RE BRADLEY [2023] NZHC 2026

RE BRADLEY [2023] NZHC 2026 [1 AUGUST 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2023-409-346[2023] NZHC 2026UNDER the Wills Act 2007IN THE MATTER of the Estate of COLIN JOHN BRADLEYDeceasedAND an application to validate a willHearing: (Determined on the papers)Counsel: C L Houghton and C M O'Brien for the ApplicantsJudgment: 1 August 2023JUDGMENT OF OSBORNE JThis judgment was delivered by me on 1 August 2023 at 3.00 pm pursuantto Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The applicants, Luke David Bradley (Luke) and Patricia Margaret Haren(Margaret), seek an order pursuant to s 14 Wills Act 2007 (the Act) that a document(the document) be declared a valid will of Colin John Bradley (Colin) who died on22 March 2023. Colin was Luke's father. Margaret is Colin's aunt.[2] This application has been made on the papers without service to any otherparty.[3] This is an originating application made without notice on the ground that allpersons affected by the application have consented to it.Background[4] The document was drafted in the form of a will in February 2023 by Colin'ssolicitors, Anderson Lloyd. Colin attended a meeting on 16 February 2023 withMs Stone, a senior associate of Anderson Lloyd. Ms Stone's affidavit details herdiscussion with Colin in relation to his will and his trust. The meeting was promptedby Colin having terminal cancer. At the meeting, Ms Stone told Colin she wouldprepare a new will as per his instructions and email it to him.[5] Ms Stone, in her affidavit, recounts discussing with Colin his previous willfrom 2005 and how she had discussed with him the changes Colin wanted recorded inhis new will.[6] Ms Stone produces the file notes she took during the meeting and a copy ofa note that she made subsequently recording in more detail the matters discussed atthe meeting. Other than the file note incorrectly recording that the meeting was on15 February 2023, Ms Stone's evidence is that her notes are consistent with thedocument she sent to Colin. Ms Stone's evidence is that when she met with Colin hewas very clear about his wishes.[7] Ms Stone emailed the document she prepared to Colin on 17 February 2023along with a new statement of wishes relating to his trust saying: "Once you are happywith everything we can aim to meet next week some time".[8] By 14 March 2023 Ms Stone had not heard from Colin and she sent a follow-upemail that day. Ms Stone did not hear further from Colin. I note there was only eightdays before Colin died.[9] Ms Stone is not aware of any circumstances indicating that Colin had, after themeeting on 16 February 2023, changed his mind about any of his intentions as to whatwas to happen with his affairs which might indicate he did not approve either the newwill or the statement of wishes. Ms Stone's evidence is that the document wasprepared in accordance with Colin's instructions and that those instructions, to the bestof her knowledge, reflected Colin's testamentary intentions.Law[10] This Court has power to declare a document a valid will pursuant to s 14 of theAct. That section states: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.[11] Here, the requirements of s 14(1) are met. The testamentary document appearsto be a will, it came into existence in New Zealand and it does not comply with s 11of the Act as it was not signed by the will-maker.[12] Section 11 of the Act 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 behalfin 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 thatthe signature on the document is his or herown; or(B) another person directed by him or her signedthe document earlier on his or her behalf inhis 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 witnessesmay each state on the document, in the will-maker's presence, thefollowing:(a) that he or she was present with the other witnesses when thewill-maker—(i) signed the document; or(ii) acknowledged that he or she signed the documentearlier and that the signature on the document is hisor her own; or(iii) directed another person whose signature appears onthe document to sign the document on his or herbehalf in his or her presence; or(iv) acknowledged that another person directed by him orher signed the document earlier on his or her behalfin his or her presence; and(b) that he or she signed the document in the will-maker'spresence.(6) No particular form of words is required for the purposes of subsection(5).AnalysisWithout notice application[13] A preliminary question for consideration is whether the application may bedealt with on a without notice basis.[14] This application is made on a without notice basis on the ground that allpersons who may be potentially affected by the validation of the document haveconsented to the application.[15] Pursuant to r 7.46 High Court Rules 2016 I am satisfied the interests of justiceallow the application to be determined without it being served. The affected partiesare Colin's daughter, who was a beneficiary under both the 2005 will and the document(albeit with different entitlements under the document) and Colin's mother, who wasexecutor under the 2005 will. Both Colin's daughter and his mother have received acopy of the application and had the opportunity to take legal advice. They providedwritten consent to this application being made and confirmed they do not need to beserved with the documents in this proceeding.[16] Given those concerned had the opportunity to obtain legal advice, have had thenature of the application explained to them and confirmed they do not need to beserved, I am satisfied the application may be determined without being served.Invalidity of the document[17] As the document was unsigned by Colin, s 11(3) of the Act has not beencomplied with. The power under s 14 to declare the document a valid will is thereforeavailable.[18] It is not clear why Colin did not respond either to the email attaching the willor to the follow-up. What is clear is that he did not express any disagreement with thedocument. It may be inferred that his health deteriorated to the point where it was notpractical for him to deal with the completion of the document.[19] This is not the first time a will has been left unsigned either because thedeceased overlooked signing it or became too unwell to sign it. In the case ofRe Estate of Hickford, this issue was addressed by MacKenzie J in terms that wouldgenerally not support validation in cases where execution of the will document wassimply overlooked or forgotten about:1[9] The fact that the deceased did not make an appointment to sign thewill might be consistent with any one of three broad possibilities:(a) That he had changed his mind about making a will;(b) That he overlooked or forgot about signing the will; or(c) That he did not think that he needed to do anything further.[10] I consider that, to meet the statutory test, the case must fall within thethird possibility. Clearly, the first possibility would mean that the documentdid not express his testamentary intentions. In my view, the second possibilitymight not meet the statutory test. I consider that the third possibility wouldmeet the test. If the deceased thought that he had made an effective will, andthat the reason that the document was unsigned was a mistaken view thateverything necessary had been done, the Court could be satisfied that thedocument did express the deceased's testamentary intentions despite the lackof a signature.[11] I consider therefore that the question to be determined is whether I canbe satisfied, on the balance of probabilities, that the third possibility is thecorrect one. As the Supreme Court has made clear in Z v Dental ComplaintsAssessment Committee [2009] 1 NZLR 1, the balance of probabilities isa single standard, but as a matter of fact, Judges require stronger evidence ofsome allegations before the issue can be proved to their reasonablesatisfaction. I consider that, because of the importance of a declaration that1 Re Estate of Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009.a will be declared valid, there must be cogent evidence that the documentreflects the deceased's testamentary intentions.[20] However, MacKenzie J was to later explain these observations. In Re Fraser,the will was unsigned, seemingly because the deceased did not get around tocompleting the process.2 Validation was found to be appropriate. MacKenzie Jobserved:[7] In Re Gladwin v Public Trust, Woolford J upheld a will in somewhatsimilar circumstances, although in that case the application was opposed. Indoing so, Woolford J referred to an earlier judgment of mine in Re Estate ofHickford, where I had referred to three broad possibilities as to why noappointment to sign a will had been made by the deceased. These were:(a) That he had changed his mind about making a will;(b) That he overlooked or forgot about signing the will; or(c) That he did not think that he needed to do anything further.[8] In stating those possibilities, I did not make it sufficiently clear thatI intended to confine my remarks to the circumstances of that case, I did notintend to suggest that those would be the only possibilities which might arisein any case. As Woolford J, in my view correctly, recognised, there are otherpossibilities. Each case must be considered on its own facts.[9] I am satisfied that the document prepared in accordance with thedeceased's instructions given on 27 April 2011 expressed the deceased'stestamentary intentions at the time it was drafted. I am satisfied that the lackof signature is not evidence of a change of mind on the part of the deceased.Accordingly, I am satisfied that, at the date of his death, the documentexpressed the deceased's intentions.[21] As Re Fraser indicates, and s 14(2) of the Act requires, the central inquiry hereis whether the unsigned will document expresses the deceased's testamentary intentionin the circumstances of each case.[22] Here, Ms Stone's evidence establishes that the document correctly representedColin's testamentary intention.Orders[23] I dispense with service of the proceeding.2 Re Estate of Fraser HC Napier CIV-2011-441-700, 20 December 2011.[24] I declare that the document sent by Anderson Lloyd to Colin John Bradley asa draft will on 17 February 2023 is the valid will of Colin John Bradley.Osborne JSolicitors:Anderson Lloyd, Christchurch