IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE	
CIV-2020-412-077
[2020] NZHC 2542	

UNDER	the Wills Act 2007	
IN THE MATTER	of an application by NOELINE EDWA CAIRNS for an order that a document be declared a valid will of DAVISON BUTLER CAIRNS	
BETWEEN	N E CAIRNS
Applicant	
AND	J A CAIRNS AND OTHERS
Respondents	

Counsel:	J Stringer for Applicant	
Judgment:	29 September 2020	
	(Determined on the papers)	

JUDGMENT OF JUSTICE OSBORNE

This judgment was delivered by me on 29 September 2020 at 1.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]	This proceeding concerns the estate of the late Davison Butler Cairns (Davison)  who  died  on  15  February  2019.	His widow, Noeline Edwa Cairns

CAIRNS v CAIRNS [2020] NZHC 2542 [29 September 2020]

(Noeline), applies under s 14 Wills Act 2007 (the Act) for an order declaring documents to constitute a will.

[2]	The respondents are Julie Cairns (Julie), Jane Boyd and Simeon Cairns, who are the three children of Davison and Noeline.

[3]	Davison’s last valid will is dated 29 August 2014. By it, Noeline was appointed executor and was the sole beneficiary of Davison’s estate, provided she survived Davison. If Noeline did not survive Davison then the residue of the estate was to be shared by the three respondents.

[4]	The main asset owned by Noeline and Davison was their home in Clyde (the Clyde home). As a result of estate planning advice, Noeline, Davison and the respondents agreed to an arrangement which saw Julie and her husband, Stephen Gee (Steve), buying the Clyde home. Davison and Noeline were to continue to have occupation rights under a written occupation agreement. The ultimate intent of the estate planning was to ensure that Noeline and Davison each held the sale proceeds of the Clyde home separately. Each would leave their share of the sale proceeds to their children. The intent was to prevent the jointly owned property vesting solely in one of the joint owners upon the death of the other.

The steps taken to implement the agreement

[5]	Julie and Steve took independent advice from their own solicitors who produced a document called the “Cairns Family Asset Planning 2018”. That document, which was then provided to Davison’s solicitors, set out a plan where Julie and Steve were granted an option to purchase the Clyde home from Davison and Noeline. The plan, as originally framed by Julie and Steve’s solicitors, was not ultimately  implemented,   but  a  variation  of  the  plan  was.     As  a  result,  on      6 December 2018, an agreement for sale and purchase of the Clyde home to Julie and Steve was signed. That was followed on 18 December 2018 by an occupation agreement which recorded the intention was to ensure that Davison and Noeline had a family home to call their own while their health permitted them to reside there. Under the occupation agreement Julie and Steve were recorded as the primary occupiers.

[6]	To  ensure that the family as a whole were on board with this arrangement,    a further deed was entered into on 20 December 2018 where Davison, Noeline and their three children (including Julie) confirmed their agreement to the transaction.

[7]	Also on 20 December 2018, Noeline signed a new will. That will appointed Davison and Julie as her executors. That will left her entire estate equally to her children. There was no provision for Davison.

[8]	It is not clear why Davison’s will from 2014 was not updated at that time, but it seems, as I will develop below, it was due to an error by Davison’s then solicitor.

[9]	Settlement of the agreement for sale and purchase was scheduled for 31 January 2019.

[10]	On a date in January 2019 Davison was admitted to hospital. On Saturday 26 January 2019, Davison’s solicitor met privately with him in hospital. Davison’s solicitor prepared a file note of the meeting. The solicitor recorded that, while Davison was very unwell, she had no concerns about his understanding of what they were discussing. The file note records that Davison was concerned to ensure that his children would get his share of the estate:

… particularly her [sic] share of the house proceeds which is what was discussed previously. Both him and Eileen [sic] had been agreement [sic] on that prior to Christmas and their will is anticipated that the sale proceeds would be divided half each and each of their estate would go to the children.

The reference to “Eileen” in the file note self-evidently is a mistaken reference to Noeline.

[11]	The file note goes on to record that the solicitor advised Davison that the sale proceeds of the Clyde home would be divided on settlement and deposited half to his account and half to Noeline’s account and there was a need to change the title from joint tenancy to tenancy in common:

… to make sure if he passed away prior to Thursday that what was anticipated would happen with a half share of the sale proceeds of the house going to the children.

[12]	At that meeting on 26 January 2019, Davison signed an authority for the sale proceeds to be paid half to him and half to Noeline.

[13]	The file note continues that the solicitor was going to speak to Noeline (again, incorrectly named in the file note) to get her to execute a document changing the ownership. The file note records that Davison wanted the solicitor to proceed with the change of ownership from joint tenancy to tenants in common.

[14]	The file noting then jumps a day to Monday 28 January 2019. The file note records that Noeline came in that morning and she and the solicitor discussed the change of ownership to ensure that, if Davison passed away prior to Thursday (1 February 2019), his half share would go to the children “as they anticipated”. Noeline, at that meeting, signed the Authority and Instruction form to change the ownership to tenants in common in equal shares.

The solicitor’s error

[15]	Davison’s solicitor frankly acknowledges making an error as to the terms of his existing will. That  she made  an error  is  clear from  the terms  of  her letter of 28 January 2019. This was a reporting letter that she wrote to Noeline. The letter records as follows:

Davison requested that the ownership of the property be changed from joint ownership to tenants in common in equal shares to ensure that if he passed away prior to the 31st what was anticipated in relation to its [sic] estate would happen. The writer records that there was a discussion about your estates jointly held at our offices on 20 December where both parties agreed to have similar wills in relation to the estate and that the sale proceeds would be divided equally. This was being done to ensure that if residential care was required by the survivor not all the sale funds would be available.

[16]	However, the letter begins by  referring  to  the  meeting  with  Davison  on 26 January 2019, and the solicitor says:

… it was discussed what his wishes were in relation to his will. His wishes had not changed and his will does not need alterations, however we record that you both wished to separate the net proceeds of sale from the Earnscleugh property half each and that each person’s half would go to your children on death.

(emphasis added)

[17]	The solicitor’s error was her statement that Davison’s will did not need alterations. As I have said, the 2014 will leaves the entire estate to Noeline when Davison now (2018/2019) intended that his half of the sale proceeds of the home (essentially his whole estate) would go directly to his children.

[18]	A draft will was prepared for Davison at an unspecified date in 2018, but before the sale of the Clyde home. The draft will gave Noeline a life interest in the Clyde home, with the residue also going to Noeline. Only if Noeline predeceased Davison would the estate be divided equally between the children. This draft does not give effect to Davison’s December 2018/January 2019 intentions.

[19]	The solicitor, in a letter dated 16 May 2019 to new solicitors acting for Noeline, referred to the meeting on 26 January 2019 and said:

Prior to attending the hospital the writer reviewed the last will we held for Mr Cairns. During her review of the Will the writer focused on the clauses relating to distribution to the children and the appointment of Mrs Cairns as the executor and did not note the paragraph stating that in the first instance the whole of the estate was to go to Mrs Cairns.

At the meeting with Mr Cairns he was advised that his will already reflected his wishes that his children would receive his estate. Subsequently the joint tenancy was severed to ensure that the settlement funds from the sale of the property would be dealt with under the separate estates of Mr and Mrs Cairns.

Once this became apparent we asked Mrs Cairns to obtained [sic] independent advice.

[20]	Accordingly, Davison was inadvertently misled by his solicitor into believing that his last will gave effect to his intentions. It did not. Equally, the draft will prepared some time in 2018 also did not give effect to Davison’s intentions.

The originating application

[21]	Noeline, by way of originating application, seeks an order that “the letter and file notes recording the testamentary instructions of the deceased by his solicitor” be validated under s 14 of the Act.

[22]	The application does not specify exactly what letter and file notes are sought to be validated. The application does not seek that the draft 2018 will be validated.

Application as to directions as to service

[23]	In addition to the application to validate, Noeline seeks orders that the proceedings be served upon the respondents.

[24]	Given the respondents are the only parties affected by the 2014 will not being Davison’s last valid will, such a direction is appropriate and I will make that order (below). Each of the respondents is fully aware of the issues and has filed with the Court a consent to the orders sought.

The substantive orders — how would the deceased’s intentions be made effective?

[25]	The Act is remedial in nature and is intended to ensure that the clear intention of a testator is not defeated by technicalities.1 Section 14 of the Act establishes the circumstances in which the High Court may declare documents which are not valid wills in terms of s 11 of the Act to be valid. The section 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.

1	Re O’Carroll [2017] NZHC 1797 at [34].

[26]	Several documents may collectively be validated as a will.2 That is what is proposed here, but precisely which documents and which parts of those documents are sought to be declared as a will is not clear.

[27]	The solicitor who acted for Davison in December 2018/January 2019 has provided an affidavit confirming that Davison wanted his children to receive his estate. In practical terms that meant his half share of the property. The solicitor by her affidavit identifies that both Noeline and Davison agreed with that objective of the estate planning and intended to put it into effect.

[28]	Davison’s solicitor’s view is that Davison’s testamentary intentions were clear and supported by the arrangements made as to the sale of the family home, the severing of  the  joint  tenancy,   along  with   the  solicitor’s  file  note  and   her   letter  of   28 January 2019.

[29]	I am satisfied that Davison’s testamentary intention was to leave his half share of the sale proceeds of his home to his three children and not to Noeline.

[30]	What need to be identified by counsel for the applicant are the specific documents and which parts of them are submitted to constitute Davison’s will. This needs to be done before the Court can finally determine if all the requirements of s 14 of the Act are satisfied.

Directions

[31]	I order:

(a)	The proceeding is to be served on the respondents only.

(b)	Proof of service is to be filed upon the completion of service.

(c)	Counsel for the applicant is to file and serve an amended application attaching as a schedule the precise documents or portions of documents

2	Winterburn v Wilson [2016] NZHC 1422; Re Kronfeld [2013] NZHC 1810; and Pfaender v Gregory [2018] NZHC 161, [2018] NZAR 375.

which the applicant asserts to constitute the documents which express the testamentary intentions of Davison Butler Cairns.

(d)	For case management purposes, the application is to be called in the Duty Judge’s List at Dunedin, at 9.30 am, 17 November 2020 but with leave to request by memorandum that the application then be determined on the papers.

Osborne J

Solicitors:
Checketts McKay Law Ltd, Alexandra Anderson Lloyd, Dunedin