Bullivant-King v King - [2021] NZHC 963

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-000008

[2021] NZHC 963

UNDER section 14 of the Wills Act 2007

IN THE MATTER OF

the Estate of Christopher Arthur King (deceased)

BETWEEN

RAEWYN EILEEN BULLIVANT-KING

Applicant

AND

JONATHAN IRWIN KING, MICHELLE VICTORIA STRANGE, SHERIDAN KING

Respondents

Hearing: 20 April 2021

Appearances:

M J Wenley for the Applicant

M V Strange and J I King for the Respondents, in Person

Judgment:

4 May 2021

JUDGMENT OF GWYN J

[1] The applicant, Raewyn Bullivant-King, seeks a declaration pursuant to s 14 of the Wills Act 2007 (the Act), declaring a document to be the valid will of her deceased husband, Christopher King.

[2] The respondents, Jonathan King, Michelle Strange, and Sheridan King, are Christopher’s three adult children from an earlier marriage.

[3] Christopher died on 29 November 2019. He had not executed a valid will. His immediate next of kin were the applicant, the respondents, and Andrew Bullivant, the

BULLIVANT-KING v KING [2021] NZHC 963 [4 May 2021]

applicant’s son. In the event of intestacy – that is, if I decline to make the declaration sought – Christopher’s estate will be distributed to the applicant and the respondents.1

[4] The document which Raewyn seeks to be validated as Christopher’s will is a handwritten document headed “THIS IS MY LAST WILL AND TESTAMENT: ALL OTHER WILLS ARE REVOKED”, signed by Christopher and dated 7 July 2018 (the document). The document was not witnessed.

[5] Raewyn brings her application to validate the document as Christopher’s will on the basis that it records his testamentary intentions. The application is opposed by the respondents.

Background

[6] Raewyn and Christopher were married on 16 October 1993. It was Christopher’s third marriage and Raewyn’s second marriage. The respondents are the children of Christopher’s first marriage. Andrew is the child of Raewyn’s first marriage. Christopher regarded Andrew as his son, and the respondents say they regard Andrew as their brother.

[7] Christopher suffered from ill health. He had diabetes and had to have a toe amputated in, it appears, 2018. He had infections post-amputation. He had a second toe amputated in January 2019. Christopher suffered a heart attack in August 2019 and then a second heart attack in November 2019. He was on life support for 14 days before dying on 29 November 2019.

The document sought to be validated as Christopher’s will

[8]The document that Raewyn seeks to have validated is reproduced as follows:

CHRISTOPHER ARTHUR KING
205B SOUTHLAND RD HASTINGS CENTRAL HASTINGS THIS IS MY LAST WILL AND TESTAMENT:
ALL OTHER WILLS ARE REVOKED.

1 Administration Act 1969, s 77.

SHOULD I PREDECEASE MY WIFE RAEWYN EILEEN BULLIVANT- KING SHE SHALL BE THE MAIN BENEFICIARY AND EXECUTOR OF MY LAST WILL AND TESTAMENT.

IN THE EVENT OF DEATH OF MY OF MY [sic] WIFE RAEWYN EILEEN BULLIVANT-KING THE FOLLOWING WILL APPLY AS SHE WILL BE UNABLE TO FULFILL MY LAST WISHES.

ALL MY POSSESSIONS INCLUDING MATRIMONIAL HOME, CAR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 963
Decision Date: 4 May 2021

CaseChat Overview and Summary

Bullivant-King v King is a case in which Raewyn Bullivant-King sought a declaration that a handwritten document was the valid will of her late husband, Christopher King. The respondents, Christopher's three adult children from a previous marriage, opposed the application. The central legal issue was whether the document, which did not comply with the statutory requirements for execution and attestation of a valid will, could be validated under section 14 of the Wills Act 2007. This section allows the High Court to declare a document to be a valid will if it appears to be a will and expresses the deceased person's testamentary intentions, despite not meeting the usual requirements.

The Court found that the document did appear to be a will as it recorded Christopher's intentions regarding the disposition of his property after his death. However, the Court was not satisfied that the document expressed Christopher's testamentary intentions. The evidence presented by the respondents, which was not rebutted by the applicant, indicated that the document's content did not align with Christopher's previously expressed intentions. As a result, the application for validation of the document as Christopher's will was dismissed. The Court emphasized the importance of giving effect to the deceased's true intentions and noted that the decision was specific to the circumstances of this case, as each case involving testamentary intentions is unique. The Court also highlighted that while the practical outcome of validating the will might resemble an intestacy, this was not a sufficient reason to validate the will under section 14 of the Act. Each party was ordered to bear their own costs.

Orders