IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2020-409-000599
[2021] NZHC 135	

UNDER	the Wills Act 2007	
IN THE MATTER	of an application for an order that a document be declared the valid will of BEVAN FRANCIS RYAN (deceased)	
	
RACHEL MARY CADZOW of Dunedin, Registered Nurse
Applicant	

Counsel:	J A Guthrie for the Applicant	
Judgment:	11 February 2021	
	(Determined on the papers)	

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 11 February 2021 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Re Ryan [2021] NZHC 135 [11 February 2021]

Introduction

[1]	The applicant, Rachel Mary Cadzow, seeks an order pursuant to s 14 of the Wills Act 2007 that a document (“the document”) be declared a valid will of the deceased, (her father) Bevan Francis Ryan. Mr Ryan died at Christchurch on or about 23 June 2018.

[2]	The document is a one page handwritten document which begins “The last will and testament of Bevan Francis Ryan”.

[3]	This application is made by way of an originating application, without notice, on the grounds that all persons affected by the application have consented to it.

Background facts

[4]	Evidence in relation to the document and its execution has been provided by Ms Cadzow and by John Dore.

[5]	In May 2018, Patricia Lennon, the sister of Mr Ryan, stayed with Marion and Mr Dore. Mr Dore happens to be a justice of the peace. At the time, Mr Ryan was residing at Christchurch Hospital with terminal cancer.

[6]	Mr Dore accompanied Ms Lennon to Christchurch Hospital on 30 May 2018 with the document Ms Lennon had prepared. Ms Lennon read the document aloud to Mr Ryan in Mr Dore’s presence. Mr Dore deposes that Mr Ryan appeared to understand the document. Mr Dore states that Mr Ryan signed his name on the document.

[7]	Mr Dore recorded alongside Mr Ryan’s signature:

Witnessed by me “J E Dore JP”

and placed a stamped copy of his details and status immediately below.

[8]	At the time Mr Ryan signed the document, neither Mr Dore nor Ms Lennon knew that two witnesses were required for a valid will.

Content of the document

[9]	The document is straightforward in the provisions made. Mr Ryan leaves “the entire of [his] estate to be divided between [his] three children” including the applicant, save that a gift of $500 is made to a named person for his help. Mr Ryan “bequeaths” his body to the Otago Medical School and, failing their acceptance, directs his body be cremated. The document records that his documentation and his wallet is kept in Mr Ryan’s house. Finally, it records that “Rachel is my executor”.

Mr Ryan’s circumstances and estate

[10]	In her affidavit, Ms Cadzow deposes as to the following matters:

(a)	She is satisfied, after making full enquiries, that no other will exists, meaning that Mr Ryan died intestate should the document not be validated;

(b)	Mr Ryan’s two other children, Simon Ryan and Matthew Ryan, have consented to this application with written consents exhibited;

(c)	Mr Ryan was not survived by a spouse or de facto partner or by a parent;

(d)	Mr Ryan was not survived by any other children;

(e)	there were no grandchildren who could have a claim from an intestate estate; and

(f)	the gross value of Mr Ryan’s estate does not exceed $25,000.00.

Law

[11]	This Court has power to declare a document a valid will, pursuant to s 14 of the Wills Act. That section states:

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.

[12]	Here, the requirements of s 14(1) are met. The testamentary document appears to be a will, it came into existence in New Zealand and it does not comply with section 11.

[13]	Section 11 of the Wills 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).

Discussion

[14]	The evidence establishes that the document was signed by Mr Ryan. However, it was not witnessed by two witnesses as required by s 11(4) of the Act, and is therefore invalid.

[15]	Under that section the Court may declare a document a valid will if it is satisfied that the document expressed the deceased’s testamentary intentions.

[16]	I am satisfied that the document encompasses Mr Ryan’s testamentary intentions.

[17]	It is appropriate that the application be made by originating application and without notice.

Order

[18]	I order:

(a)	the applicant has leave to commence this proceeding by originating application;

(b)	service on any other person is dispensed with; and

(c)	the document signed by Bevan Francis Ryan as witnessed by John Dore and dated 30 May 2018 is declared to be the valid will of the said Bevan Francis Ryan.

Osborne J
Solicitors:
Wilkinson Rodgers, Dunedin