IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-485-601528 [2015] NZHC 1292

IN THE MATTER	of an application for Probate in Solemn
Form pursuant to R 27.6 High Court Rules	

IN THE MATTER	
of the Estate of MICHAEL OWSTON- DOYLE late of Auckland, deceased	

IN THE MATTER	
of an application pursuant to s 14 Wills
Act 2007	

BETWEEN	
SYLENA EVE OWSTON WATT, JO- ANNE MICHELLE PETTYJOHN, LISA JANINE ROBERTS
Plaintiffs	

AND	
SYLVIA MAY OWSTON-DOYLE Defendant	

Hearing:	4 June 2015	

Appearances:	
P G Revell for Plaintiffs
No appearance for Defendant	

Judgment:	
9 June 2015	

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
9 June 2015 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Corban Revell Lawyers, Auckland

WATT v OWSTON-DOYLE [2015] NZHC 1292 [9 June 2015]

[1]       The plaintiffs make application for:

(a)	Validation of the unsigned will of Michael Owston-Doyle, under s 14 of the Wills Act 2007;  and

(b)	Probate of the will in solemn form.

[2]       The plaintiffs have truncated what is normally a two-step process and have requested the Court to proceed by way of formal proof to make the orders sought.  I have something to say briefly about the procedure adopted below, but for present purposes I am primarily concerned with the merits.

Background

[3]       Mr Michael Owston-Doyle died at Auckland on 1 June 2014.  He is survived by his wife, Sylvia and his six children, two of whom, Sylena Watt and Jo-Anne Pettyjohn, are two of the three plaintiffs in their capacity as executors.  The third in that capacity is Lisa Roberts, a partner of the firm Corban Revell.

[4]       On 14 May 2014, at the request of Jo-Anne Pettyjohn, Mr Allen, a registered legal executive employed by Corban Revell, saw at the offices of Corban Revell Mr Owston-Doyle, Sylvia, Jo-Anne Pettyjohn and Jo-Anne’s husband.

[5]       Mr Allen has  produced  an  exhibit  of his  handwritten notes  made at  the meeting.    Mr  Allen  also  deposes  that  he  drew  the  document  intended  to  be Mr Owston-Doyle’s last will at the offices of Corban Revell some time between the date of 14 May 2014 and 29 May 2014.  He firmly believes that the document he drew reflected Mr Owston-Dolye’s testamentary intentions as of that day.

[6]       On 29 May 2014, Mr Allen was telephoned by Jo-Anne, who informed him that her father had been admitted to Waitakere Hospital for surgery and that it was

anticipated that he would be discharged after surgery to another facility in Glen

Eden.

[7]       Mr Allen also visited Mr Owston-Doyle in Waitakere Hospital on 30 May

2014.   He says he read the will over to Mr Owston-Doyle who appeared to be in some discomfort and kept his eyes closed during that process.  After he had read to him the main clauses in the document, i.e. clauses 1 to 6, 8 and 9, he said yes.

[8]       Mr Allen asked the doctor on duty whether he or another staff member would act as a witness, but he refused as it is apparently not hospital policy to do so.  On telling Mr Owston-Doyle, he asked if Mr Allen could get a nurse as he clearly wanted to get his will signed.  However, Mr Allen was not happy to do that because the medical staff at the hospital were not prepared to act as witnesses.  It was also suggested to him that there was no immediate urgency.

[9]       Sadly Mr Owston-Doyle died two days  later on 1 June 2014, without having signed his draft will.

Assessment

[10]     Section 14 of the Wills Act 2007 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.

[11]     The intended will in this case does not comply with s 11 because Mr Owston- Doyle did not execute the will.   In this regard I accept the evidence given by Mr Allen that Mr Owston-Doyle would have executed the intended will but for his inability to have it properly witnessed prior to his passing.

[12]     As I stated in Re Estate of Feron1 drawing on various authorities:

(a)	A robust approach to the application of s 14 is called for (referring to

Re Estate of Murray);2

(b)	The ostensible purpose of s 14 is to validate documents that plainly express the wishes of a deceased person;

(c)	Provided that the intentions of the will-maker are clear, s 14 can be curative of any technical non-compliance.

[13]     In this case I am satisfied, based on the evidence tabled before me, that the intended will clearly reflects the intentions of Mr Owston-Doyle.

[14]     That being the case I validate the intended will under the auspices of s 14.

Probate

[15]     The  High  Court  Rules,  r 27.4  requires  an  affidavit  to  be  filed  from  the executors that indicates two mandatory criteria:

(a)	Proof of death of the deceased;  and

(b)	That the executors will faithfully administer and execute the will of the deceased.

1	Re Estate of Feron [2012] NZLR 551, [2012] NZHC 44.
2	Re Estate of Murray [2012] 2 NZLR 546 (HC).

[16]     The plaintiffs’ affidavits in this case comply with the form and indicate that

the three executors will faithfully administer the will.

[17]     For completeness, the primary change from the previous will is to leave a life interest only to Mr Owston-Doyle’s wife, Sylvia, with the residue of the estate to be held on trust for the six named children of the deceased.   Sylvia was served with these proceedings but has taken no step in them.

[18]     Counsel also advised that while Sylvia is not the only person who would be entitled to a grant relating to the 2012 will, she is the only person who would be affected by the application for probate.

[19]     Accordingly, probate in solemn form is granted.

Process

[20]     In  this  case  Mr  Revell  for  the  plaintiffs  has  effectively  joined  the  s 14 application together with the probate application.  The Rules are clear.  A two-step process is envisaged, namely an originating application pursuant to r 19 addressing s 14 is filed and lodged first.  That matter is to be resolved and then an application for probate is to follow in common form assuming the s 14 application resolved all disputed matters.  While, I have granted an indulgence in this case, given its very straightforward character, the expectation of the Court is that this two-step process will be properly followed in future.