Estate of Ng

[2012] NZHC 2914

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5852 [2012] NZHC 2914

IN THE MATTER OF     the Wills Act 2007 and the Administration

Act 1969

AND

IN THE MATTER OF      LOO SHE NG, deceased

Hearing:         On the Papers

Counsel:         J Wickes for Applicant

Judgment:      8 November 2012

JUDGMENT OF KATZ J

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 3 p.m. on 8 November 2012.

Solicitors:           Loo & Koo, Auckland – [e-mail]

LOO SHE NG HC AK CIV-2012-404-5852 [8 November 2012]

[1]      This is a “without notice” application for an order under s 14 of the Wills Act

2007  to  declare  valid  an  unexecuted  will  of  Loo  She  Ng  (“Mrs  Ng”).    The application is supported by two affidavits from Hine Ng, Mrs Ng’s only child, as well as an affidavit and a memorandum from Mr Arthur Loo who was Mrs Ng’s legal adviser for some 20 years until the time of her death.

[2]      The facts, as they appear from Mr Loo’s affidavit, are as follows.

[3]      Mrs Ng had one child, a son, Hine Ng.   She also had a sister, Baolian Lu (who resides in China) and three brothers.  Her brothers Shaochen Lu and Shaoting Lu reside in New Zealand.  Her brother Shoguang Lu resides in China.

[4]      On 3 June 2010 Mr Loo visited Mrs Ng at her home and she gave him instructions to prepare a will for her.  He told her he would go back to his office, prepare the will in terms of her instructions and come back to see her with the completed will and two witnesses in order for the will to be signed and witnessed.

[5]      On Mr Loo’s return to the office he drafted a will in terms of Mrs Ng’s instructions.  He intended to take a legal executive at his office who speaks Chinese, together with another employee, back with him to Mrs Ng’s home in order to witness the will.  However, shortly after his visit to Mrs Ng, the legal executive concerned became seriously ill and Mr Loo put the matter aside until her health improved. Unfortunately he then forgot about the matter and Mrs Ng died on 21 November

2011 without the will having been signed.  Mr Loo’s evidence is that he is convinced the unexecuted will which he has annexed to his affidavit reflects Mrs Ng’s wishes. He has also provided the Court with a copy of the handwritten notes he made at the meeting with Mrs Ng, which are consistent with the draft will.

[6]      Mr Loo has advertised in The Law News to see whether Mrs Ng had another will but there has been no response to that advertisement. Accordingly it is his belief that the draft will he prepared is Mrs Ng’s last will and testament.

[7]      This  application  is  made  “without  notice”  to  any other  party.    The  first question therefore is whether that course is appropriate or whether there are any further persons who should be notified of the application.

[8]      Given there is no other valid will, if the draft will is not declared invalid Mrs Ng will have died intestate.   Part 3 of the Administration Act 1969 applies to the distribution of intestate estate.   In this case, because Mrs Ng had no husband or surviving de facto partner, in the event of intestacy, all of her estate would be held on statutory trusts for her only child, Mr Hine Ng.  Accordingly his interests are the only interests that could be prejudiced by the granting of probate of the draft will.

[9]      As no other person could be prejudicially affected by the making of an order it is not necessary for them to be represented in these proceedings.  It is therefore not necessary to provide notice of the application to Mrs Ng’s siblings.  I am satisfied, in terms  of  r  7.45  of  the  High  Court  Rules,  that  the  application  affects  only  the applicant, Arthur Loo (to the extent that he is named as executor in the draft will) and Mr Hine Ng, who has filed two affidavits consenting to an order under s 14 of the Wills Act 2007, declaring the draft will valid.

[10]     I now consider the merits of the application.   Section 14 of the Wills Act

2007 provides as follows:

(1)     This section applies to a document that–

(a)     appears to be a will; and

(b)     does not comply with section 11; and

(c)     came into existence in or out of New Zealand.

(2)     The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

(3)     The Court may consider–

(a)     the document; and

(b)     evidence on the signing and witnessing of the document; and

(c)     evidence  on  the  deceased  person’s  testamentary  intentions;

and

(d)    evidence of statements made by the deceased person.

[11]     The requirements of s 14 are met in this case:

(a)      The document exhibited to Mr Loo’s affidavit appears to be a will.  It is in the form of a will and includes all the provisions usual in a will. It 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 dies.  The only deficiency in the document is that it is not signed and witnessed as required by s 11(2).

(b)The document does not comply with s 11 and accordingly falls within s 14(1)(b).

(c)       The document was prepared in New Zealand: s 14(1)(c).

[12]     The next issue is whether I am satisfied that the document expresses Mrs

Ng’s testamentary intentions.

[13]     Mr Loo’s evidence is that the will was drafted by him, based on Mrs Ng’s instructions.  It is a fairly straightforward document, comprising only one page.  The will has been drafted by a solicitor who appears to have, in effect, “filled in the gaps” in his own handwriting on a partially pre-typed form.  Mr Loo’s evidence is that it records Mrs Ng’s instructions to him.   This is supported by the contemporaneous notes he made of his meeting with Mrs Ng.

[14]     I note that Mrs Ng does not appear to have followed up with Mr Loo his failure to  bring the completed will  around to  her for execution.    However,  the evidence is that the matter was left in Mr Loo’s hands and  I draw no adverse inference from the fact that Mrs Ng did not follow the matter up.  There is certainly no evidence to suggest that Mrs Ng had any change of mind after her meeting with Mr Loo or that she no longer wished to sign a will in terms of the instructions she had given.

[15]     Mrs Ng’s son, Hine Ng, supports the draft will being probated.  He is the only person who would be disadvantaged by the will being probated, as opposed to the deceased having died intestate.

[16]     Mr Hine Ng’s evidence is that he is the only child of Mrs Ng.  His father died about 30 years ago and his mother did not remarry and was not living in a de facto relationship at the time of her death.   She had no other children, but did have the siblings I have referred to above.  Mr Hine Ng has read the unsigned will prepared by Mr Loo and is convinced that that document represents his mother’s testamentary wishes.  He therefore supports the application to have the draft will recognised as her last will and testament.   He supports probate being granted and her estate being administered in terms of that document.

[17]     Following his initial affidavit Mr Hine Ng filed a further affidavit in response to a query from the Court confirming that he has (now) taken independent legal advice  regarding  his  support  of  the  application.    Mr  Hine  Ng  confirms  that, following such advice, he still supports this application.   He provides further information regarding his mother’s estate and confirms his belief that it was his mother’s wish to benefit her siblings as well as her son.

[18]     In conclusion, I am satisfied in terms of the test in s 14(2) of the Wills Act

2007 that the draft will, a copy of which is annexed to Mr Loo’s affidavit, reflects

Mrs Ng’s testamentary intentions.

[19]     I accordingly make an order declaring valid, as the last will of Mrs Loo She

Ng,  the  document  marked  “A”  attached  to  the  affidavit  of  Mr  Loo  (sworn  21

September 2012).

Katz J