IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2023-485-620
[2024] NZHC 435	

IN THE MATTER	of the Wills Act 2007	
IN THE MATTER	of RODNEY SHANE RAYMOND	

BETWEEN	
DONNA LOUISE BENNETT AND CHAREE ANN RIDDER
Applicants	

Hearing:	4 March 2024 (via VMR)	
Counsel:	M McConway and M L Read for Applicants	
Judgment:	4 March 2024	

JUDGMENT OF GRICE J
[Validation of Will]

[1]	This application concerns the estate of Rodney Shane Raymond (deceased) who died in January 2021 following an illness. The applicant seek a declaration that a document (notes in an exercise book) is valid as a will under the Wills Act 2007.

[2]	In a  minute  of  16 October  2023  I  made  directions  for  the  service  on  Mr Raymond’s two daughters. One of the daughters, Sandra Ann Moore (Sandy) would receive nothing under the document sought to be validated.1 Service has now been effected and the applicants have complied with all the directions made. No steps have been taken by the persons served.

1	Minute of Grice J dated 16 October 2023 at [15]–[18].

BENNETT AND RIDDER [2024] NZHC 435 [4 March 2024]

[3]	The applicants are Ms Donna Louise Bennett, a social worker; and Ms Charee Ann Ridder, the sister of the deceased. Mr Raymond asked Ms Bennett to take care of his estate and this request was made known to his close friends and associates.

[4]	The applicants would be the executors if the exercise book document is validated The main asset of the estate is a house in Granity on the West Coast. It is subject to a $1000,000.00 mortgage to the ASB. While the exact value of the estate is not specified it is clearly not a large estate.

[5]	It is agreed that Mr Raymond had two natural daughters:

(a)	Sandra Anny Moore (Sandy) — the older daughter; and

(b)	Danielle Raymond (Danielle or Dani) — younger daughter.

[6]	Those daughters would likely take the estate under an intestacy.

[7]	Ms Bennett deposes that Mr Raymond only met Sandy once to the best of  Ms Bennett’s knowledge and belief and had virtually nothing to do with her father. Ms Bennett attests that Sandy  lives  in  Australia.  Sandy  was  not  registered  as  Mr Raymond’s daughter.

[8]	Ms Bennett says Danielle has a drug problem and behaves irrationally. It is alleged that she took money and other things from the house after her father died.

[9]	Charly-Jade Renee Cairns (Charly-Jade) was brought up as Mr Raymond’s daughter. She is the daughter of Mr Raymond’s de facto wife Cindy who predeceased him. She would not take intestacy but would take a share in Mr Raymond’s house under the exercise book document sought to be validated. Charly-Jade has consented to this application.

[10]	A copy of the exercise book document is produced by Ms Bennett. The applicants say Mr Raymond made the notes in this book from January 2021 until September 2021 when he died. He had been diagnosed with liver cancer around January 2021.

[11]	The book has Mr Raymond’s name printed on the cover and a subject name is inserted of “Wishes & Things to happen” with a smiley face. The book sets out his solicitor’s name, and the funeral director’s name and contact details. Under the funeral director’s name is the following: “(The burning man)”. The book lists some items of equipment including fishing gear with question marks. The subsequent provisions provide for a picture to “go with me” and a “watch to go to Dani as was my fathers”. It then refers to the “Harley…sold 50/50 to go to Dani & Charly”. It goes on to say the “house to be sold split “40 – 40 - 20%” to Dani, Charly & Charee”.

[12]	The notes in the book refer to ornaments to be split between Dani and Charly. The book also states his ashes are to be spread and placed out to sea where we “put Cindy's ashes”. Various other gifts of items are directed.

[13]	There also appears a provision relating to garage tools that was crossed out and has blue writing above it (from another author) indicating that Dani had crossed that provision out. An explanation in blue writing (from another author) appears on the last page saying that there was a page missing as it was ripped out and the garage tools were to go to a nephew. The note states: “I can attest to this & Charee can also, we read that in this book the day Shane died” and “Dani had the book after Shane passed away”.

[14]	The  applicants’  solicitor’s  legal   executive   swore   an   affidavit   dated  13 September 2021 referring to the contact she had with Sandy and Dani and also exhibits a typewritten letter dated 17 October 2021 from Charly-Jade saying that she had many conversations with Mr Raymond about his last wishes. It goes on to say that his daughter Danielle was not in a position “to handle all of Shane’s wishes and cash assets alone”. The letter says that Danielle had proved she was not “trustworthy and not stable.” It goes on to say that Mr Raymond hoped to visit his solicitor to finalise these details in the week of his passing. Unfortunately he was unable to see do this.

[15]	If the exercise book document is not validated as a will, the estate will be intestate. Which would result prima facie in the estate being split between his two

natural daughters. He is not survived by a spouse, civil union partner or de facto partners entitled to succeed on intestacy.

[16]	The applicants’ solicitors had emailed both Sandy and Danielle at the outset of this process. Sandy emailed back saying she would not consent to the application. Danielle was apparently abusive and refused to give her consent when contacted by the applicants’ solicitor’s legal executive.

[17]	I directed in my Minute of 23 October 2023 that service be effected on Sandy and Danielle and that the applicants file an affidavit attaching relevant birth certificates (or other legal identification) of the birth children of the deceased. Any steps were to be taken by the persons served within 20 days of service.

[18]	Those steps have been taken. Danielle was served personally in January 2024 and Sandy by email in November 2023 pursuant to her indication that she would receive the documents by email. The email address had been used for correspondence with Sandy earlier. I am satisfied that it was appropriate that substituted service be effected by email in the circumstances. It is not in the interests of justice to further delay consideration of this application.

[19]	I am satisfied that the application for validation should be granted. The exercise book notes are a document as defined under s 6 of the Act. The document is defective as a will as it is not witnessed nor does it contain an attestation clause.

[20]	It seems Mr Raymond died before he had the chance to formalise his testamentary wishes which  he  had  planned  to  do.  The  notes  however  are  in  Mr Raymond’s writing and were carefully prepared in contemplation of his death. The notes are rational and clear in the directions as to disposition of property. It is not necessary for the document to be signed or dated for it to be declared valid as a will.

[21]	In those circumstances I am satisfied that the notes in the exercise book are a document which should be validated as a will and make a declaration in terms of the application dated 12 October 2023.

Grice J

Solicitors:
Anthony Harper Lawyers, Christchurch