Huntley

[2024] NZHC 1722

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-221

[2024] NZHC 1722

UNDER

Wills Act 2007

IN THE MATTER OF

the estate of Jonathan Murdock Huntley

BETWEEN

HAZEL ALICE HUNTLEY

Applicant

Hearing:	On the papers
Appearances:	B R D Burke for Applicant
Judgment:	27 June 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 27 June 2024 at 9.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE HUNTLEY [2024] NZHC 1722 [27 June 2024]

[1]                 This is an application for an order  declaring  that  the  draft  will  of  Jonathan Murdock Huntley (the deceased) dated 24 October 2023 is the valid will of the deceased under s 14 of the Wills Act 2007 (the Act).

[2]                 The applicant, Hazel Alice Huntley (Hazel), is the wife of the deceased and is appointed as the deceased’s executor and trustee in the draft will.

Relevant background

[3]                 The deceased began a relationship with Hazel in 2016 and they were married on 9 January 2018. The deceased has two children from a previous relationship, Lewis Rohan Huntley (Lewis) and Keira Jade Huntley (Keira).

[4]The deceased did not have a previous valid will.

[5]                 The deceased prepared the draft will using the Public Trust online service, about a year before his death. It was not executed when it was drafted because he was facing serious health issues at the time, the deceased having been diagnosed with a terminal illness which resulted in a suppressed immune system.

[6]                 The draft will appoints his wife, Hazel, as executor and trustee of the deceased’s estate. It gives the residue of his estate to his wife, if she survives him, but if she does not survive him for 30 days, then the balance is to go to his children that survive him and if more than one, then as tenants in common and equal shares.

[7]                 Unfortunately, on Monday 23 October 2023, the deceased was admitted to hospital having contracted pneumonia. He remained there until he died. On the day he was admitted to hospital, given the risk he would not survive the infection, he decided to look up his draft will again. His wife Hazel explains it was brought up on the computer that day and read out to him. He confirmed that the draft will still reflected his wishes and she printed it at the hospital.

[8]                 The deceased arranged to sign the draft will in the hospital on 24 October 2023. The following people were present in the room at the time:

(a)Mark Robertson-Browne (Mark), a friend of the deceased;

(b)Nicola Anne Liptrot (Nicola), the deceased’s sister;

(c)Allan Richard Airey (Allan), the deceased’s father in law; and

(d)Lewis, the deceased’s son.

[9]                 Affidavits have been provided by Mark, Nicola, Allan and Lewis. They all explain that the deceased was not physically able to sign his name on the will as he was too weak. However, Mark showed the draft will to the deceased and he confirmed that the document was his last will in testament and that if he were able to sign the document he would have done so. This was recorded on video. Following this exchange, Nicola and Allan signed the will as witnesses.

[10]              A transcript of what was recorded on the video is annexed to Lewis’ affidavit and marked ‘A’. All those present have each filed an affidavit confirming that the deceased acknowledged that the draft will expressed his testamentary intentions.

[11]The deceased died two days later, on 26 October 2023.

Service

[12]              As the only affected parties (given they would be entitled to a share of the estate on intestacy), the application was served on the deceased’s children, Lewis and Keira. They have both since filed statements of consent to the application. I am satisfied, therefore, that all affected persons have been served with these proceedings.

The law on validation of a will

[13]Section 14 of the Act provides:

14       High Court may declare will valid

(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.

1. 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.

1. Section 11 of the Act provides:

11       Requirements for validity of wills

(1)A will must be in writing.

(2)A will must be signed and witnessed as described in subsections (3) and (4).

(3)The will-maker must—

(a)sign the document; or

(b)direct another person to sign the document on his or her behalf in his or her presence.

(4)At least 2 witnesses must—

(a)be together in the will-maker’s presence when the will- maker—

(i)complies with subsection (3); or

(ii)acknowledges that—

(A)he or she signed the document earlier and that the signature on the document is his or her own; or

(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)each sign the document in the will-maker’s presence.

(5)As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:

(a)that he or she was present with the other witnesses when the will-maker—

(i)signed the document; or

(ii)acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or

(iii)directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

(iv)acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)that he or she signed the document in the will-maker’s presence.

(6)No particular form of words is required for the purposes of subsection (5).

[15]              In the present case, the draft will was not signed by the deceased and therefore it does not comply with s 11 of the Act. Furthermore, while two witnesses have signed the document, they did not, of course, either:

(a)witness the deceased signing the document; or

(b)witness the deceased confirming that he had signed the document earlier; or

(c)confirmed that another person directed by him signed the document earlier in his presence;

as required by s 11(4) of the Act.

[16]              However, I am satisfied that there is ample evidence that the will reflects the deceased’s testamentary intentions at the time of his death noting the evidence of him confirming this to his immediate family in hospital two days before his death.

[17]              The property at 26 Tomrich Street was jointly owned by the deceased and his wife so ownership has passed to the deceased’s wife by survivorship and the assets of the estate largely comprise funds in bank accounts and Kiwisaver funds, less various debts and funeral expenses, making the net value of the deceased’s estate approximately $190,000. While the deceased’s children do not benefit from the estate, I note the position is a little different from the position which would have resulted on intestacy, but in any event, as La Hood J said in Hunter v Hunter, “the detriment to those who would otherwise have benefited from intestacy is of limited weight”, where the Court is satisfied that the will is consistent with the deceased’s wishes.1

[18]              Accordingly, being satisfied that the requirements of s 14 of the Act are met, I make the following orders:

(a)the draft will of Jonathan Murdock Huntley dated 24 October 2023 and attached as exhibit B to the affidavit of Hazel Alice Huntley sworn on 1 May 2024, is a valid will of the deceased.

Solicitors:

Harmans, Christchurch

1      Hunter v Hunter [2024] NZHC 627 at [24].