LAVER V THE PUBLIC TRUST HC AK CIV-2010-404-6232

LAVER V THE PUBLIC TRUST HC AK CIV-2010-404-6232 2 June 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-6232UNDER the Administration Act 1969 and the WillsAct 2007IN THE MATTER OF the ESTATE OF ALBERT LEONARDLAVERBETWEEN THERESA LAVERPlaintiffAND THE PUBLIC TRUST AS ATTORNEY OFHARVEY ROBERT LAVERDefendantHearing: 2 June 2011Counsel: A Hall for the PlaintiffK Davenport for the DefendantJudgment: 2 June 2011Reasons: 3 June 2011JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 3 June 2011 at 1:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarSolicitors: Mr A Hall, Solicitor, Manukau Ms K Davenport, Barrister, Auckland[1] This case concerns the estate of Mr Albert Laver. He died on 20 June 2008 without leaving a valid will; that is to say, a will complying with the formal requirements of the Wills Act 2007 (the Act).[2] Mr Laver did leave a document which comes within the definition of a will ins 8 of the Act. I will refer to this as the "informal will". The applicant, Mrs TheresaLaver, is Mr Laver's widow. Mrs Laver seeks an order declaring the informal will tobe a valid will pursuant to s 14 of the Act.[3] Mr and Mrs Laver were married on 30 June 1975. They have no children. Mr Laver had one son of an earlier marriage, Harvey Robert Laver. Mr Harvey Laver is incapacitated. The Public Trust is his property manager under the Protection of Personal and Property Rights Act 1988. The Public Trust has been served and was represented on this application by Ms Davenport.[4] There is no evidence that Albert Laver, following his marriage to Mrs Laver, ever made a valid will. The informal will was found by Mrs Laver following herhusband's death. It is in his handwriting. It is as follows:Sunday 22/2/87Dear TheresaIn case of unforeseen [sic] circumstances I leave all my worldly possessions to you my wife.Except for um U/K Hason Shares which I leave to my son Harvey Robert Laver.Check under base of writing cabinet for funeral expenses.All my love to you"See you later !!!!!"Your loving husband Bert xxxxx xxxxx xxxxx[5] The Act came into force on 1 November 2007. It applies to this will because of s 4 which provides that the Act applies to the wills of persons who died on or after 1 November 2007.[6] Section 40 of the Act contains transitional provisions relating to wills made before 1 November 2007 by persons who died on or after 1 November 2007. Section 40(2)(k) provides that s 14 of the Act does not apply to a will made before 1 November 2007. In consequence s 14 does not apply to Mr Laver's informal will.As a result this informal will cannot be validated under s 14.[7] Mr Hall submitted that, notwithstanding the clear effect of s 40(2)(k) the Court could validate the informal will by application of principles discussed in casesdealing with informal wills under the Wills Act 1837 (UK). Mr Hall referred, inparticular, to Re Young (deceased)1 and Re Stewart (deceased).2 The principlesdiscussed in those cases do not assist the applicant. Because the informal will in thiscase is governed by the Act, for it to be a valid will it must either comply with s 11 orbe declared valid under s 14: see s7. It does not comply with s 11 because there areno witnesses to the informal will. And for reasons already recorded, that significantomission cannot be overcome by the application of s 14.[8] I also note that the two cases referred to by Mr Hall involved testamentarydocuments with some informality, but in both cases there were two witnesses. Tovalidate the informal will in this case would in my judgment require the Court toignore the clear terms of the Act, and that cannot be done. In Re Stewart Tompkins Jreferred to the observation of Sir James Wilde in Sweetland v Sweetland3 that "itdoes not become the Court, in a laudable anxiety to give effect to the document,to twist or distort the plain meaning of the statute by ingenious construction, andvirtually break the law to mend the testator's blunder".[9] The application is accordingly dismissed.1 [1969] NZLR 454.2 [2010] 1 NZLR 838 – a note of a judgment of Tompkins J delivered 17 September 1991.3 (1865) 4 SW&TR 6 at 9; 164 ER 1416 at 1417.[10] Ms Davenport sought costs on behalf of the Public Trust as attorney for Harvey Laver. There were good grounds for that application, but it is unnecessary to set them out. I consider that the appropriate course at this stage is to reserve the question of costs. Although this proceeding is otherwise at an end, there are on-going matters relating to Albert Laver's estate. If it is considered appropriate the Public Trust may reapply for costs in due course._________________________________ Peter Woodhouse J