Body Corporate 90247 v Wellington City Council

[2014] NZHC 962

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-4580 [2014] NZHC 862

In the estate of                   BRUCE ALLENBY TAYLOR (DECEASED)

Hearing:	On the papers
Counsel:	M J Dorset
Judgment:	30 April 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4 pm on the 30th day of April 2014.

Solicitors:           Jackson Reeves, Tauranga

Re Taylor (deceased) [2014] NZHC 862 [30 April 2014]

[1]      This is a without notice application for an order declaring a document a valid will, under s 14 of the Wills Act 2007 (the Act).

[2]      I consider that the application should be properly dealt with under Part 19 of the High Court Rules.  Under r 19.5, I permit the proceeding to be commenced by originating application and treat the present application as having been so commenced.

[3]      Under r 7.46 (which applies by virtue of r 19.10) I must determine whether the  application   can   be  properly  dealt   with   without   notice.     The  principal consideration in an application of this sort, so far as notice is concerned, is to ensure that all persons who will be affected by the making of the order have notice of the proceedings and a proper opportunity to be heard.   If the document sought to be declared valid is not declared valid, then the deceased will have died intestate. Accordingly, the persons who will be affected by the order sought are those who would succeed on an intestacy.  The deceased was survived by his widow and two sons.  On an intestacy they would be entitled to the entire estate.  All three of them are aware of the proceedings and none opposes the order sought.   In those circumstances I consider that the interests of justice require the application to be determined without serving notice of the application.

[4]      Mr Taylor died on 8 November 2013.   When Mrs Taylor went through his personal belongings, she found a document dated 20 August 2008, the document now sought  to  be declared  valid.    Enquiries  of law firms  in  both  Rotorua and Tauranga  did  not  result  in  any  other  will  being  located.    The  document  dated

20 August 2008 is in the form which indicates that it was intended to be a will.  It is described as the last will of the deceased, and contains provisions appropriate for inclusion in a will.   It does not meet the requirements of s 11 of the Act because, while it is signed by Mr Taylor, it is attested by only one witness.

[5]      The witness is Ms Devine, who was the office manager of the firm in which Mr Taylor had worked prior to his retirement in about 1993.  Ms Devine describes the circumstances of the making of the 2008 document.  Mr Taylor was a frequent visitor to the office after his retirement, and would often ask her or other staff to type

documents for him.  On 20 August 2008 he called into the office with a handwritten document that he wanted typed.   Ms Devine typed it for him and recognised it as being a will.  She typed it and printed a copy for him to read.  He read through the document and said that he was happy with it.  Ms Devine printed it as a final copy. Mr Taylor initialled the first three pages of the document and signed it on the final page,  in  Ms Devine’s  presence.    She  then,  at  his  request,  added  her  signature underneath his on page 4.

[6]      That evidence satisfies me that the document was intended by Mr Taylor as his will, and that it reflects his testamentary intentions.

[7]      There will be an order declaring valid as the will of Bruce Allenby Taylor the original of the document annexed as exhibit A to the affidavit of Gregory Keith Taylor sworn on 12 February 2014.

“A D MacKenzie J”