IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2019-425-48
[2021] NZHC 881	

UNDER	the Wills Act 2007	
IN THE MATTER	of the Estate of Olwen Frances Rae	
BETWEEN	MALCOLM LEWIS RAE AND SARAH JANE McDONALD RAE
Applicants	

Hearing:	On the papers	
Appearances:	O L Taylor for Applicants	
Judgment:	23 April 2021	
Reissued:	28 April 2021	

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 23 April 2021 at 3.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1]	The applicants, Malcolm Lewis Rae and Sarah Jane McDonald Rae, seek an order pursuant to s 14 of the Wills Act 2007 declaring a document to be the valid will of  the  deceased,  Olwen  Frances  Rae,  who   died  at  Invercargill  on  or  about   13 September 2018. This declaration is sought because the document has been altered in a way which does not comply with s 15 of the Wills Act.

RE RAE [2021] NZHC 881 [23 April 2021]

[2]	The application is made without notice, on the grounds that all persons who may potentially be affected by the granting of the order have consented to the application. A memorandum of counsel dated 26 February 2021, filed in response to a query from the Court, provides evidence that any potentially affected persons consent to the application on the basis that the applicants will honour bequests made to them in an earlier will.

[3]	I am satisfied that all affected parties have consented to the application and that it can proceed without notice.

Background

[4]	On 15 September 2000 the deceased created a will (the original will). No issue has been raised with the validity of this document. The original will appointed the Trustees Executors and Agency Company of New Zealand Ltd and Sarah Rae, Olwen Rae’s daughter, as the executors and trustees of the will.

[5]	The original will directed that Olwen Rae be buried at the Eastern Cemetery, Invercargill, and that her trustees arrange a plaque to be placed in the rose garden at All Saints Church (the Church). It also made the following bequests and directions:

(a)	the sum of $4,000.00 is to be given to the Church;

(b)	the sum of $4,000.00 is to be given to Avis Wyber;

(c)	all personal chattels are to be given to the trustees to be disposed of in accordance with any list made, or if no list exists, shall form part of the residuary estate;

(d)	that any debts, funeral expenses, the trustees’ administration expenses and any death duty payable on the estate are paid; and

(e)	that the residue is to be divided equally between Malcolm Lewis Rae and Sarah Jane McDonald Rae.

[6]	Another will, which is the subject of this application, was signed and witnessed by two witnesses, on 10 September 2003 (the contested will). However, changes were made to the contested will. These changes were made by deleting provisions in the contested will and adding new provisions. Some of these changes were signed by the testatrix and two witnesses in a manner that does not accord with s 11(4) of the Wills Act in that the changes were not actually signed by the testator in the witnesses’ presence, but the witnesses signed at a later date. In addition, for some of the alterations, it is unclear on the face of the document which change the signature correlates to. However, affidavits from the signatories to the changes have been provided and they confirm the changes were initialled by them on the recorded dates.

[7]	With that explanation, I am satisfied that the contested will can be read as making the following specific gifts:

(a)	$1,000 to the Invercargill branch of the SPCA;

(b)	$1,000 to the Anglican Women’s Association (AWA);

(c)	$2,000 to the Church;

(d)	the Lewis table and chairs and Henry VIII painting to go to the deceased’s son, Malcolm Rae, but to be looked after by her daughter Sarah in the interim; and

(e)	the balance of the deceased’s estate is to go to her two children (equally).

[8]	In memorandum filed by counsel on 15 May 2019 a note on a single piece of paper (the note) that counsel says was found in the deceased’s paperwork was provided. The date of this note is recorded as 12 July 2018 and two witness signatures at the bottom of the note are dated 3 and 7 of September 2018. The note set out the following:

(a)	$1,000 gifted to the SPCA;

(b)	$1,000 gifted to AWA for refreshments;

(c)	$2,000 to the Church for burial; and

(d)	the residual estate be shared between Sarah Rae and Malcolm Rae.

[9]	Aside from the specification concerning the table and chairs being looked after by Sarah Rae for Malcolm Rae, this matches the bequests made in the contested will, and reinforces the fact that the contested will embodies the testator’s testamentary intentions. The only additional bequest in the contested will itself, is the bequest specifying “Lewis Table & Chairs to be looked after by Sarah Rae for Malcolm Rae & Henry VIII painting”. That bequest is clearly accompanied by Olwen Rae’s signature dated 3 September 2018 and two witness signatures dated 3 September 2018 and 7 September 2018.

[10]	As already noted, the application is consented to by those who were potentially affected, on the following terms:

(a)	the vicar of the Church consents on the basis the applicants will honour the bequest of $4,000 made in the original will.

(b)	Avis  Wyber,  the  second   affected   beneficiary,   passed   away   on 3 November 2020 and consent was granted by the executors of her estate on the basis the applicants will honour the $4,000 bequest made to Mrs Wyber under the original will.

[11]	I have queried why the applicants sought to validate the contested will given there would be little practical difference between it and the original will if these bequests are honoured. In a telephone conference, counsel for the applicants explains that the primary reason the applicants seek to validate the contested will is to enable both Sarah Rae and Malcolm Rae to work together as trustees and executors of the estate, which they assert was their late mother’s wish.

Law

[12]	This Court has power to validate changes that do not comply with the requirements in s 15(a), (b) or (c) of the Wills Act if the Court is satisfied the document as changed, still appears to be a will and expresses the deceased’s testamentary intentions.1

[13]	Sections 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.

[14]	Section 15 states:

15	Changes

A valid will, or part of a valid will, may be changed, but only by one of the following means:

(a)	the change is—

(i)	written on the will; and

(ii)	signed and witnessed as described in section 11(3) and (4), with the signatures written beside, or near to, the change; or

1	Re Prince [2012] NZHC 1058 at [11]; and Wills Act 2007 ss 14(2) and 15(d).

(b)	the change is described in a note—

(i)	written on the will; and

(ii)	signed and witnessed as described in section 11(3) and (4); or

(c)	the change is the obliteration of words in the will in such a way as to prevent their effect being apparent; or

(d)	the change is declared valid under section 14; or

(e)	the change is done under section 34(2).

Analysis

[15]	The changes made to the contested will do not accord with s 15 of the Wills Act. I consider, however, that the contested will, in combination with the note, shows the deceased’s clear testamentary intentions. The specific and general gifts in paragraphs 4 and 5 of the contested will, make the following bequests:

(a)	$1,000 to the Invercargill branch of the SPCA;

(b)	$1,000 to the Anglican Women’s Association (AWA);

(c)	$2,000 to the Church;

(d)	the Lewis table and chairs and Henry VIII painting to go to her son, Malcolm Rae, but to be looked after by her daughter Sarah in the interim; and

(e)	the balance of her estate is to go to her two children (equally).

[16]	I am therefore satisfied that it is appropriate to validate the contested will, notwithstanding its non-compliance with the requirements of s 15 (and therefore s 11) of the Wills Act, in order to carry out the testamentary intentions of the deceased, Olwyn Rae. I do so on condition that the applicants will, in their personal capacity, honour the bequests made in the earlier will to the Church and to the estate of      Avis Wyber.

Result

[17]	Accordingly, I order:

(a)	the document attached as exhibit A to the affidavit of the applicants is declared to be the valid will of the deceased, Olwyn Frances Rae; and

(b)	the applicants are, in their personal capacity, jointly ordered to meet the bequests to the beneficiaries of the original will set out at [10] above.

Solicitors:
John K Fraser Law Ltd, Invercargill