Estate of Lawrence

[2014] NZHC 5

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV2013-485-009104 [2014] NZHC 5

IN THE ESTATE               of MARIKA ELIZABETH LAWRENCE, of Auckland, Logistics Administrator, deceased

AND

IN THE MATTER             of an application under Section 13 of the

Wills Act 2007

Hearing:                   On the papers. Counsel:   D O Jones Judgment:      9 January 2014

JUDGMENT OF TOOGOOD J

Solicitors:

Jones Young, Auckland

ESTATE OF LAWRENCE [2014] NZHC 5 [9 January 2014]

[1]      The applicants Peter John Coakley, Katherine Janice Lawrence and Gina Patricia Carr have made an interlocutory application without notice for validation of an unsigned will prepared for the deceased, Marika Elizabeth Lawrence, who died at Auckland on 1 July 2013.

[2]      At  the  time  of  the  deceased’s  death,  Mr  Coakley  was  her  partner. Ms Lawrence is her daughter and Ms Carr is her sister.

[3]      In late 2009 the deceased was diagnosed with a terminal lung disease and by mid-February 2013 she was very unwell.   Ms Carr, who is an employee of Jones Young, solicitors, received instructions from the deceased about finalising the terms of her will and dealing with other personal matters.  On 1 July 2013, Ms Carr was provided with the final details to be included in the deceased’s will.

[4]      A will was prepared in accordance with those instructions and taken to the deceased in the hospital.  In the presence of the deceased’s daughter Katherine, the deceased  confirmed  to  Ms  Carr  that  she  was  happy  with  the  contents  of  the document which had been drafted.  However, she received a large number of visitors at the hospital at that time and it was agreed that the will would be executed later in the day.    Unfortunately,  the deceased’s  condition  rapidly declined  and  she died before executing the will.

[5]      I am satisfied that there is no previously executed will for the deceased.  The estate is of a modest nature comprising a residential property with a net equity of around $85,000 and a vehicle having a net value after financing of approximately

$5,000.

[6]      In the event of an intestacy, Mr Coakley would be the sole recipient of the net proceeds of realisation of the remaining assets in the estate, apart from items of personal property, of approximately $90,000.

[7]      I  am  satisfied  that  the  deceased’s  instructions  to  Ms  Carr  were  that  the proceeds from the sale of her motor vehicle should be divided between the applicants and two friends of the deceased; that other personal items should be distributed

according to specific directions; and that the residue of the estate should be divided equally between Mr Coakley and Katherine.  The deceased’s instructions regarding the mortgage over the property, mortgage payments, and the payment of rent were left to be dealt with by a property-sharing agreement.

[8]      I am further satisfied that Mr Coakley’s view is that the deceased’s wishes as

set out in the draft will should be met.

[9]      The draft will is not a valid will because it fails to meet the requirement for signing and witnessing as provided in s 11 of the Wills Act 2007.

[10]     On the basis of the affidavits provided by the applicants and consistently with the principles appearing in the cases referred to me by Mr Jones’s comprehensive memorandum,1 I am satisfied that:

(a)       the application affects only the applicants;

(b)it is in the interests of justice that the application for validation be determined without serving notice of the application on any other person; and

(c)      that the draft will attached to Ms Carr’s affidavit accurately reflects the deceased’s testamentary intentions.

[11]     Accordingly, I make a declaration under s 14 of the Wills Act that the undated and unsigned document attached and marked “F” to the affidavit of Gina Patricia Carr, sworn on 18 September 2013 and filed in support of this application, is the

valid will of Marika Elizabeth Lawrence who died at Auckland on 1 July 2013.

Toogood  J

1      Re Hickford HC Napier CIV-2009-441-369, 13 August 2009; Re Estate of Brown HC Auckland CIV-2010-404-006328, 13 October 2010; Re Estate of Osborne [2012] NZHC 1846; Lauder v Lauder [2012] NZHC 3155; Re Estate of Ng [2012] NZHC 2914; Re Tutaki HC Hamilton CIV-

2010-419-1208, 13 May 2011; Re Estate of Fraser HC Napier CIV-2011-441-700, 20 December
2011.