In the Matter of Paul Stewart Hyslop Dianne Ruth Downey Applicant

[2024] NZHC 2597

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-470

[2024] NZHC 2597

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER

of PAUL STEWART HYSLOP

DIANNE RUTH DOWNEY

Applicant

Hearing:	9 September 2024
Counsel:	D K Wilson for Applicant
Judgment:	9 September 2024

JUDGMENT OF ISAC J

[Validation of will under s 14 Wills Act 2007]

Introduction

[1]                 The applicant, Ms Dianne Downey, has applied for an order validating a will. The application has been served in accordance with directions as to service previously made by the Court.1 The parties served, all sons of the deceased, the late Mr Paul Hyslop, have taken no steps and did not appear at the call of the proceeding before me in the Judge’s Chambers List this morning.

1      In an affidavit of service of Brandon Prinsloo of 29 August, Mr Prinsloo deposed that he served a copy of the relevant papers on Simon, Andrew, Daniel and Mark Hyslop by sending the documents to their email addresses on 15 August 2024. A covering letter which accompanied the papers advised those served to seek legal advice, and that the application would be heard on 9 September 2024. The letter went on to say “Should you wish to be heard during the application, we strongly recommend that you seek legal advice as soon as possible”.

Estate of Hyslop, P S [2024] NZHC 2597 [9 September 2024]

[2]                 Accordingly, counsel for the applicant, Mr Wilson, sought an order validating a document as the will of Mr Hyslop on the papers. Mr Wilson advised me that his office had received no response to his firm’s letter and the accompanying papers, and my enquiry of the Registrar confirmed that the Court has received no communications from Mr Hyslop’s sons.

The application to validate the will

[3]                 Four affidavits have been filed in support of the application. The relevant background is this. In 2006 Mr Hyslop began a relationship with the applicant,    Ms Dianne Downey. On 15 February 2010, Mr Hyslop executed a will in which he left half of his estate to Ms Downey, and the other half to his four children. Some two years later, on 12 December 2012, Mr Hyslop and Ms Downey were married. Mr Hyslop then executed a further will in March 2017.

[4]                 In April 2020, Mr Hyslop was on a waiting list for heart surgery. His 2017 will with various proposed amendments to it noted in handwriting was emailed by Mr Hyslop and Ms Downey to his solicitor for preparation of a new will. However, Ms Johnstone, the solicitor, deposes that she did not have an opportunity to review the instructions in relation to the new will. Then on 9 September 2022, Mr Hyslop was advised his heart surgery was to take place six days later, on 15 September. This appears to have resulted in some urgency.

[5]                 That day, Ms Downey contacted Ms Johnstone again about changing Mr Hyslop’s will. Following discussions about how the new will should be drafted, Ms Downey prepared the document and emailed it to Ms Johnstone for review. Further communication and amendment then followed. The will was then signed under some urgency later the same day, but with only one witness.2 That was so even though, as the affidavit evidence in support of the application establishes, another person was present at the time of signing, and could have acted as a witness.

2      The evidence establishes that Mr Hyslop and Ms Downey owned and managed an orchard at the time, and some of the office staff were present on the day and were involved in various discussions about the will.

[6]Mr Hyslop then died on 9 April 2024.

Relevant legal principles

[7]                 Under s 14 of the Wills Act 2007 (the Act) the High Court may declare a document to be a will if the following conditions are satisfied:

(a)the document appears to be a will; and

(b)the document in question:

(i)does not comply with s 11 of the Act;

(ii)came into existence in or out of New Zealand;

(c)the Court is satisfied that the document expresses the deceased person’s testamentary intentions.

[8]Pursuant to s 11 of the Act, for a will to be valid it must be:

(a)in writing;

(b)signed by the will-maker or by someone appointed on their behalf in the presence; and

(c)signed with two witnesses present who then sign the document in the presence of the will-maker.

[9]                 These formal requirements under s 11 have not been satisfied in respect of the September 2019 document.

[10]             Before validating an informal document, the Court must evaluate the relevant circumstances and reach a conclusion based on cogent evidence that the document

expresses the deceased person’s testamentary intentions.3 The Court must focus on the will-maker’s intentions rather than the formal steps necessary to implement the same.

[11]In undertaking its evaluation the Court may consider the following:4

(a)the document;

(b)evidence relating to any signing or witnessing of it;

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

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

[12]             These factors are non-exhaustive and the Court may consider any further evidence which assists it in determining whether the document expresses the testamentary intentions of the deceased. Such evidence may include how the document came to be prepared, reasons as to why it was not correctly signed or, where relevant, why the document was never signed or witnessed at all.

[13]In Re Campbell, Mackenzie J noted that:5

The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will or on an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which would otherwise occur to take place. The preponderance of successful applications suggests that this Court recognises it as appropriate to give effect to the contents of the document in preference to the disposition, which the deceased person has, by the document, shown a wish should not apply.

3      Re Zhou (dec’d) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].

4      Wills Act 2007, s 14(3).

5      Re Campbell (dec’d) [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].

[14]             In Re Cornelius, the Court recognised that despite a reasonably extensive delay (in that case three years) between preparation of a draft and death of the will-maker the draft may, in appropriate cases, still accurately reflect the deceased’s testamentary intentions.6

Discussion

[15]             The document for which validation is being sought is in formal terms, prepared with assistance from a solicitor under some urgency, and signed by the testator. One witness, Toni Botica, has deposed that she recalls on 9 September 2022 having a conversation with Mr Hyslop about the requirement to have two witnesses sign the will. Her evidence is that Mr Hyslop told her that his lawyer informed him that morning that only one witness was required. This conversation had arisen because Ms Botica had been present when another employee of Mr Hyslop’s witnessed his execution of the will in an open plan office where they all worked.

[16]In terms of other jurisdictional requirements in s 14 of the Act, I note:

(a)the  document  was  prepared  by  a   New Zealand   based  lawyer, Ms Lisa Johnstone;

(b)the document does not comply with s 11 of the Act because, although it is signed by the testator, his signature was witnessed by one person only, rather than the two required.7

[17]             The critical jurisdictional question is, therefore, whether the document expresses Mr Hyslop’s testamentary intentions. I am clearly satisfied that it does. I reach that view because:

(a)the solicitor who assisted with the drafting of the document initially received instructions from Mr Hyslop by email on 18 April 2022. A copy of those instructions have been produced as an exhibit, and they

6      Re Cornelius HC Auckland CIV-2012-404-341, 28 March 2012 at [11] and [20].

7      Wills Act 2007, ss 14(1)(b) and 11(4).

are consistent with the testamentary intentions expressed in the document under consideration;

(b)subsequently, Ms Johnstone received an email from the applicant on  9 September 2022, a copy of which is also produced to the Court as an exhibit. This establishes that following discussions between the applicant and Ms Johnstone, the applicant prepared a revised will for Mr Hyslop and emailed it to Ms Johnstone at 11.51 am the same day. While prepared in some haste, the document was prepared under the supervision of a solicitor;

(c)the document intended to be a will was signed by Mr Hyslop the same day, but only one person is identified as a witness due to a clear misunderstanding and when the formal requirements for execution of a valid will could easily have been met.

[18]             I am satisfied that were it not for a misunderstanding concerning the number of witnesses required to make a valid will, Mr Hyslop would have executed the document in issue in accordance with requirements of the Act, and that the document fully expresses his testamentary intentions. In coming to this conclusion, I note that the applicant’s account of the circumstances leading to the signing and witnessing of the will is corroborated by the independent accounts of two people present during the relevant events, and is not reliant on Ms Downey’s account alone.

Result

[19]             I make orders declaring that the document annexed and marked “A” to the affidavit of Dianne Downey dated 3 July 2024 is the last will of Paul Stewart Hyslop, of Wairoa, Business Owner.

[20]No issue as to costs arises.

Isac J