Broadbent v Broadbent-Matete
[2024] NZHC 3673
•4 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV2023-485-614735
[2024] NZHC 3673
IN THE MATTER of the Estate of Michael John Broadbent BETWEEN
IRIS KAY BROADBENT
Applicant
AND
MICHELLE YVONNE BROADBENT- MATETE
Respondent
CIV-2023-404-2195 IN THE MATTER
of the Administration Act 1969
BETWEEN
MICHELLE YVONNE BROADBENT- MATETE
Applicant
AND
IRIS KAY BROADBENT
Respondent
Hearing: 18 November – 19 November 2024 Appearances:
S Bailey for M Y Broadbent-Matete P A Fuscic for I K Broadbent
Judgment:
4 December 2024
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 04/12/2024 at 4 pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
BROADBENT v BROADBENT-MATETE [2024] NZHC 3673 [4 December 2024]
Introduction [1]
Facts/evidence[6]
The law[43]
The incomplete will [47]
Mr Broadbent’s testamentary intentions[59]
Conclusion[73]
Costs[77]
Introduction
[1] This decision concerns cross-applications in respect of the estate of Michael John Broadbent. Mr Broadbent died on 3 May 2023. At the time of his death, he was married to Iris Broadbent, but the couple had been separated since 2016.
[2] During the relationship Mr and Mrs Broadbent accumulated relationship property including two houses, one at Mahia Road, Manurewa and one at Ainsdale Place, Manurewa. Both properties were owned by Mr and Mrs Broadbent as tenants in common in equal shares.
[3] Mrs Broadbent applies for probate of a will executed by Mr Broadbent in 2003 under which she is the sole beneficiary of his estate. This is opposed by Mr Broadbent’s four children.
[4] Michelle Broadbent-Matete is Mr Broadbent’s daughter and one of the four children of his first marriage. She applies under s 14 of the Wills Act 2007 to validate an incomplete will and four other documents collectively as Mr Broadbent’s will. The documents relied on are:
(a)an incomplete and unsigned will prepared by Mr Broadbent in 2023;
(b)a transcript of a conversation between Mr Broadbent and his son Pierre Broadbent in January 2023;
(c)an affidavit sworn by Mr Broadbent on 7 February 2023 in support of a dissolution of his marriage to Mrs Broadbent;
(d)file notes of a conversation between Mr Broadbent and a lawyer on 7 February 2023; and
(e)a proposed agreement dated 27 March 2023 between Mr Broadbent and Mrs Broadbent regarding the division of their relationship property.
[5] Ms Broadbent-Matete argues that the documents taken together prove that Mr Broadbent did not intend to leave his estate to Mrs Broadbent but rather intended that his share of the relationship property would be divided between his four children.
Facts/evidence
[6] Mr Broadbent and Mrs Broadbent met in 2000 and began a relationship in 2002. They were married on 23 March 2003.
[7] Mr Broadbent had four adult children from his first marriage, Odette Broadbent, Michelle Matete-Broadbent, Cherie Broadbent and Pierre Broadbent. Mrs Broadbent also had children from her first marriage.
[8] On 9 November 2003, Mr Broadbent executed a will. Mrs Broadbent and Michelle Broadbent-Matete are the named executors of that will.
[9] In June 2012, Mr and Mrs Broadbent acquired the property at Mahia Road, Manurewa as tenants in common in equal shares with a mortgage to the Australia and New Zealand Bank (ANZ).
[10] In September 2014, Mr and Mrs Broadbent acquired the property at Ainsdale Place, Manurewa, also as tenants in common in equal shares, with a
mortgage to the Bank of New Zealand (BNZ). Mrs Broadbent’s children from her previous marriage provided funds for the deposit.
[11] In September 2016, Mr and Mrs Broadbent separated. They had been living together at the Mahia Road property before the separation. The separation was not by agreement and there was no separation order.
[12] After the separation, Mrs Broadbent remained at the Mahia Road property and Mr Broadbent resided at the Ainsdale Place property. Michelle Broadbent-Matete was also living at the Ainsdale Place property and at times her brother and sisters also lived there.
[13] Mr Broadbent was in a de-facto relationship with Melody Andersen‑Armstrong from November 2016 until his death. Ms Andersen‑Armstrong and Mr Broadbent lived together in a sleepout at the Ainsdale Place property. Mr Broadbent continued to pay the mortgage on the property.
[14] Ms Andersen‑Armstrong was served with the current application to validate the incomplete will but has taken no action in respect of these proceedings.
[15] Mr Broadbent made attempts to commence relationship property proceedings after he and Mrs Broadbent separated. Mrs Broadbent opposed his applications, and the proceedings were not completed. Mr Broadbent was very concerned at the cost of legal fees and wished to avoid lawyer’s fees wherever possible.
[16] It is apparent that there was animosity between some members of the family in the years prior to Mr Broadbent’s death. There was evidence that Mrs Broadbent assaulted Ms Andersen-Armstrong and that Ms Anderson-Armstrong assaulted Mrs Broadbent, there were Family Court proceedings involving protection orders, and police were called on at least one occasion.
[17] Prior to Mrs Broadbent finding out about Mr Broadbent’s terminal cancer diagnosis in 2022, it is said that she visited the Ainsdale Place property sporadically. Those visits included: a visit in 2016 when she returned Mr Broadbent’s personal
property leaving it outside the house; a visit sometime between 2016 and 2017 when she changed the locks on the property while those residing there were out; in 2017 when she took Mr Broadbent’s boat and trailer; and when she returned a bus that she and Mr Broadbent owned leaving it outside the property. These visits all appear to be in the context of the relationship breakdown.
[18] This relationship evidence is largely irrelevant to the matters that I must decide. It is not seriously suggested that Mr and Mrs Broadbent would have rekindled their relationship and resumed living as husband and wife. Mrs Broadbent suggests that he seemed relieved when she told him in 2022 that she did not want a divorce and that he nodded slightly when she said that she wanted the houses back. I did not find Mrs Broadbent’s evidence about the state of the relationship reliable. Mr Broadbent began his relationship with Ms Andersen-Armstrong in 2016 and it is clear that he had no intention of resuming his relationship with Mrs Broadbent. He regarded the marriage as over. His conversation with his son and text messages referred to below make this obvious.
[19] In 2022, Mr Broadbent’s longstanding prostate cancer was diagnosed as stage four and terminal. From Christmas 2022, Michelle Broadbent-Matete was her father’s caregiver. Mr Broadbent was hospitalised in early 2023 and returned home supported by Hospice palliative care.
[20] After Mr Broadbent received the terminal diagnosis, he recommenced discussions with Mrs Broadbent to settle their relationship property. It is clear that this was with the encouragement of his daughter, Michelle Broadbent-Matete, and his son, Pierre Broadbent, however, it is equally clear that Mr Broadbent was a forthright and determined man who was capable of making, and did make, his own decisions.
[21] On 27 January 2023, Pierre Broadbent recorded a conversation with his father. Mr Broadbent was discussing his property and said that he wanted somewhere for everybody to live. He said that he might have to “take over the management of it” — which I take as a reference to the management of the Ainsdale Place property. He foresaw a problem with the management of the property because of a perception that Michelle Broadbent-Matete “likes to railroad people”.
[22] In the conversation, Mr Broadbent referenced Mrs Broadbent having “twigged” that he was dying saying it removed the “edge of surprise” and that he intended to “hit her with a divorce in three weeks’ time”. He said “we know she is going to hang around here like a blowfly” before discussing why the property was in joint names. Mr Broadbent said he was not ok with giving up his share in both houses. He understood the argument that he should give up his share in the Ainsdale Place property remarking “this is the one I can understand they put up the money for it we didn’t have any” but agreed with Pierre Broadbent that he had paid the mortgage ever since. There is reference in the conversation to an agreement apparently to pay interest on the deposit money provided by Mrs Broadbent’s children and to the fact that Mr Broadbent had not paid any interest. Mr Broadbent said that if “they” made a point of it he would go back to plan B and file for divorce. Mr Broadbent said that “they should have to pay me out for my share of Mahia Road”.
[23] At one point in the conversation Pierre Broadbent said that “[Michelle Broadbent‑Matete] has already had her fair share of everything and more”. Mr Broadbent said, “yes she has”. The two then discussed the value of Mr Broadbent’s interest in the relationship property — the discussed figures closely resemble those in a proposal agreement later provided to Mrs Broadbent. There was discussion about what would happen if the properties were sold and the concern about where everyone would live and what Mr Broadbent would do with his payout. In that context, Pierre Broadbent said that he knew his father wanted to provide something for Ms Andersen-Armstrong and Mr Broadbent agreed but said that it did not look like Ms Andersen-Armstrong was entitled to anything.
[24] On 7 February 2023, Mr Broadbent went to the Papakura Family Court and signed an application to dissolve his marriage to Mrs Broadbent. He swore an affidavit to accompany the application. The application was not filed, apparently because Mr Broadbent was told that he needed an original copy of his marriage certificate which he did not have.
[25] Also on 7 February 2023, Mr Broadbent visited a lawyer, Graham O’Brien of Insight Legal with his daughter Michelle Broadbent-Matete. He wanted Mr O’Brien to assist with an enduring power of attorney giving his daughter Michelle Broadbent-
Matete power of attorney in respect of medical matters. He told Mr O’Brien that he did not have a will but that he had a will kit and would prepare his will himself saying that he could not afford to pay too many fees. Mr Broadbent said that he would appoint his daughter, Michelle Broadbent-Matete, and his son, Pierre Broadbent executors of his will, and that he intended his four children to share his property.
[26] Mr Broadbent told Mr O’Brien that he thought the properties he owned with Mrs Broadbent were jointly owned and that he and his wife were currently working out “who gets what”. He said that they were talking about “figures”. Mr Broadbent was concerned that Mrs Broadbent would be claiming more than 50 per cent of the relationship property which would be more than his family could afford. Mr O’Brien’s observation was that this appeared to worry Mr Broadbent.
[27] Mr O’Brien’s very clear impression was that Mr Broadbent wanted his relationship property to be divided from his estranged wife’s property and wanted his children to share his estate. It was clear that he did not wish to leave his share of the assets accumulated in his relationship to Mrs Broadbent. Michelle Broadbent-Matete was present during the meeting, but Mr O’Brien’s evidence was that Mr Broadbent was very forthright and not apparently influenced by the presence of his daughter.
[28] In late March or early April 2023 a written proposal, dated 27 March 2023, was provided to Mrs Broadbent by Michelle Broadbent-Matete. The proposal was that the properties be sold, and the proceeds divided. There was also a text discussion about an alternative solution whereby Mrs Broadbent would retain the Mahia Road property and Mr Broadbent, or his estate, would retain the Ainsdale Place property with a cash adjustment because the Ainsdale Place property was the more valuable property.
[29] Pierre Broadbent gave evidence that he helped his father in preparing the proposal document, assisting in particular with the figures. The proposal document proposed that Mr Broadbent’s share of the relationship property would amount to about $640,000. The proposal records:
The children of Michael have an interest in respect of being beneficiaries of a will, This interest is if a settlement should be made to the estate of Michael.
They are: Odette Broadbent
Michelle Broadbent Cherie Broadbent Pierre Broadbent
[30] Between January and April 2023, Mrs Broadbent visited Mr Broadbent both at hospital and at home.
[31] On 12 April 2023, Mrs Broadbent sent a text message to Mr Broadbent saying, “my proposal has gone to yr lawyers swayne mcdonald”. The following day, she sent another text “Wud u like me to come visit u there in hospital”. This was followed a few hours later by a text which said:
I will hv a few options for you to look at re your proposal to see if agreement can be reached asp or not. if not then we will wait and sort out afterwards during probate.
Need yr lawyer details for our lawyer to send reply to you. As always wishing you lots of loves and hugs.
[32] On 18 April 2023, Mrs Broadbent visited Mr Broadbent at hospital. Mrs Broadbent says that when she was there Mr Broadbent told her that she was “the only one who had his Will” and that no one else had one. Mrs Broadbent says that Mr Broadbent was affectionate and said “I love you” to her. No one else was present at the time.
[33]On 21 April 2023, Mrs Broadbent sent the following text to Mr Broadbent:
As 4 the properties 4gt the offer. Just get off them thy not yours never were an u know it. We can cash u out some dollars but $640 aint happening.
$200.000 now an yr kids can still live there if thy want.
[34] A reply sent from Mr Broadbent’s phone a few hours later said “Thank you for your cash offer. Will consider and get back to you in a few days.” There were then further messages from Mrs Broadbent regarding Mr Broadbent’s health and her concern for him.
[35] On 24 April 2023, Mrs Broadbent sent a text message to Mr Broadbent saying that it looked like there were a couple of payments missed, referring to mortgage
payments for the Ainsdale Place property. Mrs Broadbent then messaged “or did girlfriend hv a spend up. Alright 4 some aint it” and then a further text on the same day “Nothing changed then I see”.
[36] Mr Broadbent died on 3 May 2023 and his funeral was held on 8 May 2023. On 15 May 2023, Michelle Broadbent-Matete informed Mrs Broadbent of Mr Broadbent’s death and told her that his funeral had already occurred. Later that day, Mrs Broadbent took the 2003 will to her lawyers, Law & Associates, and instructed them to advertise for any later wills. No response was received.
[37] On 15 May 2023, Michelle Broadbent-Matete spoke to Mrs Broadbent’s daughter, Darlene Tuiono by telephone and says she advised Ms Tuiono that Mr Broadbent had left an incomplete will and that an application would need to be filed with the Court. Ms Tuiono says that Michelle Broadbent-Matete told her that a will had been started but not finished but she did not recall being told that the incomplete will would require application to the Court.
[38] Mrs Broadbent continued to pursue probate of the 2003 will. A copy of the 2003 will was provided to Michelle Broadbent‑Matete on 22 May 2023 by Law & Associates.
[39] Initially, Michelle Broadbent-Matete accepted that the 2003 will was Mr Broadbent’s only existing valid will and agreed to attend the offices of Law & Associates to sign the probate documents in respect of the 2003 will. Before the scheduled meeting, Michelle Broadbent-Matete advised that she would no longer be attending because she had changed her position.
[40] On 3 August 2023, Mrs Broadbent obtained an order nisi by application calling upon Michelle Broadbent-Matete to show cause why probate of the 2003 will should not be granted to Mrs Broadbent alone. Mrs Broadbent considered that Michelle Broadbent‑Matete would neither renounce her executorship nor join in an application for probate.
[41] At the time of Mr Broadbent’s death, the people residing at the Ainsdale Place property included Ms Andersen-Armstrong; Michelle Broadbent-Matete and her 11‑year‑old daughter; and Pierre Broadbent. After Mr Broadbent died, Ms Andersen- Armstrong moved out of the address.
[42] On about 17 August 2023, Ms Broadbent-Matete received a letter at the Ainsdale Place property advising that the house was under property management and that a property manager would be visiting to discuss the terms of a tenancy agreement. On 21 August 2023, Barfoot and Thompson sent an email advising they had been instructed by the property owner to take over management of the Ainsdale Place property. Michelle Broadbent-Matete moved out of the property in early 2024. Pierre Broadbent was subsequently trespassed on 20 April 2024 and moved out of the address.
The law
[43] Section 14 of the Wills Act enacted a fundamental change to the law in New Zealand enabling the validation of a document as a will even where the document does not meet the legal requirements for a valid will. Since it was enacted, there have been hundreds of decisions concerning its application. Many of those decisions traverse the caselaw and I see no need to reword what is uncontentious and has been set out in many decisions already. I adopt the discussion of the law set out in Cox v Dobson below:1
The law
[23] Section 14 of the 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.
1 Cox v Dobson [2020] NZHC 2644.
(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.
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] Section 11 of the Act provides the requirements for validity of wills, and states that a will must be in writing, signed, and witnessed.
[25] The requirement that the document appear to be a will is concerned with substance rather than form.2 The critical inquiry is whether the document does any or all of the things described in the definition of the word “will” in s 8 of the Act:
8 Meaning of will
(1)Will means a document that—
(a)is made by a natural person; and
(b)does any or all of the following:
(i)disposes of property to which the person is entitled when he or she dies; or
(ii)disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or
(iii)appoints a testamentary guardian.
…
[26] Section 6 of the Act defines a “document” as “any material on which there is writing”. A “document” includes an email,3 and any electronically stored document visible on a screen.4
[27] Whether a document appears to be a will turns on whether the document has the effect of disposing of a person’s property when he or she dies. In
2 Re Campbell (deceased) [2014] 3 NZLR 706, [2014] NZHC 1632 at [11].
3 Re Pinker [2015] NZHC 660.
4 Blackwell v Hollings [2014] NZHC 667.
determining whether a document expresses the testamentary wishes of the deceased person, a Court is entitled to consider evidence of the deceased’s testamentary intentions and of statements made by the deceased person.5
[28] The Court can adopt a robust approach to the application of s 14 and the evaluation of whether the document appears to be a will, provided it can be satisfied the document represented the intentions of the deceased.6
[29] A person who sets out to express his or her testamentary intentions should not have those intentions frustrated by technicalities, and a court should endeavour to give effect to the deceased person’s intentions.7 Where there is evidence of the deceased person’s intentions, it is preferable that those intentions are complied with, rather than giving effect to the disposition of property which would take effect under a previous will.8
[30] In Caird v Caird, Mander J said:9
The existence of the document will of itself be an indication that the deceased person did not wish the disposition which would otherwise occur to take place.10 However, it must be established on the balance of probabilities that the evidence as a whole, including evidence of the will-maker’s statements and testamentary intentions, that the document expresses that person’s intentions.11 The test is not an objective one. It is specific to the particular deceased person and no two cases will necessarily be the same.12 Any evidence which may assist to determine that question may be taken into account.13
[31] The burden of proof rests with the applicants in the present case, and they must discharge it on the balance of probabilities.
[44]Davidson J held in Re Kirner:14
[22] It appears from a review of the authorities that a robust approach to such applications has been taken. While the s 14 power is both broad and remedial in purpose, the adoption of a robust approach still requires the Court to carefully consider whether the evidence put before it, considered in aggregate, is such that it can be satisfied that the document put before it, said to be a will, does actually reflect the testamentary intentions of the deceased.
[45] Professor Nicola Peart explains that the two fundamental principles that underpin the law governing wills are: first, the need to uphold the ascertainable
5 Re Feron [2012] 2 NZLR 551 (HC).
6 Caird v Caird [2018] NZHC 1605 at [34].
7 Re Wong [2014] NZHC 2554 at [24].
8 Re Campbell (deceased), above n 2, at [18].
9 Caird v Caird, above n 6, at [40].
10 Re Campbell (deceased), above n 2, at [18].
11 At [16]; and Re Wong, above n 7, at [24].
12 Re Campbell (deceased), above n 2, at [16].
13 At [15] and [17].
14 Kirner v Falloon [2015] NZHC 1873 at [22].
intentions of will‑makers; and second, the need to ensure that care is taken “in determining whether what is claimed to be an expression of a will maker’s wishes is genuinely so”.15
[46] More than one document can collectively be a valid will. In Winterburn v Wilson Gendall J approved three documents as together comprising a will saying:16
Each of the three documents here individually do not by themselves satisfy a testamentary intent…, read together they do demonstrate a clear testamentary intent as to how she wishes that her property is to be disposed of and how her affairs are to be handled after her death.
The incomplete will
[47] Michelle Broadbent-Matete gave evidence that she had provided her father with a hardcopy will kit in the months before his death.
[48] Pierre Broadbent said that he had provided his father with a link to a website, which also contained templates for a will. Following Mr Broadbent’s death, Michelle Broadbent-Matete provided a document to Mr O’Brien and sought advice about it. The document was typed and appears to be a draft will.
[49]The incomplete will reads:
THIS IS THE LAST WILL AND TESTAMENT OF MICHAEL JOHN BROADBENT
DATED: 2023
THIS IS THE LAST WILL AND TESTAMENT OF Michael John Broadbent of 9 Ainsdale Place, Manurewa, Auckland 2120. Retied [sic]
1. I REVOKE all earlier Wills Made by me.
2. I APPOINT:………………………….
3. Of.................................................................. and
4. ………………………………………..
15 Nicola Peart “Where There is a Will, There is a Way — A New Wills Act for New Zealand” (2007) 15 Wai L Rev 26.
16 Winterburn v Wilson [2016] NZHC 1422 at [29].
Of: ……………………………………
5.To be the Executors and Trustees of this my Will (referred to herein as my Trustees) PROVIDED HOWEVER that if either one dies before me or is unwilling or unable to act as my Executor and Trustees THEN I APPOINT
………………………………OF ………………….as my substitute Executor and Trustee.
I MAKE the following bequest and legacies free of all duties: I Give: the sum of...................................................... to Odette Maureen Broadbent
I Give: the sum of......................... to Michelle Yvonne Broadbent Matete
I Give: the sum of......................... to Cherie Anne Broadbent
I Give: the sum of......................... to Pierre Malcolm Broadbent
I Give: My tools to Michelle and Pierre they can decide between themselves what they would like.
My car is to be sold and money from that to be divided between my four children Odette, Michelle, Cherie and Pierre.
I Give: Michelle all my paper work photos including what is on the computer. Copies of photos to be made for Odette, Michelle, Cherie and Pierre.
I Give: my clothing to my children if they would like them, otherwise they can be donated to the Salvation Army Shop.
Initials of
Will Maker
Initials of
Witness
Initials of
Witness
……………
……………
……………
If any children of mine dies prior to attaining a vested interest in my Estate without leaving a child or children Then I DIRECT that the share which that child would otherwise have taken be divided among all of my remaining children in equal shares as tenants in common.
I DECLARE that my Trustees shall have the following powers (exercisable in the absolute discretion of my Trustees) in addition to those conferred on executors and trustees by statute:
To retain without being liable for any loss caused by so doing, any asset investment or security held by me at my death and to invest any moneys available for investment in any investment of whatever nature whether trustee investments or otherwise;
To sell, mortgage, lease, exchange or otherwise dispose of the whole or such parts of my Estate as my Trustees may consider necessary or expedient, such power to be exercised as though my Trustees where the absolute beneficial owner of my Estate:
To apply the whole or any parts of the income or capital of the expectant presumptive contingent or vested share of any beneficiary under this my Will for or towards his or her maintenance education benefit or advancement with power to pay the same to
guardian of any minor beneficiary without being responsible to see the application thereof:
To appropriate and partition any real or personal property forming part of my Estate (and for such purposes to determine the values thereof) to or towards the share of any beneficiary of beneficiaries under my Will:
To determine in all cases of doubt whether any money coming into the hands of my Trustees is capital or income or whether any loss or outgoings should be charged against capital or income:
Initials of Initials of Initials of
Will Maker Witness Witness
…………… …………… ……………
To exercise sell or refrain from exercising any right or privilege arising out of the ownership of any shares or other investment:
To manage any part of my Estate and to carry on any business conducted by me at the date of my death (whether conducted alone or in partnership with any other person) with powers to be exercised as though my Trustees were the absolute beneficial owners of my Estate.
I wish to have a small family service with a few selected friends. Michelle has the list.
That I am to be cremated and held until a time where I can be scattered on the sea.
DATED this:………..day………………month.............................. year
SIGNED by
………………………….. ………………………….. Name Michael John Broadbent Signature of Will Maker
In our presence and attested by us in his/her presence:
Witness 1 Witness 2
Signature………………. Signature……………….
Occupation…………….. Occupation……………..
Place of Residence:…… Place of Residence:……
[50] The incomplete will appears to have been prepared using a template, although Pierre Broadbent gave evidence that his father was capable of producing and
formatting such a document himself. Mr Broadbent had the use of more than one computer in the months before his death.
[51] Michelle Broadbent-Matete said that her father gave her a USB stick17 and told her to print out the incomplete will that was contained on it. She also said that she gave a hard copy to her brother, Pierre Broadbent.
[52] Mrs Broadbent suggests there is a question as to whether Michelle Broadbent‑Matete and/or Pierre Broadbent created the incomplete will themselves. Both denied having anything to do with the creation of it.
[53] The evidence from Michelle Broadbent‑Matete and Pierre Broadbent about how and when they located or received the incomplete will, was somewhat confused and contradictory. When giving evidence about locating the incomplete will, however, Michelle Broadbent‑Matete and Pierre Broadbent were talking about events that occurred during a difficult time for them, namely the days immediately following their father’s death. They were coping not only with his death and the arrangements that had to be made for the funeral but with a concern that they might lose their home. I accept that neither realised initially that an unsigned draft document could be given any legal effect.
[54] Importantly, in February 2023, Mr Broadbent told Mr O’Brien, an entirely independent witness, that he had a will kit and would prepare his own will. The incomplete will is consistent with Mr Broadbent’s discussion with Mr O’Brien including the lack of any reference to Ms Andersen-Armstrong. Mr Broadbent, when telling Mr O’Brien about his testamentary intentions, said that he wanted his property shared between his four children with Michelle Broadbent-Matete and Pierre Broadbent as executors of his will.
[55] Mrs Broadbent says that it is suspicious that Ms Andersen-Armstrong was not included as a beneficiary in the incomplete will. That must be considered in light of the fact that Mr Broadbent did not mention the existence of a de facto partner to Mr O’Brien; and he did not tell Mr O’Brien that he wanted to include his de facto
17 Which Ms Broadbent-Matete referred to as “thumb drive”.
partner in his will. He was very clear that he wanted his property shared between his children.
[56] There is some logic in the submission made on behalf of Michelle Broadbent- Matete that the content of the document itself is not consistent with it being fraudulently created. It is significantly incomplete and does not name the executors. It is inexplicable that if the document were created by both or either of the Broadbent siblings, such significant information about them would be omitted. Even the inconsistencies in the evidence of Michelle Broadbent-Matete and her brother are capable of supporting their denials that they created the document. There is a clear lack of collusion and a lack of any prepared story about how or when the document was created.
[57] Mrs Broadbent submits that caution is needed in accepting that the incomplete will was created by Mr Broadbent because the computer upon which it was created has not been identified and presented for inspection. The Broadbent siblings say they do not know which computer their father used, and, in any event, Mrs Broadbent removed some computers from the property, and they do not have access to them.
[58] Weighing the evidence as a whole and having seen and heard the witnesses I consider it proved on the balance of probabilities that Mr Broadbent created the incomplete will himself.
Mr Broadbent’s testamentary intentions
[59] Mrs Broadbent submits that Mr Broadbent’s final testamentary intentions are uncertain. She says that Mr Broadbent may have been unsure about leaving his estate to his children and about how to share his property amongst them. The basis of that submission is a comment made in the recorded conversation about his children having the “use and abuse” of his property and Mr Broadbent’s agreement that Michelle Broadbent‑Matete had already had her “fair share”. Mrs Broadbent also says that any intentions expressed in the various documents were not necessarily final as there was uncertainty about the amount of any settlement of the relationship property. Mrs Broadbent also says that Mr Broadbent had ample time and opportunity to complete the incomplete will — if his intentions were final. Without access to the
computers, it is suggested that the Court cannot be sure that there was not a later version of a will.
[60] Mrs Broadbent relies on her conversation with Mr Broadbent on 18 April 2023 when she says he told her that she had his will and was the only one who had it. She relies on Mr Broadbent saying that he loved her. Mrs Broadbent invites the Court to find that the 18 April 2023 conversation is evidence of Mr Broadbent’s testamentary intentions closer in time to his death.
[61] I did not find Mrs Broadbent a particularly credible witness, but I accept that Mr Broadbent may well have referenced the earlier will and told Mrs Broadbent that he loved her. But that conversation if it occurred was on 18 April 2023. The text messages subsequent to that date show that Mr and Mrs Broadbent were still discussing division of the relationship property and they were not in agreement about it.
[62] Mrs Broadbent herself sent a text message on 12 April 2023 saying that if agreement could not be reached as to the relationship property “we will wait and sort it out afterwards during probate”. I consider that message was intended to reassure Mr Broadbent that their property would be divided and his share available to his children. Whatever Mr Broadbent may have said about his feelings for Mrs Broadbent it is abundantly clear that the relationship was over in his mind, he had been in another relationship for seven years, and he wanted his share of the relationship property.
[63] I have no doubt at all that Mr Broadbent did not intend to leave his property to Mrs Broadbent. All of the evidence points strongly to Mr Broadbent wishing to end the marriage. The fact that Mr Broadbent swore an affidavit in support of an application for dissolution of marriage in February 2023 further supports that position. To the extent that Mrs Broadbent argues that anything Mr Broadbent may have said to her reveals a different position I do not accept it. The evidence is overwhelming that Mr Broadbent regarded the relationship as over, he wanted his share of the relationship property, and he wanted to leave that property to his children.
[64] As to how the property would be left to his children, Mr Broadbent told Mr O’Brien that he wanted his property shared between his children. Mr O’Brien understood that to mean equal shares although Mr Broadbent never specifically used the word equally. I consider that the word sharing generally denotes equal sharing unless qualified in some way. Apart from a suggestion by Pierre Broadbent that Michelle Broadbent-Matete had already had her fair share, there is nothing at all to support the submission that Mr Broadbent intended to distinguish between his children.
[65] Despite Michelle Broadbent-Matete’s presence when Mr Broadbent met with Mr O’Brien, Mr O’Brien formed the firm view that Mr Broadbent knew his own mind and would not be told what to do. During the meeting, Mr Broadbent discussed the executors of his will with Mr O’Brien but told him that he did not wish Mr O’Brien to prepare the will saying that he would do it himself with a will kit. At no stage did Mr Broadbent express any uncertainty to Mr O’Brien about what he intended to do or about how to divide his property. I consider that at the time he spoke to Mr O’Brien, Mr Broadbent had reached a view that his children would share equally in the relationship property settlement he anticipated would occur. Had he been uncertain I have little doubt that he would have told Mr O’Brien that he was still thinking about how to divide his property. He took advice from Mr O’Brien about the need for two executors and he told Mr O’Brien that he intended to prepare his own will leaving his property to his four children.
[66] The incomplete will is consistent with what Mr Broadbent told Mr O’Brien. It names each child in age order and leaves a gap for a monetary amount to be entered. As Ms Bailey submitted, that monetary amount could not have been filled in before the relationship property settlement was reached because Mr Broadbent did not know how much money was available to share between his children. The incomplete will sets out what is to happen if one of his children dies before attaining their share of the estate and says it is to be divided equally amongst the surviving children.
[67] The lack of reference to Ms Andersen-Armstrong in the incomplete will is consistent with Mr Broadbent not discussing her when meeting with Mr O’Brien. Whilst acknowledging to Pierre Broadbent that she was entitled to something as his
partner, Mr Broadbent seems to have decided not to include her in his will. In the conversation with Pierre Broadbent, Mr Broadbent implies that she has had a benefit from the relationship; and he left verbal instructions that she was to be given various household chattels.
[68] Mr Broadbent did not complete his draft will. Michelle Broadbent-Matete gave evidence that her father did not have a clear idea of his life expectancy. He was told it could be days, weeks or up to a year. Pierre Broadbent said that from his observation, his father just became too unwell to give any more energy to the issue. I think that is the most likely explanation.
[69] I find that in 2023 Mr Broadbent intended to revoke any earlier wills and he did not intend to leave his property to Mrs Broadbent. He had begun the process of drafting a new will which reflected his intention to leave his estate to his four children.
[70] As in the case of Re Harvey, I am guided by the principle that the Courts will seek to avoid intestacy and will try to recognise the will-maker’s intentions where those intentions can be ascertained.18
[71] Mr Broadbent’s testamentary intentions are clear from the following documents taken together:
(a)the incomplete will;
(b)the file note of Mr O’Brien;
(c)the affidavit sworn in support of the application for dissolution of marriage; and
(d)the proposed agreement between Mr Broadbent and Mrs Broadbent dated 27 March 2023.
18 Re Harvey [2024] NZHC 1084 at [60] referencing Crawford v Phillips [2018] NZCA 208, [2018] 3 NZLR 247.
[72] I do not include the transcript of the conversation with Pierre Broadbent as I consider that Mr Broadbent likely did not know he was being recorded and did not intend that conversation to have such an effect. The recorded conversation is useful, however, because it is evidence that the proposal document dated 27 March 2023 is a document prepared by or on the instructions of Mr Broadbent and not unilaterally by Pierre Broadbent.
Conclusion
[73] I decline the application by Mrs Broadbent for probate to be granted to her alone of Michael John Broadbent’s will executed on 9 November 2003.
[74] I make an order under s 14(2) of the Act declaring: the 2023 incomplete will; the 7 February 2023 file notes of Mr O’Brien; the affidavit dated 7 February 2023 sworn in support of the application for dissolution of marriage; and the proposed agreement dated 27 March 2023 collectively to be the valid will of Michael John Broadbent.
[75] In consolidating the documents, I declare the following terms to be the last will of Michael John Broadbent:
(a)Any previous wills or testamentary dispositions are revoked.
(b)Michelle Yvonne Broadbent-Matete and Pierre Malcom Broadbent are named as trustees and executors of the will.
(c)Mr Broadbent’s tools are to be given to Michelle Yvonne Broadbent‑Matete and Pierre Malcom Broadbent to decide between themselves who keeps which tools.
(d)The car is to be sold and the money divided between Mr Broadbent’s four children Odette Maureen Broadbent, Michelle Broadbent-Matete, Cherie Anne Broadbent, and Pierre Malcom Broadbent.
(e)All paperwork, photos, including what is on the computer is to go to Michelle Yvonne Broadbent-Matete and copies of the photographs are to be made for Odette Maureen Broadbent, Cherie Anne Broadbent, and Pierre Malcom Broadbent.
(f)The residue of the estate is to be shared equally between Odette Maureen Broadbent, Michelle Yvonne Broadbent‑Matete, Cherie Anne Broadbent, and Pierre Malcom Broadbent.
(g)The terms and powers set out in the incomplete will on the final two pages apply.
[76] Any claims by Mrs Broadbent or Ms Andersen-Armstrong against Mr Broadbent’s estate can be resolved through the Property (Relationship) Act 1976. Given the amount of money involved the parties would be wise to reach agreement rather than to resort to litigation but that is a matter for them.
Costs
[77] I direct the parties to attempt to agree costs. If the parties are unable to agree on costs, I make the following directions:
(a)any application for costs is to be made by memorandum to be filed and served within 10 working days of the date of this judgment;
(b)any reply is to be filed and served by memorandum within a further
five working days; and
(c)memoranda as to costs are not to exceed two pages.
[78]Costs will be determined on the papers.
Wilkinson-Smith J
Solicitors:
McVeagh Fleming, Auckland S Bailey, Auckland
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