IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2022-409-586
[2023] NZHC 2497	

IN THE MATTER OF	the Wills Act 2007	
BETWEEN	GARY FRANCIS CROSS
Applicant	

Hearing:	10 August 2023	
Appearances:	K W Clay and D K Quirk for the Applicant
D J Cross (self-represented) and C Berry as McKenzie friend	
Judgment:	6 September 2023	

JUDGMENT OF HARLAND J

Introduction

[1]	On 21 September 2022, Margaret Evelyn Cross, then aged 85, died. Her last Will complying with s 11 of the Wills Act 2007 (the Act) was dated 21 August 2007, however, on 31 July 2021, she appears to have made handwritten amendments to that Will which, although they were signed and dated, do not comply with the Act because they were not witnessed. The applicant, Gary Cross, the remaining executor of his late mother’s Will, applies to the Court for a declaration that the document dated 31 July 2021 is a valid Will.

[2]	The issue is an important one because of the need for Gary Cross, as executor, to seek a grant of probate in respect of either the 2007 Will or the document dated 31 July 2021. Without the Court determining the issue therefore, he considers he is unable to swear the necessary affidavit required to substantiate a grant of probate.

RE: CROSS [2023] NZHC 2497 [6 September 2023]

[3]	All potentially affected parties were served with a copy of the application. None, apart from Daniel Cross, the applicant’s son, oppose it. Daniel Cross contends that the Will dated 21 August 2007 is the last Will of the late Margaret Cross.

[4]	I have decided to grant the application. This judgment sets out my reasons for doing so.

Factual narrative

[5]	Mr and Mrs Cross’s husband, Neville Cross, died at Christchurch on 5 April 2012. Both Mr and Mrs Cross had four children, Stephen who is deceased, Donna Paterson, Denise Kilpatrick and Gary Cross.

[6]	They had six grandchildren, two of whom are Daniel Cross (Gary Cross’s son) and Alannah Holdem (Denise Kilpatrick’s eldest daughter). Both were considered by Mr and Mrs Cross to be their children largely because they assisted with their upbringing. Daniel Cross spent every weekend with his grandparents between the ages of two and 15 and, after that, lived with them and latterly Mrs Cross until he purchased his own house two years ago.

[7]	Mrs Cross’s estate is modest. There is a property with an estimated market value of $625,000, funds in bank accounts totalling $77,259.17, and motor vehicle with an estimated value of $4,000. There are two liabilities, being funeral expenses and an amount owed to Denise Kilpatrick for the deposit paid to the funeral director. The value of the estate is therefore approximately $691,784.31. Out of this, will come legal costs for the administration of the estate and other costs associated with winding up the estate as well the costs of these proceedings.

2007 Will

[8]	On 21 August 2007, before Mr Cross Snr’s death, Mrs Cross made a Will. It was prepared by her long-time solicitor Mr Doody. There is no issue that this Will was validly executed. The executors appointed under the Will are the applicant Gary Cross and Graham Robinson. Mr Robinson is unable to fulfil his role as an executor and trustee given that he suffers from dementia.

[9]	Under this Will, Mrs Cross’s estate would be divided into five equal shares; one each for her children Gary, Donna and Denise, and one share each to her grandchildren Alannah Holdem and Daniel Cross.

2021 document

[10]	After her death, Mrs Cross’s daughter Denise located the document dated 31 July 2021 containing Mrs Cross’s handwritten amendments to her 2007 Will. There is no issue that the handwritten amendments were made by Mrs Cross, neither is there any issue that she signed and dated the last page of her 2007 Will next to her handwritten notes. She made the following amendments:

(a)	She deleted the first part of clause 3, deleting reference to her husband not surviving her for a period of 14 days. Although she deleted this reference to her husband, she did not delete the same reference in clause 2. As Mr Cross had died some years earlier, her deletion of this reference is understandable.

(b)	In relation to the division of her estate, she deleted reference to it being divided into five equal shares, as outlined in para [8] above.

(c)	At the end of the 2007 Will, she wrote the names of her children, Gary, Donna and Denise, with “1/4” beside their names, and she wrote Daniel and Alannah’s names beside which she wrote “1/8”. Beside this she included the word “property”. It is agreed that the reference to “property” must have been referring to her home and that what she wrote meant she wanted each of her children to inherit a quarter share in her home with her two grandchildren each inheriting an eighth share.

(d)	There is then another handwritten note referring to bank money and assets with the names Gary, Donna and Denise underneath it. Gary Cross understands this to mean that Mrs Cross wanted her money in any bank account and remaining assets to be divided between Donna, Denise and himself as to one third each.

(e)	The remaining handwritten note records that “upon my death house not to be sold for five months so family can resettle”. Gary Cross interprets this to mean that Mrs Cross did not want the house to be sold for five months after her death, so the family could consider matters.

(f)	On the front of her Will, Mrs Cross has recorded a phone number and address, both of which relate to Mr Doody.

Other evidence

[11]	On 30 July 2022, Gary Cross, who had lived in Australia for many years, returned to New Zealand. While overseas, he said he spoke to his mother often on the telephone and, after he returned to New Zealand while at her home one day, she outlined the changes that she wanted to make to her Will. She told him she thought it was fair that her three children should receive a larger share than Daniel and Alannah. Mr Cross said he did not enquire any further about his mother’s reasons for this because he considered it was a matter for her to decide. Although Mrs Cross did not tell him that she had recorded anything in writing, he says she told him that she was trying to contact Mr Doody about the changes she wanted to make to her Will.

[12]	Mr Doody filed an affidavit. He deposed that he had known and acted for Mrs Cross for 35 years. He confirmed that he drafted the 2007 Will and witnessed her signature to it, which had also been witnessed by a secretary presumably at his practice.

[13]	Mr Doody’s last professional engagement with Mrs Cross was when Mr Cross died in 2012 and the family home was transmitted into her sole name.

[14]	Mr Doody deposed that, during August 2022, Mrs Cross telephoned him to ask who he suggested should do her legal work, given that he had retired. Mr Doody did not make a file note of this conversation but recalled that there were general discussions about events in the past, following which Mr Doody recommended a firm of solicitors to Mrs Cross. Mrs Cross did not mention to Mr Doody her desire to change her Will. However, given that he was not to be involved in her legal work, Mr Doody said that was “probably understandable”.

[15]	Catherine Baker also filed an affidavit. Mrs Baker is a friend of Gary Cross. She deposed that, about four years ago, Gary Cross asked her whether she would be willing to visit his mother to check on her from time to time, she having met Mrs Cross some years before. Following this request, Mrs Baker visited Mrs Cross for several hours once a month on either a Saturday or Sunday morning. She noted that they had a lot in common, had similar interests and got along well. She considered Mrs Cross to be her friend.

[16]	Mrs Baker recalls a discussion she had with Mrs Cross about Wills approximately 18 months ago. The topic had been brought up because Mrs Baker and her husband had been to see a lawyer that week to revise their estate planning.

[17]	Mrs Cross advised Mrs Baker that, under her Will, she had divided her estate into four parts; three of which were to go to her three children Gary, Donna and Denise, with the other quarter share to be divided between two of her grandchildren Daniel and Alannah, both of whom would receive a one eighth share in her estate. Mrs Cross explained to her that she and the late Mr Cross both decided to do this before he died because they had raised Daniel and Alannah and considered them to be more like children rather than grandchildren. Mrs Cross also told Mrs Baker that she had been reflecting on her Will and thought it would be fairer that her three children received a greater share of her estate. She told Mrs Baker that she wanted to revise her Will so that her three children would each receive a quarter of her estate plus half of the quarter she had originally left Daniel and Alannah in her first Will.

[18]	Mrs Baker said Mrs Cross asked her what she thought of this. She told Mrs Cross she thought this seemed fair because her grandchildren would eventually inherit from their parents.

[19]	Mrs Baker understood that Mrs Cross was planning to meet with her solicitor to make these revisions to her Will.

[20]	Although the handwritten amendments were made by Mrs Cross to her Will on 31 July 2021, about two months after her discussions with Mrs Baker, she did not in fact make an attempt to contact Mr Doody until the following year in August 2022.

She did not contact the lawyers he suggested to formally change her Will after that discussion.

[21]	Unexpectedly, Mrs Cross’s health deteriorated a week before she died. She died in hospital on 21 September 2022.

Legal considerations

[22]	Section 11 of the Act outlines the requirements for a Will to be valid. The 2021 document fulfils the requirements apart from in relation to witnessing, which are set out in ss 11(4) and (6) of the Act.

[23]	Despite s 11, s 14 of the Act enables the High Court, in its discretion to declare a Will valid, it 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.

[24]	The procedures employed to determine an application under s 14 should ensure that the issues can be dealt with promptly, inexpensively and efficiently.1 This is relevant to costs, a matter I return to shortly.

1	Re Estate of Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010.

[25]	The key issue is to assess how reliable the expression of the deceased’s intentions are.2 The onus rests on an applicant to satisfy the Court, on the balance of probabilities, that the document propounded as the last Will of the deceased reflects his or her testamentary intentions.3

[26]	The delay between the document purporting to be an expression of testamentary intention but not qualifying as a Will is a relevant consideration that is required to be carefully assessed.4 I agree with Mr Clay that Amundson v Raos5 is a similar case in terms of its facts because, in that case the testator had marked up the changes he wished to make on a copy of an earlier Will, had died unexpectedly, the document sought to be declared a valid Will was not witnessed and there had been a delay between the marking up and death. Amundson is also useful because, in that judgment, Moore J set out in detail other cases where there had been a temporal gap of the kind that occurred in this case. In one case, the delay amounted to about three years.6

The opposition

[27]	Daniel Cross submits that the Will dated 21 August 2007 should stand as the deceased’s only Will.

[28]	He referred to the delay of some 14 months from the time Mrs Cross made the handwritten amendments to the time of her death and submitted that 14 months was ample time for these amendments to have been made in a way that the Wills Act requires. He invited me to infer that, by not doing so, Mrs Cross chose not to action the changes she had proposed.

[29]	Daniel Cross outlined possible reasons for the delay, including that Mrs Cross may have been uncomfortable with the complexity of what was required; she may have needed additional information, for example a valuation of her assets; she may

2	Re Campbell (deceased) [2014] 3 NZLR 706 at [18] and [24].
3	McKay v Society of St Vincent De Paul New Zealand [2022] NZHC 846 at [12]-[13]; Re Estate Ebert [2022] NZHC 2485 at [12].
4	Re Estate Garnett, [2023] NZHC 46; Re Estate Philip Holt [2022] NZHC 280.
5	Amundson v Raos [2015] NZHC 2422.
6	Amundson v Raos, at [25]-[29].

have wanted a lawyer’s input; she may have been uncertain about making the changes formally; or she may have been more comfortable leaving the existing Will in place.

[30]	Daniel Cross highlighted that the conversation Mrs Cross had with Mr Doody did not include any discussion about her wanting to change her Will and he noted that the discussions Mrs Cross had with Mrs Baker simply indicated she was only contemplating a possible revision of her Will.

Discussion

[31]	The potential beneficiaries under both the 2007 Will and the 2021 document are the same, but the proportion in which they would benefit differs.

[32]	Everyone agrees that the handwriting and signature on the 2021 document belong to Mrs Cross. The only question is whether the changes are ones which Mrs Cross permanently intended to make or whether they were simply a draft of what she was considering might be changes she would make to her Will some time in the future.

[33]	There is some context to the changes evident in the 2021 document. There is the discussion with Mrs Baker which was about two months before the amendments were made. I am not persuaded that there was anything untoward in the discussion Mrs Baker had with Mrs Cross because the context in which it arose is credible and I am satisfied Mrs Baker’s friendship with Gary Cross did not influence the discussion she had with Mrs Cross or that Mrs Baker has been anything apart from honest about the contents of the discussion. I also accept that Gary Cross did not know about the July 2021 document until after Mrs Cross’s death. However, the amendments are consistent with the discussions Mrs Cross had with him while he was living in Australia and after he returned to New Zealand.

[34]	The explanation Mrs Cross gave Gary Cross about her reasons for wanting to change her Will are also plausible and there was a rational and reasoned basis for her wanting to do so, including that the changes were discussed with Mr Cross Snr prior to his death.

[35]	The outcome, of itself, is not unusual either because one could expect, in the normal scheme of things, that, although Daniel and Alannah were treated as children by Mr Cross Snr and Mrs Cross, they could also reasonably expect to inherit something from their parents, Gary Cross and Denise Kilpatrick.

[36]	As to the question of delay, I am satisfied that it is more probable than not that Mrs Cross simply did not get around to formally effecting the changes she wanted to make to her Will with a new lawyer. This, of itself, does not however mean that her testamentary wishes were not expressed in the 2021 document. It is reasonable, in my view, to infer that Mrs Cross did intend to arrange for the changes she wished to make to be more formally recorded in a new Will to be formalised with a lawyer. I infer this because there does not appear to be any other reason why Mrs Cross would want to see a lawyer as there was no suggestion she was intending to sell her home and there would be no other reason, from what I know of her situation, that would indicate the need for her to see a lawyer.

[37]	I also take into account that Mrs Cross’s death was not expected. There was accordingly no rush from her perspective to see a lawyer about changing her Will in a formal way.

[38]	Taking into account all of these matters and bearing in mind the case law about delay, I have reached the view that the delay in this case is explainable and is not a significant reason to doubt that the changes made by Mrs Cross on 31 July 2021 did not reflect her testamentary intentions.

[39]	It follows that I am satisfied that the 2021 document expresses Mrs Cross’s testamentary intentions and that it is appropriate for me to make an order declaring it to be a valid Will.

Result

[40]	The application is granted. I make a declaration that the handwritten amendments made by Mrs Cross on 31 July 2021 on her prior her Will dated 21 August 2007 is a valid Will and, as it is the last Will of Mrs Cross, is the Will upon which an application for probate can be made.

Costs

[41]	Mr Clay seeks costs on behalf of the applicant. There are two parts to this application:

(a)	costs including GST and disbursements amounting to $24,576.20 are sought to be paid from the estate. These are the costs the applicant has incurred to bring this matter to Court. Mr Clay provided copies of his invoices to support the claim; and

(b)	there is an application for “wasted costs”. This application arises from the inability of the applicant to pursue the formal proof on the date that it had been set down before Cull J. Costs are sought on a 2B basis amounting to
$5,377.50, being in accordance with the second schedule to the High Court Rules (HCR):
Item 32: 2 days preparation amounting to $4,780

Item 42: a quarter of a day for hearing amounting to $597.50

Costs sought from the estate

[42]	Mr Clay provided three invoices for services rendered in relation to drafting the proceedings and appearances at various conferences, including the hearing of this matter. He sought that these be paid from the estate. I am not persuaded that actual costs are appropriate in this case. The proceedings were relatively straightforward and, although there were several attendances required in Court, they did not occupy a significant amount of time or difficulty. In my view, costs on a 2B basis would be justified. As well, the estate is relatively modest. I invite counsel to submit an application for costs based on a 2B analysis.

Wasted costs

[43]	Mr Clay submitted that Daniel Cross’s late decision to oppose the Will and his failure to file a notice of opposition as directed,7 are factors that ought to be taken into account when considering costs.

7	Minute of Cull J dated 31 May 2023.

[44]	In my view, no adverse inference should be drawn against Daniel Cross for the stance he has taken in this proceeding. As Mr Clay recognised, there is no prejudice suffered by the applicant for Daniel Cross’s failure to file a notice of opposition because the issues he wished to draw to the Court’s attention are clear in his affidavit.

[45]	But, fundamentally, because Daniel Cross is representing himself (albeit with the last minute assistance of a McKenzie friend), there is nothing he has done which, in my view, has resulted in any significant prejudice or delay to anyone. Mr Clay conceded that sensitivity was required because of the family dynamics. Daniel Cross advised the Court that a family arrangement was being entered into and had been agreed by all parties following a recent meeting.

[46]	I am not persuaded that anything apart from a claim under scale 2B for the appearance before Cull J is justified. I invite counsel to include this in their subsequent memorandum as to costs.

[47]	I will, upon receipt of the further memoranda, consider the final amount of costs that will be awarded but indicate that my tentative view is that it is appropriate for them to be paid out of the estate.

Harland J