Bush
[2021] NZHC 733
•1 April 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-490
[2021] NZHC 733
UNDER the Wills Act 2007 IN THE MATTER
of the Estate of Robert Rapi Te Pohe Bush
BETWEEN
BRONWYN MARIA BUSH
Applicant
Hearing: On the papers Appearances:
J R Pullar and A E Kennerley for Applicant
Judgment:
1 April 2021
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 1 April 2021 at 2.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Introduction
[1] The applicant, Bronwyn Maria Bush (Bronwyn), seeks orders pursuant to the Wills Act 2007 (the Act) that:
(a)a document dated 15 July 2015 (the purported revocation) be declared a valid revocation of the deceased’s earlier will dated 16 May 2005; and
RE BUSH [2021] NZHC 733 [1 April 2021]
(b)that a document dated 14 June 2016 (the purported will) be declared a valid will of the deceased.
Background
[2] The deceased, Robert Rapi Te Pohe Bush (Robert), died by suicide on 14 June 2016. The applicant is the sister of the deceased and a beneficiary of the 2005 will and the purported will. In June 2017 Robert’s claim for life insurance was accepted at a value of $225,736.87.
[3]There are three key documents in this claim.
[4] The first is the will signed by Robert and witnessed by two people on 16 May 2005. Bronwyn filed an affidavit in support of her application. In the affidavit, Bronwyn deposes the 2005 will was made 12 years before Robert’s death and Robert’s intentions would have changed significantly in that time. Hence, Bronwyn did not consider the 2005 will accurately reflects Robert’s intentions at the time of his death.
[5] The second key document is the purported revocation by Robert on 15 July 2015, which the applicant wishes to be declared a valid revocation. Bronwyn deposes that, on 15 July 2015, Robert wrote a note on the packet containing the 2005 will that said: “This will has no power or authority. Everything is written in my letter to my sister Bronnie Bush.” In that letter to Bronwyn, Robert set out how he wanted his belongings to be distributed. Although the family do not seek to have this document validated, it clearly states “My last will my previous will is to be forgotten as it no longer has meaning or relevance.”
[6] The third key document is the purported will Robert left via a note on 14 June 2016, the day of his death. Bronwyn explains that she is seeking validation of the purported will Robert left on 14 June 2016 via a note. The purported will says these are Robert’s “final wishings” and “my last wishes with my authority”. It is signed and dated. On this basis, Bronwyn deposes in her affidavit that Robert intended to make a will. Bronwyn says the purported will does not name an executor but that she is happy to undertake the executor role if the validation application is granted.
Bronwyn writes that Robert’s mother, Helen Bush, who was appointed executor in the 2005 will, does not wish to be executor.
[7] Three of the four affected beneficiaries, Rapi Hunia Bush, Helen Lorraine Bush and Neihana Jackson Bush, have executed consents to the order declaring the 2016 document to be a valid will. The other affected beneficiary, Kiana Cotter Te Pohe Bush, Robert’s biological daughter, is a minor, having been born on 21 November 2011.
[8] On 4 December 2020, Osborne J issued a minute dispensing with any requirement for service upon the three adult beneficiaries given the consents they had signed. Osborne J made an order under r 4.35(2) of the High Court Rules 2016 appointing Louise Taylor of Community Law Canterbury as a litigation guardian for Kiana, subject to Ms Taylor filing her written consent. The Judge also dispensed with service on three beneficiaries who the Judge determined had no interest in the outcome of these proceedings, that is, Anania Tawhi, James Keremeta, and Justin Tipa.1
[9] Ms Taylor filed a memorandum on behalf of Kiana dated 3 March 2021. This memorandum advised Kiana would consent to the current application on the condition that funds distributed to the applicant from the estate are held in the trust account of the law firm Taylor Shaw pending execution of a Deed of Family Arrangement between all parties, in which Robert’s estate would be distributed in the following shares: 15 per cent to the applicant, 10 per cent to Robert’s mother, Helen Lorraine Bush, 15 per cent to Neihana Jackson Bush, and 60 per cent to Kiana.2 Any share Kiana received would be placed in trust for her use in later life.
[10] Counsel for the applicant then filed a memorandum on 4 March 2021 confirming the parties had reached an agreement in principle that would resolve any potential claim Kiana might have against the estate if the extant application was granted.
1 They were friends of Robert who were to receive specific gifts of personal possessions under the earlier will which have been honoured.
2 Rapi Bush, Robert’s father, is now deceased which is why no provision is made for him.
Law
[11] The applicant seeks the order declaring the purported revocation valid on the basis it has not been executed in the manner prescribed in s 11(4) of the Act and that it makes clear the deceased’s intention to revoke the 2005 will.
[12] The order declaring the purported will valid is sought on the grounds the purported will has not been executed in the manner prescribed in s 11(4) of the Act and that the purported will expresses the deceased’s testamentary intentions.
[13] Under s 16(b) of the Act, a valid will may be revoked if the will-maker writes a document that makes clear their intention to revoke the will and that complies with s 11. As it is accepted the purported revocation does not comply with s 11, the revocation may also be revoked by being declared valid under s 14.
[14] This Court has power to declare a document a valid revocation of a will or a valid will, pursuant to s 14 of the Act. That section states:
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.
[15] With regard to both the purported revocation and the purported will, the requirements for s 14(1) are met. The purported revocation appears to be a revocation
and the purported will appears to be a will. Both came into existence in New Zealand and neither complies with s 11.
[16]Section 11 of the Wills Act provides:
11 Requirements for validity of wills
(1)A will must be in writing.
(2)A will must be signed and witnessed as described in subsections (3) and (4).
(3)The will-maker must—
(a)sign the document; or
(b)direct another person to sign the document on his or her behalf in his or her presence.
(4)At least 2 witnesses must—
(a)be together in the will-maker’s presence when the will- maker—
(i)complies with subsection (3); or
(ii)acknowledges that—
(A)he or she signed the document earlier and that the signature on the document is his or her own; or
(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)each sign the document in the will-maker’s presence.
(5)As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:
(a)that he or she was present with the other witnesses when the will-maker—
(i)signed the document; or
(ii)acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or
(iii)directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or
(iv)acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)that he or she signed the document in the will-maker’s presence.
(6)No particular form of words is required for the purposes of subsection (5).
[17] Both the purported revocation of 15 July 2015 and the purported will of 14 June 2016 were signed by the will-maker. However, they were not witnessed by two witnesses as required by s 11(4). This means the purported revocation and purported will did not comply with s 11 so that s 14(1)(b) is engaged. Under s 14, the Court may declare a document valid if it is satisfied the document expressed the deceased’s testamentary intentions.
[18] I consider that the purported revocation clearly demonstrates the deceased’s intention to revoke the 2005 will. In stark and express terms, Robert wrote a signed and dated note on the packet containing the 2005 will that said it “has no power or authority” and that “[e]verything” was now written in his letter to Bronwyn. This letter to Bronwyn corroborates Robert’s intention to revoke the 2005 will as it states his “previous will is to be forgotten”. This intention is supported by Bronwyn’s observation that, as the 2005 will was made 12 years before his death, Robert’s intentions are liable to have changed significantly in the intervening time, not least because during that period he found out Neihana was not his biological son and he fathered Kiana. In these circumstances, I am satisfied the revocation document expressed the deceased’s testamentary intentions and the revocation of 15 July 2015 declared valid.
[19] I also consider the purported will expresses the testamentary intentions of Robert Rapi Te Pohe Bush. It was prepared close to his death and in expectation of it. It is written in concise but clear and specific terms, as it says the dispositions are Robert’s “final wishings” and “[his] last wishes with [his] authority”. It disposes of property to which he considered he was entitled. Annexed to Bronwyn’s affidavit is a
transcript of a video on Robert’s phone taken on the day of his death, in which Robert said he wanted Bronwyn to get “everything” he owned and that he hoped there would be something left for Kiana. The video and the purported will do not refer to each other. However, I do not view the contents of the video as materially departing from the intentions expressed in the purported will document, in which Robert says he wants Bronwyn to “have all [his] possessions” and “rights to Kiana … if anything was to happen to Mel Cotter”.3
[20] For all these reasons, in the circumstances, I am satisfied the purported will document expresses the deceased’s testamentary intentions and an order can be made declaring it valid under s 14 of the Act.
Conclusion
[21] Given my conclusion the purported will can be declared a valid will under s 14 Wills Act 2007, strictly speaking, there is no need to make a separate order revoking the 16 May 2005 will as, pursuant to s 16(a) of the Wills Act, the making of a later valid will revokes an earlier will. However, I do so as I am satisfied the earlier will was revoked before the purported will was made. Accordingly, I order:
(a)the purported revocation of 15 July 2015 is declared valid pursuant to s 16 of the Wills Act 2007; and
(b)the purported will of 14 June 2016 is declared valid pursuant to s 14 of the Act, and subject to the parties adhering to their agreement to the conditions of Kiana’s consent set out in Ms Taylor’s memorandum of 4 March 2021.
Solicitors:
Taylor Shaw, Christchurch
3 Melanie Cotter is Kiana’s mother.
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