Welsford-Ackroyd v Bay Law Office Limited

[2023] NZHC 582

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2443

[2023] NZHC 582

UNDER

the Wills Act 2007

AND IN THE MATTER

of the Estate of

JANICE ELSPETH MACDONALD

BETWEEN

ERICA WELSFORD-ACKROYD

Applicant

AND

BAY LAW OFFICE LIMITED

Respondent

Hearing:

20 March 2023

Appearances:

J M Gandy for applicant

No appearance for respondent

Date of judgment:

22 March 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 22 March 2023 at 10.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Thomas & Co, Auckland

WELSFORD-ACKROYD v BAY LAW OFFICE LIMITED [2023] NZHC 582 [22 March 2023]

[1]                  Erica Welsford-Ackroyd, as contended executor of Janice Elspeth MacDonald’s estate, seeks my declaration, under s 14 of the Wills Act 2007, an evidenced document created in 2021 is the deceased’s valid will, in substitution for that signed and witnessed in 2018. Given the absence of opposition, and no further evidence, my decision is sought on the papers.

Background

[2]                  In August 2021, Ms MacDonald instructed her 2018 will be updated, which her solicitors then drafted accordingly. Ms MacDonald advised she would attend to its execution after settlement of a property transaction. Settlement occurred on Friday,  3 December 2021. Ms MacDonald died unexpectedly on Monday, 6 December 2021. The 2018 will appoints, and the 2021 document would appoint, Shirley Margaret Syman executor of Ms MacDonald’s estate. Ms Syman instructed the 2021 document be validated as a will. Before that could occur, Ms Syman died in March 2022. The 2021 document alternatively would appoint Ms Welsford-Ackroyd executor.

[3]                  The 2018 will distributes, and the 2021 document would distribute, specified bequests to various parties in slightly different terms between the two iterations, with the residue to go to  the  Starship  Foundation.  A  gift  of  specified  jewellery  to  Ms MacDonald’s niece in the 2018 will is subsumed in a generalised gift of jewellery to Ms Welsford-Ackroyd in the 2021 document (formerly of the residue of jewellery in the 2018 will). The 2021 document omits the 2018 gift of personal effects, including any motor vehicle, to the Salvation Army, and includes a gift of a motor vehicle to a grand-nephew (Ms Welsford-Ackroyd’s son) not mentioned in the 2018 will. A

$50,000 gift in the 2018 will is adjusted in the 2021 document to a percentage of the estate not exceeding $50,000.

[4]                  Ms Welsford-Ackroyd explains Ms MacDonald “gave considerable thought to the changes she was making which she discussed with and expressed to [Ms Welsford- Ackroyd], her solicitors and to [Ms Syman]”. In particular, Ms MacDonald’s relationship with her niece is said to have deteriorated over the latter’s attempts to discourage her from receiving COVID-19 vaccinations. In any event, with the

exception of a  gold  wedding  band,  the  specified  jewellery  was  not  found  in  Ms MacDonald’s effects on her death.

[5]                  The parties other than the continuing residual beneficiary, Starship Foundation, have been served with, but taken no further part in, the proceeding.

Validation of wills

[6]Section 14 of the Wills 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.

(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.

[7]Section 14 applies to the evidenced document, because it:

(1)is a document;

(2)appears to be a will, in that it is to be made by Ms MacDonald, and seeks to dispose of property to which she was entitled when she died;1 and

(3)does not comply with s 11 (which relevantly requires the document to be signed and witnessed).

1      Wills Act 2007, s 8(1).

[8]                  I may declare the document Ms MacDonald’s valid will if I am satisfied the document expresses her testamentary intentions. The discretion conferred by s 14 is residual only: good reason would be required to refuse an order if so satisfied.2 I am essentially to “evaluate the relevant circumstances and reach a conclusion”.3 I am to take “a robust approach”.4 Ms  Welsford-Ackroyd’s  introduction  as  executor  on Ms Syman’s death does not warrant any different approach.5

Does the document express Ms MacDonald’s testamentary intentions?

[9]                  Given the circumstances  of the 2021 document’s making as explained by  Ms MacDonald’s solicitor, and the solicitor’s belief of her sound mind on such instruction, I am satisfied the document expresses her testamentary intentions,6 for disposition of her property.7

Result

[10]              I declare the original of the document marked “B” annexed to the affidavit of Genevieve Sara Kaye affirmed 15 November 2022 is the valid will of Janice Elspeth MacDonald. I direct the costs of this application be paid out of her estate.

—Jagose J

2      Balchin v Hall [2016] NZHC 837 at [11].

3      Re Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].

4      Watt v Owston-Doyle [2015] NZHC 1292 at [12], citing Re Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].

5      Re Greathead [2014] NZHC 3068, [2015] NZFLR 127 at [12], citing Re Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [4].

6      Wills Act, s 14(2).

7      Section 8(1)(b)(i).