Bullivant-King v King
[2021] NZHC 963
•4 May 2021
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 ARE TO BE EITHER GIVEN AWAY, SOLD OR DISPOSED OF AS SEEN FIT BY MICHELLE VICTORIA STRANGE, JONATHON [sic] IRWIN KING, SHERIDAN BRETT KING AND ANDREW BULLIVANT. ANY MONEY REALISED TO BE DISTRIBUTED EQUALLY BETWEEN THESE FOUR. ALL OTHER ASSETS TO BE DISPOSED OR KEPT AT THEIR DISCRETION.
LIFE INSURANCE: AMP INSURANCE CASH BNZ HASTINGS BONUS BONDS BONUS BONDS
SHOULD I DIE OVERSEAS MY BODY IS NOT TO BE TRANSPORTED BACK TO NEW ZEALAND. CREMATION ONLY AND ASHES CAN COME BACK TO NZ. THERE IS TO BE NO FORMAL FUNERAL SERVICE. SHOULD I DIE IN NEW ZEALAND MY BODY IS TO BE CREMATED AND ASHES TO BE DISPOSED OF AS AND WHERE SEEN FIT BY MY CHILDREN & WIFE.
SHOULD I SUFFER FROM ILLNESS OR MEDICAL CONDITION THAT RENDERS ME INCOMPETENT OR UNABLE TO MAKE RATIONAL CONDITIONS OR DECISIONS I APPOINT:
MICHELLE VICTORIA STRANGE JONATHON IRWIN KING
TO HAVE POWER OF ATTORNEY OF MY AFFAIRS.
07 JULY 2018
SIGNED: [SIGNATURE]
CHRISTOPHER ARTHUR KING
[9]Christopher’s signature is on the document, but it is not witnessed.
The assets of the estate
[10]The assets of Christopher’s estate are described as follows:
(a)AMP Term Life Policy $88,684;
(b)BNZ Account $27,594.33;
(c)Bonus Bonds $45,650; and
(d)2007 Nissan Dualis motor vehicle $9800.
[11] Christopher and Raewyn lived together in Hastings. They jointly owned the matrimonial home, which by operation of law passed to Raewyn by way of survivorship on Christopher’s death and therefore does not form part of Christopher’s estate.2
The application
[12] The application to validate Christopher’s handwritten document is based on it being a written record of his testamentary intentions.
[13] A wills enquiry of Hawke’s Bay law firms revealed that there were no other wills in existence.
The Wills Act 2007
[14] Section 11 of the Act sets out the requirements for a valid will, which includes a requirement that the will is witnessed. Section 14 of the Act provides that the High Court may declare a will valid in certain circumstances, even though it does not comply with s 11 of the Act:
14 High Court may declare will valid
(1)This section applies to a document that—
(a)appears to be a will; and
2 G Hinde and others Hinde, McMorland & Sim Land Law in New Zealand (online ed, Lexis Nexis) at [13.004]-[13.005]; Gateshead Investments Ltd v Harvey [2014] NZCA 361 at [13].
(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.
[15] Christopher’s note constitutes a “document”.3 The document does not comply with the requirements of execution and attestation of s 11 of the Act. The requirements of s 14 that must be assessed in this case are:
(a)whether the document appears to be a will; and
(b)whether I can be satisfied that the document expresses Christopher’s testamentary intentions.
Does the document appear to be a will?
[16] The requirement that the document appear to be a will is concerned with what is conveyed by the content of the document rather than its form.4 The question 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.5 Section 8 of the Act provides as follows:
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
3 Wills Act 2007, s 6: document means any material on which there is writing.
4 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].
5 At [11].
(iii)appoints a testamentary guardian.
(2)When this Act refers to making, changing, revoking, or reviving a will, it means a will as defined in subsection (1).
(3)When this Act refers to a will in any other context, it means whichever is appropriate of the following:
(a)a will as defined in subsection (1); or
(b)a document that changes a will as defined in subsection (1); or
…
[17] 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.
[18] Having reviewed the document and the evidence of the applicant as to its writing, I am satisfied the note appears to have the effect of recording how Christopher wished to have his property disposed of after his death. The document is headed “This is my last will and testament”. It adopts legal terminology such as “should I predecease my wife”, and refers to Raewyn as “the main beneficiary and executor of my last will and testament”.
[19] The document sets out Christopher’s intentions as to his possessions and the most significant assets are described. The document deals with what Christopher wishes to happen to his body upon his death.
[20] The document also deals with Christopher’s wishes in the event of illness or medical condition rendering him incompetent or unable to make “rational conditions or decisions”, appointing Michelle and Jonathan to have power of attorney of his affairs.
[21]Accordingly, I find that the document appears to be a will.
Does the document express Christopher’s testamentary intentions?
The evidence
[22] Raewyn has filed brief evidence to demonstrate that the document sought to be validated recorded Christopher’s testamentary intentions. The respondents have filed
evidence expressing their view that the document does not express Christopher’s testamentary intentions.
[23] None of the deponents were required for cross-examination, and the application proceeded on the basis of the affidavit evidence.
[24]I review the evidence as follows.
[25] Jonathan and Michelle have filed affidavits on behalf of the respondents in opposition. The third sibling, Sheridan, lives in a remote part of Canada and was unable to file an affidavit, but Jonathan advised that Sheridan is supportive of the respondents taking part in the proceedings.
[26] Jonathan noted first that he was surprised that his father had made only a handwritten document, as he thought Christopher would have had a will in place prepared by a lawyer or something more formal than the document in question. Jonathan also noted that his name, as it appears in the document, is misspelt as “Jonathon”, when the correct spelling of his name is “Jonathan”. Jonathan says that his father had never made that mistake in the past, and he does not believe Christopher would have misspelt his name. Jonathan questions his father’s frame of mind at the time he made the document, or whether he was under Raewyn’s influence when doing so.
[27] More fundamentally, Jonathan says that the document is quite different to what his father had consistently indicated about his intentions. He recalls a conversation with Christopher on 15 August 2019 when Christopher was in hospital after having a heart attack. Christopher told Jonathan that his affairs were in order and that Jonathan “had nothing to worry about”. Christopher told him that things had not changed, and that he had put things in place to avoid what had happened to his (Christopher’s) father’s estate. When Christopher’s father died, all of his estate went to Christopher’s stepmother and, Jonathan says, Christopher had made it clear he did not want this to happen to his estate. Christopher had told him that he and Raewyn kept their money in separate accounts and “what was hers was hers and his was his”.
[28] Jonathan also recalls a Skype conversation with Christopher on 8 July 2018, before Christopher and Raewyn left for the United Kingdom to attend Andrew’s wedding. This was on the day after the document was signed. The family were concerned about Christopher’s health and the impending trip, and that was a subject of the Skype discussion – Christopher and Jonathan discussed the complications of Christopher’s medical condition and what would happen if he died.
[29] Jonathan says that he generally contacted Christopher in the early evening as Christopher was a heavy drinker in the evenings, which exacerbated his health conditions. Jonathan says that Raewyn was in the room at the time of the Skype conversation, and she told him that she did not want or need anything of Christopher’s. Christopher again told Jonathan that his affairs were in order, that Jonathan had nothing to worry about, and that he did not want a repeat of what had happened with his own father’s estate.
[30] Raewyn gave Jonathan a copy of the document to read in November 2019, when Christopher was in the ICU. He expresses a concern that Raewyn had destroyed some of Christopher’s documents, including his diary, in the two weeks prior to his death.
[31] Although he has not filed an affidavit in the proceeding, Sheridan has provided an email (annexed to Jonathan’s affidavit) in which he says that Christopher did not want Raewyn and Andrew to have “everything forever”.
[32] Both Jonathan and Michelle confirm that the document is in Christopher’s handwriting. Michelle echoes Jonathan’s account of Christopher being very unwell at the time it was written. She refers to approximately three conversations she had with Christopher over the previous five years about his estate, where he told Michelle that (referring to Raewyn) “what’s mine is mine and what’s hers is hers” and “she has to have a roof over her head until she dies and the rest is for you kids”.
[33] Michelle also refers to the situation with Christopher’s father’s estate and that Christopher was very clear that he did not want that situation to happen when he died.
[34] Christopher’s sister, Madeline King, provided a letter to Jonathan and Michelle which is appended to Jonathan’s affidavit. Madeline also refers to the situation that arose when Christopher’s father died, and the distress and division that the situation caused. She refers to several occasions where she and Christopher chatted about that, and he said that he never wanted his family to have to deal with what had occurred then and that his wishes were clearly laid out in his will. Christopher told Madeline that “what was his was his and what was Raewyn’s was hers” as they each had their own homes and their children to provide for. Madeline, too, expresses her surprise that Christopher did not have his will witnessed, given that he was, as she says, “quite pedantic” about having things clearly organised.
[35] Raewyn’s evidence is limited. She says that she watched Christopher write the document at their kitchen table, two days before the two of them left to go to the United Kingdom to attend Andrew’s wedding. Raewyn told Christopher she thought he would need to have the will witnessed but he responded that there was no need because everything was going to her, his wife. She says she would have known if Christopher had made an earlier will or a later will, and she says he had not.
[36]In a Minute dated 10 July 2020, Cull J said:
[5] … On the face of the handwritten Will dated 7 July 2018, it appears there is an outright bequest to his widow, the applicant, should he predecease her. The deceased then makes a series of bequests to his children, “in the event of death of my wife Raewyn Eileen Bullivant-King … as she will be unable to fulfil my last wishes”. This appears to be the deceased’s wish to leave his estate to his children, in the event of the applicant’s death. However, this is problematic.
[37]Raewyn addresses this issue in her second affidavit, saying:
I believe that what the deceased wanted/meant was that his estate should be left to me should I survive him but if I died first then his estate was to go to his children and my son Andrew equally.
[38] Raewyn’s evidence does not address the basis for that belief. She does not refer to any discussions with Christopher about his testamentary intentions other than the reference noted above:
I said to him that I thought he would need to get the Will witnessed. He responded that there was no need because everything was going to me as his wife.
[39] Raewyn has not responded to Jonathan’s evidence about what was said in the Skype conversation on 8 July 2019, or his evidence that she had destroyed some of Christopher’s documents in the two weeks prior to his death. She does not reply to his concern that there might have been a valid will in those documents.
Relationship between the parties
[40] It appears from the respondents’ evidence that the inevitable pain and emotion at the time of Christopher’s death has led to their estrangement from Raewyn. Plainly that is a situation that causes them pain and sorrow, regardless of how Christopher’s assets are disposed of. However, that estrangement is not relevant to the issues I am required to decide.
Any other will?
[41] First, I address the question whether there was any will other than the 7 July 2018 document. The evidence before me was that Christopher had lived in the Hawke’s Bay since he was 19. Counsel for the applicant advised that the usual practice in the profession is to make a will search only in the area in which the deceased lived. I am satisfied that was an adequate search.
[42] As I have noted, Raewyn’s evidence is that she would have known if Christopher had an earlier or later will, and she says he did not. Raewyn has not responded to Jonathan’s evidence that she destroyed some of Christopher’s documents in the period prior to his death. Assuming that is correct, there are any number of possible explanations for why she did so, and I draw no adverse inference from it. However, the lack of evidence from the applicant does make it more difficult for the Court to be satisfied that there was no other will.
Christopher’s testamentary intentions
[43] This Court has previously remarked that a person who, in good faith, sets out to express his or her testamentary intentions should not have those intentions thwarted
by technicalities, and that the Court should endeavour to give effect to the deceased person’s intentions.6 Where there is evidence of the person’s testamentary intentions, it is better that they be given effect to, in preference to the disposition of property which would take effect under any previous will, or in the situation of intestacy.7 The existence of the document is itself an indication that the deceased person did not wish the disposition which would otherwise occur to take place.8
[44] The Court is entitled to take a robust approach to the application of s 14. However, it must be established on the balance of probabilities on the evidence as a whole that the document expresses the deceased’s intentions.9 In reaching a conclusion as to whether a document expresses the testamentary wishes of a deceased person, a Court is entitled to consider evidence of the deceased’s testamentary intentions and of statements made by the deceased person.10
[45] The test is not an objective one. It is specific to the particular deceased person and no two cases will necessarily be the same.11 Any evidence which may assist to determine whether the document expresses the deceased person’s testamentary intentions may be taken into account.12 Cogent evidence is required because of the importance of the declaration sought. In Re Estate of Beaumont MacKenzie J said:13
A fundamental principle underpinning the law governing wills is that great care must be taken in determining whether what is claimed to be an expression of a will-maker's wishes is genuinely so. That care is necessary because a will operates only after its maker has died.
[46] The onus is likely to be satisfied more easily if the application is supported by all the affected beneficiaries, including those who would benefit if the will was not validated. However, the onus may be satisfied even if the application is opposed.14
6 Re Estate of Wong [2014] NZHC 2554 at [24].
7 Re Estate of Campbell, above n 4, at [18].
8 At [18].
9 At [16]; Re Estate of Wong, above n 6, at [24].
10 Wills Act, s 14(3).
11 Re Estate of Campbell, above n 4, at [16].
12 At [15].
13 Re Estate of Beaumont [2013] NZHC 2719, at [11].
14 Re Tutaki HC Hamilton CIV-2010-419-1208, 13 May 2011.
[47] There are two possible interpretations of Christopher’s intent in the words in the document:
(a)Justice Cull’s preliminary view was that the document indicated Christopher’s intention to leave his estate to his children in the event of Raewyn’s death. As the Judge noted, that was problematic.
(b)The other possible interpretation is that Christopher intended that if he died first, Raewyn was to be the main beneficiary and the executor of his will; if Raewyn predeceased Christopher, then all of Christopher’s possessions were to be divided between the four adult children. In my view that is the more likely interpretation and it is also the one favoured by Raewyn. However, in the absence of further evidence as to how she arrived at that view, it is difficult for the Court to reach a conclusive decision on what the words mean. What it does demonstrate is that there is not one, unequivocal interpretation.
[48] The further difficulty is that the respondents say the second interpretation does not reflect Christopher’s intention as expressed to them orally. There are two aspects to that concern. First, Jonathan questions Christopher’s state of mind at the time he made the document, and whether he was under Raewyn’s influence in doing so. Jonathan suggested Raewyn put Christopher under pressure to make the will before they went to the United Kingdom and dictated what was to go in it.
[49] It is clear that Christopher was in ill-health, as a result of complications of diabetes and heart problems at the time he made the document. I do not have any independent evidence before me as to Christopher’s mental and physical health at the time of writing the document. However, nor is there anything to suggest that Christopher’s physical ill-health was such that it impacted on his psychological or cognitive capacity, such that he lacked testamentary capacity or that the document arose out of undue influence.
[50] Raewyn made a will (which was witnessed) three days before Christopher’s document, which is in substantially similar form. While the Court might infer that this
was the model for Christopher’s document, it is not mentioned in Raewyn’s evidence so I cannot reach a conclusion on that. Of course, it would not be surprising if, as between a married couple, that is what occurred. I do not draw any adverse inference from that possibility.
[51] Nor, on the evidence before me, is there anything suspicious or unusual about the timing of the document. Christopher and Raewyn were about to travel to the United Kingdom. That in itself would likely have been a prompt for each of them to make a will. Christopher’s ill-health would no doubt also have been relevant.
[52] The second point advanced by the respondents is that the second interpretation of the content of the document does not reflect what the respondents say Christopher had signalled to them.15 I accept the respondents’ evidence as to their discussions with Christopher.
[53] The evidence for the respondents is clear and consistent on this point. The applicant has not attempted to rebut it. This leaves the Court with little to assist it in attempting to reconcile what Christopher said to the respondents, with the words of the document.
Conclusion
[54] It is relatively unusual for an application under s 14 to be refused but, as MacKenzie J said in Re Estate of Campbell:16
Because the question whether a document expresses the deceased person’s testamentary intentions is case specific and no two cases are the same, it is not appropriate to attach any particular significance to those numbers.
[55] In this case, while I accept the document appears to be a will, the respondents’ evidence raises credible questions as to whether the document does express Christopher’s testamentary intentions. The applicant has chosen not to respond to that evidence.
15 As outlined at [47] above.
16 Re Estate of Campbell, above n 4, at [17].
[56] I acknowledge the submission of counsel for the applicant that the practical outcome of validating the will under s 14 would be substantially the same as an intestacy. However, that does not provide an appropriate reason for validation under s 14. On the totality of the evidence before me, I do not consider it is established to the required standard that the document records Christopher’s testamentary intentions. I am therefore not able to validate the document pursuant to s 14 of the Act.
Result
[57]The application for validation under s 14 of the Wills Act is dismissed.
Costs
[58]The respondents have not sought costs. Each party shall bear their own costs.
Gwyn J
Solicitors:
Willis Legal, Hastings
Copy to:
M V Strange and J I King for the Respondents
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