenquiries have not produced any other will. On this basis Mr McKay contends thatthe Court should validate the handwritten document because it represents Mr Eville'slast known testamentary intentions.Procedural issues[9] In a Minute issued on 19 October 2021 Wylie J directed that the proceeding beserved on the three entities named in the handwritten document dated 11 February2020. This duly occurred and the Fred Hollows Foundation subsequently filed anappearance reserving rights. Neither of the other parties served has taken any steps tooppose or support the present application.[10] The applicant's advisers did, however, receive a communication from solicitorsacting for Mr Eville's five first cousins. It initially appeared that they may wish tochallenge the application. On 14 December 2021, however, the cousins' solicitoradvised the applicant's counsel that his clients did not want to oppose the application.The application therefore remains unopposed.The law[11] Section 14 of the Wills Act provides as follows:14 High Court may declare will valid(1) This section applies to a document that—(a) appears to be a will; and(b) does not comply with section 11; and(c) came into existence in or out of New Zealand.(2) The High Court may make an order declaring the document valid, ifit is satisfied that the document expresses the deceased person'stestamentary intentions.(3) The Court may consider—(a) the document; and(b) evidence on the signing and witnessing of the document; and(c) evidence on the deceased person's testamentary intentions; and(d) evidence of statements made by the deceased person.[12] The principles to be applied in the present context are now well established. Inshort, the onus rests on the applicant to satisfy the Court on the balance of probabilitiesthat the document propounded as the last will of the deceased reflects the testamentaryintentions of the deceased.1 The Court is entitled to take into account any evidencethat may assist in determining whether the document expresses the testamentaryintentions of the deceased.2[13] In undertaking the enquiry under s 14 the Court is required to focus onsubstance and intention rather than form. This is necessary to ensure that "a personwho in good faith sets out to express testamentary intentions, should not have thosethwarted by technicalities.3Decision[14] The handwritten document that Mr Eville gave to Ms Wilson on 11 February2020 does not comply with s 11(4) of the Act because Mr Eville did not sign it in thepresence of two witnesses who then endorsed their own signatures on the documentin his presence. However, it plainly contains Mr Eville's instructions for the will thathe instructed Wilson McKay to prepare on his behalf. This is evident from thesequence of events Ms Wilson describes and from the fact that the document is headed"Will". The balance of the information contained in the document is also consistentwith that which would ordinarily be included in a will.[15] I am therefore satisfied that the handwritten document Mr Eville provided toMs Wilson on 11 February 2020 set out his last known testamentary intentions. Noother document or evidence has been found to suggest that he may have changed hismind subsequently and decided to alter the instructions contained in that document.[16] I therefore make an order under s 14 of the Act declaring the handwrittendocument dated 11 February 2020 to be a valid will.[17] It is also important that Mr McKay have access to funds to enable outstandinginsurance premia to be paid. This is necessary to preserve the assets of the estate. Itherefore make an order under r 7.55 of the High Court Rules 2016 that the sum of1 Kirner v Falloon [2015] NZHC 1873, at [20].2 Re Campbell (deceased) [2014] 3 NZLR 706, at [15].3 Re Estate of Wong [2014] NZHC 2554, at 24].$5,000 be released to Mr Mckay from BNZ bank account number [redacted] on thebasis that he is only to use those funds for that purpose.Lang J