RE COLLINS [2020] NZHC 2550

RE COLLINS [2020] NZHC 2550 [29 September 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2020-485-507[2020] NZHC 2550IN THE MATTER OF Section 14 of the Wills Act 2007andIN THE MATTER OF the estate of GORDON ALFREDILLINGWORTHandIN THE MATTER OF an application by MICHAEL BRIANCOLLINSApplicantOn the papersCounsel: D Miller for ApplicantJudgment: 29 September 2020JUDGMENT OF MALLON JThe application[1] Michael Collins applies for an order that a document dated 18 April 2020 bedeclared valid as the last will of Gordon Alfred Illingworth. Mr Collins is named asone of the executors in that document. Leave is also sought for the application to bemade without notice to any other person.The evidence[2] Gordon Alfred Illingworth (the deceased) died on 23 April 2020.[3] Mr Collins had known the deceased for approximately 20 years. The deceasedbecame unwell during the Government's COVID-19 alert level 4 restrictions. Hespent several weeks in Dunedin Hospital.[4] On 15 April 2020 the deceased asked Mr Collins to check that his will was inorder and said that he wished to make amendments to it. The deceased initially thoughthis will was at his home. Mr Collins was unable to find it there. The deceased thenexplained that it was most likely with his lawyers, Gallaway Cook Allan. On 17 April2020 Mr Collins contacted Devon Miller, a partner with Gallaway Cook Allan,explaining that the deceased was unwell and wished to make changes to his will. Thedeceased was a client of Ms Miller and known personally by her.[5] On that same day, Ms Miller spoke with the deceased via a Facetime call fromhis bed at Dunedin Hospital. During the call, the deceased explained to Ms Miller thechanges he wanted to make to his will. Ms Miller arranged to make those changes.The revised will was emailed to Mr Collins. Mr Collins printed out the revised willso that the deceased had a hard copy at Dunedin Hospital. The deceased gaveMr Collins no indication that he was thinking about any further changes to the will.[6] On 18 April 2020, at around 4 pm, Ms Miller contacted the deceased via aFacetime call in the presence of Mr Collins. Mr Collins held the camera so thatMs Miller could see the deceased and the will. Ms Miller explained the changes tothe will and obtained confirmation from the deceased that the revised will containedthe changes he had wished to make.[7] Due to the alert level 4 restrictions, Ms Miller was not able to be present withthe deceased to witness the revised will. Nor did she have another adult witnessavailable at her residence to assist with witnessing the will. Due to the deterioratingphysical health of the deceased, Ms Miller considered there was a sense of urgency toget the will signed.[8] The following procedures for witnessing the will were adopted:(a) Ms Miller was satisfied that the deceased was the person on the call.(b) The deceased held up to the camera each page of the will intended tobe signed and witnessed. Ms Miller observed that the document wasthe revised will that had been prepared for the deceased.(c) Ms Miller then watched the deceased place the document down on atray in view of the camera and witnessed the deceased initial the firstpage, sign the second page in full and date the cover page. Thedeceased then held up to the camera each page of the signed will.(d) Ms Miller observed the deceased place the document on a tray in viewof the camera.(e) Once the deceased had signed the will, Mr Collins placed the will intoan envelope and delivered it to the mailbox at the home address ofMs Miller at 6.05 pm on 18 April 2020. He also sent a text message toMs Miller to say that the will was there for collection.(f) Ms Miller replied to Mr Collins' text message at 6.22 pm toacknowledge that she had collected the will.(g) Ms Miller was satisfied that this was the same document that she hadseen the deceased sign. She immediately witnessed the will and held itsecurely in her home office.[9] The 2020 revised will:(a) revokes all former wills and other testamentary dispositions made bythe deceased;(b) appoints Michael Collins, Devon Miller and David Smillie as executorsand trustees;(c) after payment of debts, funeral expenses, administration expenses, andany duties, gives the deceased's residuary estate in two equal parts to:(i) the children of the late Gaynor Howison; and(ii) Sinead Church, Lorraine Cooke, Faye Bailey andGary Temiaroa.[10] The deceased had made an earlier will dated 19 April 2016. That alsoappointed Mr Collins, Ms Miller and Mr Smillie as his executors and trustees. Afterpayment of debts, expenses, estate duties or other taxes, it gifted the residue of theestate equally into five parts:(a) one part for Sinead Church;(b) one part for the children of the late Gaynor Howison; and(c) one part for each of Lorraine Cooke, Faye Bailey and Gary Temiaroa.[11] All beneficiaries of the 19 April 2016 will and the proposed 2020 will havebeen advised of their right to seek independent legal advice and have consented to anorder being made declaring the 2020 document to be a valid will. Mr Collins has madereasonable inquiries as to the existence of a parent or child of the deceased in additionto those already known to Mr Collins. The result of his inquiries was that he did notdiscover any such parent or child.The order[12] The document has not been executed in the manner prescribed in s 11 of theWills Act 2007 because it was signed via audio-visual link and has not been signed inthe presence of two witnesses. The document appears to be a will. It came intoexistence in New Zealand. I am satisfied the document expresses the deceased'stestamentary intentions, and the consent of all persons who may be potentially affectedby the granting of the order has been given. In these circumstance it is appropriate toexercise the jurisdiction under s 14 of the Wills Act.[13] Accordingly, I order that the document dated 18 April 2020, a copy of whichis marked "A" and attached to the affidavit of the applicant and the affidavit of DevonMiller filed in support of this application, is declared valid as the last will of thedeceased. I also grant leave for the application to be made without notice to any otherperson.Mallon J