Clarke (deceased)

[2016] NZHC 78

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-18 [2015] NZHC 78

UNDER	Section 14 of the Wills Act 2007
IN THE ESTATE OF	EDWARD JAMES CLARK

Hearing:	On the papers
Counsel:	R J Poulgrain
Judgment:	4 February 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

4 pm on the 4th day of February 2016

RE CLARK (DECEASED) [2015] NZHC 78 [4 February 2016]

[1]      On or soon after 11 July 2015 Mr Clark committed suicide.  He left behind a very touching note for his family and a handwritten, signed but unwitnessed document that was headed:

MY WILL

Edward James Clark

11 July 2015

[2]      The contents of the document were brief.  It said:

I want my father to receive my money.

I want my mother to receive my share of the house in Mt Eden.

I would like to be cremated, but if family prefers, I could be buried near

Thames.

I suggest that my sister Susie execute this will (sorry for the burden). Farewell,

[3]      Mr Clark’s sister (who is known as Susie) has now applied for an order under s 14 of the Wills Act 2007 (the Act) declaring this document to be a valid will.

[4]      The first requirement of s 14(1) is that the document appears to be a will.  In my view the document whose contents I have set out above is quiet plainly of that kind, in terms of its contents, the circumstances of its writing and the circumstances of Mr Clark’s death.  The circumstances in which it was found suggest that it was intended by him to be an expression of his wishes to be given effect following his death, and it accordingly meets the requirements of s 8(1) of the Act that it be a document made by a natural person which disposes of the property of that person when he or she dies.

[5]      The second requirement of s 14(1) is that the document does not comply with s 11, which requires that the will be signed and witnessed by at least two witnesses. As I have said, the document presently at issue is signed but it is not witnessed.  It therefore does not comply with s 11.

[6]      The third requirement of s 14(1) is that the document came into existence in or out of New Zealand.  It is clear from the evidence that this document was written in Auckland.

[7]      Under s 14(2) the Court may make an order declaring the document valid if it is satisfied that the document expresses the deceased’s testamentary intentions. I am so satisfied here. The document expresses in clear terms Mr Clark’s wish that his mother should  receive  his  share of his  house  and  his  father should  receive his “money” by which it may be supposed he meant everything else.  It is beyond doubt that the intended dispositions were to take effect following Mr Clark’s death. There is no possibility of a subsequent change of intention.

[8]      The remaining question is the appropriate procedure. This application has been made without notice but Mr Clark’s parents (who are the sole beneficiaries under the invalid will) have consented to the application.  The evidence is (his sister having made all reasonable searches and inquiries) that Mr Clark did not have a partner and had no children or grandchildren.

[9]      As Mr Clark had no previous will, the appropriate inquiry has been as to the existence and consent of those persons who would be entitled to succeed on his intestacy.  In these circumstances, I am satisfied that the order sought may properly be made on a without notice application; in terms of r 7.46 of the High Court Rules, the application affects only Mr Clark’s parents who have consented.   No purpose would be served by requiring the application to be served on any other person.

[10]     There  will  therefore  be  an  order  declaring  valid,  as  the  last  will  of

Edward James Clark, the document annexed (marked “B”) to the affidavit of Ursula

Jayne Clark sworn on 21 December 2015.

Solicitors:           Miller Poulgrain, Thames.

“Rebecca Ellis J”