Cox v Dobson

[2020] NZHC 2644

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000138

[2020] NZHC 2644

UNDER

section 14 of the Wills Act 2007

IN THE MATTER OF

an application for an order that a document be declared a valid will of the deceased DAYAL PATRICK PHILLIPS

BETWEEN

PHILLIP DOUGLAS COX and DAVID SIME COGGER

Applicants

AND

ROHAN DOBSON

First Interested Party

DANIEL JAMES PHILLIPS
Second Interested Party

REBECCA MARIE MARTINEZ

Third Interested Party

Hearing:

14 September 2020

Appearances:

C Simes for the Applicants

J Stanton for the First Interested Party Mr Phillips in person

Ms Martinez in person

Judgment:

8 October 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue on 8 October 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Kiwilaw Mediation and Advocacy Ltd, Oxford Mortlock McCormack Law, Christchurch

ESTATE OF PHILLIP [2020] NZHC 2644 [8 October 2020]

Introduction

[1]                  This is an application under section 14 of the Wills Act 2007 (the Act) for an order  declaring  an  unsigned  electronic   document   as   the   valid   will   of   Dayal Patrick Phillips  (Dayal),  who  died  in  a   motorcycle   accident   at   Ruapuna Raceway, Christchurch on 23 October 2019.

[2]                  Dayal validly executed a will on 21 September 2010 (the prior will). At that time, he was married to Suzan Lisa McCall (Suzan). Dayal and Suzan’s marriage was dissolved in 2014.

[3]                  An unsigned electronic document (the purported will) was created and saved by Dayal on his computer on or about 31 August 2018. The purported will was not validly executed. At that time, he  had  been  in  a  de  facto  relationship  with  Rohan Dobson (Rohan) for approximately three years. The couple had been engaged to be married for two years at the time of Dayal’s death.

[4]                  Dayal has two adult children from an earlier relationship, Rebecca Marie Martinez (Rebecca) and Daniel James Phillips (Daniel).

[5]                  The application to validate the purported will is made by Phillip Douglas Cox (Phillip) and David Sime Cogger (David). Phillip and David are the executors of the prior will and are also named as executors in the purported will.

[6]                  Rohan supports the validation of the purported will. At the hearing before me, Rebecca also supported validation of the purported will. Since the hearing, Rebecca attempted to file a further affidavit updating the Court on her position; I directed that affidavit should be rejected for filing, as it was not accompanied by any relevant application, and it was out of time. Daniel neither supported nor objected to the validation of the purported will, but wanted to provide the court with additional information for the purposes of its deliberations. He was particularly concerned that the executors had rushed in identifying the purported will as Dayal’s last will, and had not undertaken a thorough enough search of Dayal’s computer to identify the correct document for testamentary purposes.

[7]                  There is no issue in this case as to whether or not Dayal had testamentary capacity at the time he created the purported will. What is contention in is whether the Court can be satisfied that the document expresses Dayal’s testamentary intentions as required by s 14(2) of the Act.

Background

[8]                  Throughout his adult life, Dayal had multiple domestic relationships. He had three marriages that were dissolved, as well as numerous live-in partners and female acquaintances.

[9]                  Dayal and Daniel had a turbulent relationship, and they became estranged in 2009. Daniel painted a very dark picture of Dayal, accusing him of being physically abusive, a narcissist, a compulsive liar, financially usurious, and a serial womaniser.

[10]              Both Phillip and David have known Dayal for over thirty years. David took it upon himself to check with Dayal every time he entered into a new relationship that Dayal had updated his will. Routinely, Dayal would make the necessary arrangements to make provision in his will for his partner of the time.

The prior will

[11]              The prior will, executed in 2010, names Phillip and David as executors. It makes sundry gifts to Rebecca, Daniel and Suzan.

[12]The relevant clauses are:

2.Executor and Trustee:

2.1.    I appoint my friends PHILLIP DOUGLAS COX of … Wellington, General Manager and DAVID COGGER police officer and lawyer of … Nelson, the executors and trustees of this my Will (“my trustees”), but if one of them is unwilling or incapable to act I appoint ROGER CANN of Auckland, Solicitor at Wilson MacKay, Remuera, Auckland in that person’s place.

2.2.    My trustees are charged with organising my funeral arrangements, and arrangements for my wake in accordance with my wishes as set out in the most recent version of the funeral arrangements document held on my Laptop personal computer. The various access passwords will be advised to my solicitors from time to time.

2.2.1.The windows desktop has a FilesPersonal folder, within which there is a sub-directory of Dayal, and within that a sub-directory of LastWill Etc.

2.2.2.My will and funeral wishes are the most recently dated files with the names of

2.2.2.1.YYYYMMDD PhillipsDayal LastWillVx.doc

2.2.2.2and   YYYYMMDD   DayalFuneral   Wishes Etc.doc

3.Gifts:

…

3.11.      The proceeds of my life insurance policies held with Asteron Insurance are to be distributed as follows:

3.12.      Asteron SmartLife Policy 30033547 of approx $1,034,000 value is to be applied:

…

4.Residue:

4.1.    I direct that:

4.1.1.My trustees pay my debts and funeral expenses, my trustees’ administration expenses, any reasonable expense and costs incurred in the performance of my wishes; and any death duty payable on my estate.

4.1.2.The remainder of my estate in it’s entirety, all goods, chattels, property, shares, or assets in any form whatsoever, is to become the exclusive property of SUZAN LISA MCCALL, if she shall survive me for a period of 30 days; and if not, then for my son DANIEL JAMES PHILLIPS and my daughter REBECCA MARIE MARTINEZ as tenants in common, in equal shares.

4.1.3.This is my absolute wish and my absolute desire.

4.1.4.Should the provisions of this my last will and testament be challenged by either my son DANIEL JAMES PHILLIPS or by my daughter REBECCA MARIE MARTINEZ (nee Drane) then any gifts made to them in this my last will and testament will be considered to be null and void and will not be made.

…

[13]              The prior will had a backing sheet in the name of Roger Cann, solicitor (Roger). It had the document file name “20100729 PhillipsDayal Last Will V8.doc”. It was held by Roger.

Change in relationship

[14]              Dayal and Suzan’s marriage was dissolved on 30 September 2014. By then, Dayal had formed a relationship with Rohan. Rohan owned a property in her own right at Dover Street in Christchurch. After time in Auckland together, they began living together at the Dover Street home. In February 2019, Rohan transferred a half share of Dover Street to Dayal, so that they could raise finance to purchase another property.

[15]              In May 2019, Dayal and Rohan jointly purchased another property  at  Francis Avenue. This property passed to Rohan by survivorship and is not part of Dayal’s estate.

Events immediately after Dayal’s death

[16]              After Dayal’s death on 23 October 2019, Phillip spoke with Roger, who held the prior will. As cl 2.2 of the prior will recorded that Dayal would provide passwords to his laptop to Roger, Phillip requested the most up to date password. Roger could find no record of Dayal having ever sent him any passwords.

[17]              Rohan and Phillip then searched Dayal’s office and were unable to identify any passwords that were of any use. Rohan had no access to any of Dayal’s electronic devices.

[18]              Phillip consulted with David, and they agreed that the most practicable way to unlock Dayal’s computer was to go to the funeral home and use Dayal’s fingerprint on the biometric scanner to unlock the computer. On 26 October 2019, Phillip opened Dayal’s computer in the presence of a worker at the funeral home. Phillip found and copied the file referred to as the purported will. The computer then remained in his exclusive custody.

[19]              The purported will has stayed in the exact state it was in since Phillip retrieved it. It contains tracked changes visible at 3.4 , 4.1.4 and 4.2. To ensure the purported will remained intact, all settings and the tracked changes were left intact in the printed

paper  version  of the document.   It is accepted by all parties that it has not been modified since its retrieval.

The purported will

[20]              There are reasonable grounds to conclude that the purported will was created and saved by Dayal on his own computer on or about 31 August 2018. The draft was saved under the file name “20180831 PhillipsDayal Last Codicil or Will.doc”. The file was last opened in September 2018.

[21]              Phillip and David are the named executors in the purported will, and Roger is named to stand in their shoes if one or other of them is unwilling or unable to act. The purported will also records a variety of gifts.

[22]The relevant clauses of this will are set out below:

2.Executor and Trustee

2.1.    I appoint my friends PHILLIP DOUGLAS COX … and DAVID COGGER … the executors and trustees of this my Will (“my trustees”), but if one of them is unwilling or incapable to act I appoint ROGER CANN of Auckland, Solicitor at Wilson MacKay, Remuera, Auckland in that person’s place.

2.2.    My trustees are charged with organising my funeral arrangements, and arrangements for my wake in accordance with my wishes as set out in the most recent version of the funeral arrangements document held on my Laptop personal computer. The various access passwords will e advised to my solicitors from time to time.

2.2.1.The windows desktop has a FilesPersonal folder, within which there is a sub-directory of Dayal, and within that a sub-directoryy of LastWill Etc.

2.2.2.My will and funeral wishes are the most recently dated files with the names of

2.2.2.1.YYYMMDD PhillipsDayal LastWillVx.doc

2.2.2.2and YYYYMMDD DayalFuneral Wishes Etc.doc

3.Gifts:

…

3.4. I give my restricted firearms; being a Baikal IZH-35M semi-auto competition pistol .22 calibre, a Tanfoglio Gold Custom Extreme semi-auto match pistol .38 super calibre and a Smith and Wesson semi-auto match pistol .38 special calibre to my friend DAVID COGGER of Nelson.

…

3.19.     I give all shares which I may own at my death in any companies which may be owned individually by me; or jointly by me with other parties, inclusive of all assets which those companies may own and inclusive of the full benefit of any dividends thereon which shall not actually have ben received by me during my lifetime, to my partner ROHAN DOBSON of Christchurch, absolutely.

3.20.     My share in the property located at 86 Dover Street Christchurch, I give to my partner ROHAN DOBSON of Christchurch.

3.21.     The proceeds of my life insurance policies held with Asteron Insurance are to be distributed as follows:

3.22.     Asteron Smart Life Policy 30033547 of approx $1,034,000 value is to be applied:

3.22.1to the repayment of any debt which may be outstanding in the name of myself at the time of my death.

4.Residue:

4.1.    I direct that:

4.1.1.My trustees pay my debts and funeral expenses, my trustees’ administration expenses, any reasonable expense and costs incurred in the performance of my wishes; any death duty payable on my estate.

4.1.2.The remainder of my estate in it’s entirety, all goods, chattels, property, shares, or assets in any form whatsoever, is to become the exclusive property of for my son DANIEL JAMES PHILLIPS and my daughter REBECCA MARIE MARTINEZ as tenants in common, in equal shares.

4.1.3.Should either my daughter or son be unable to reach agreement upon any items left or gifted to them individually or in common; then a final and binding decision on the disposition of my goods, chattels and assets, will be made by my executors and trustees, at their absolute discretion.

4.1.4.Should the provisions of this my last will and testament be challenged by either my son DANIEL JAMES PHILLIPS or by my daughter REBECCA MARIE MARTINEZ (nee Drane) then any gifts made to them in this my last will and

testament will be considered to be null and void and will not be made. Any such gifts or bequests shall immediately become the exclusive property of my grandson PAUL ANTHONY MARTINEZ, to be held in trust, by my trustees until he shall attain the age of twenty one.

4.1.5.This is my absolute wish and my absolute desire.

4.2.    In the event of any of the beneficiaries of this my will having pre-deceased me, then that gift or bequest, shall in it’s entirety become the exclusive property of my grandson PAUL ANTHONY MARTINEZ, to be held in trust, by my trustees until he shall attain he age of twenty one.

…

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.

(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.

[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.1 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:

1      Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].

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.

(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

(c)a document that revokes a will as defined in subsection (1); or

(d)a document that revives a will as defined in subsection (1); or

(e)a codicil to a will as defined in subsection (1).

(4)A person who may dispose of property during his or her life by a document creating a valid power or trust may dispose of property by his or her will by creating a power or trust of the same kind.

(5)In this section, property—

(a)includes—

(i)a contingent, executory, or future interest in property; and

(ii)a right of entry to property; and

(iii)a right of recovery of property; and

(iv)a right to call for the transfer of title to property; and

(b)does not include property of which a person is a trustee when he or she dies.

(6)Section 108 of Te Ture Whenua Maori Act 1993 overrides this section.

[26]              Section 6 of the Act defines a “document” as “any material on which there is writing”. A “document” includes an email,2 and any electronically stored document visible on a screen.3

2      Re Estate of Pinker [2015] NZHC 660.

3      Blackwell v Hollings [2014] NZHC 667.

[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 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.4

[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. 5

[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.6 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.7

[30]In Caird v Caird, Mander J said:8

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.⁹ 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.¹⁰ 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 that question may be taken into account.¹²

[31]              The burden of proof rests with the applicants in the present case, and they must discharge it on the balance of probabilities.

4      Re Estate of Feron [2012] 2 NZLR 551 (HC).

5      Caird v Caird [2018] NZHC 1605 at [34].

6      Re Estate of Wong [2014] NZHC 2554 at [24].

7      Re Estate of Campbell, above n 1, at [18].

8      Caird v Caird, above n 5, at [40].

9      Re Estate of Campbell, above n 1, at [18].

10     At [16]; Re Estate of Wong, above n 6, at [24].

11     Re Estate of Campbell, above n 1, at [16].

12     At [15] and [17].

Analysis

[32]              The purported will does not comply with the requirements of execution and attestation in s 11 of the Act, and it came into existence in New Zealand. The purported will is a document, and I now turn to consider whether it appears to be a valid will expressing Dayal’s testamentary intentions.

Executors’ selection of the purported will

[33]              The prior will was executed at Dayal’s lawyer’s offices. His solicitor at that time was Roger. David gave evidence that after Dayal’s separation from Suzan, Dayal changed lawyers and instructed Wrigley and Co. David contacted them after Dayal’s death, and they advised him they were not holding a will for Dayal.

[34]              Their next port of call was clause 2.2.2 of the prior will, which specified that Dayal’s last will and funeral wishes “are the most recently dated files with the names of “YYYYMMDD PhillipsDayal LastWillVx.doc” and “YYYYMMDD DayalFuneral Wishes Etc.doc”.

[35]              That led to Phillip accessing the computer and selecting the purported will. He said there were a number of files with similar naming conventions to the one he ultimately chose to present to the Court as the purported will. He said in evidence:

I did not pay any attention to them however … as they were dated older than this file which was the latest dated file based on the file date timestamps that were found in that directory and the file naming convention also indicate this was the latest file of interest. So yeah I really didn't pay that much attention to the other documents at all. Essentially I was trying to get in, get the Will and get out without doing any further work on the computer so it could be preserved in a pristine state in case it was needed for evidence in any way.

[36]              He conceded that he had not scanned for a file bearing the exact naming convention provided for by clause 2.2.2, but rejected the notion that such a file might exist. He said:

… that does not mean that the intent is specifically as per each letter in the file name, I believe the file map was clearly articulating that it was a Will, it was dated at that particular date and it was very close to the named file structure that had been presented nearly 10 years ago in a prior dated Will.

[37]              Finally, he conceded that he did not have the computer forensically examined to ascertain when and where the computer had been accessed, or if the date on the document had been modified, and if so by whom.

The purported will’s unusual features

[38]              There are a number of unusual features to the purported will. First and foremost, it contains tracked changes that have not been accepted by the author. These include the name of the will. They also include a number of minor bequests. The fact that the tracked changes have not been accepted suggests the purported will remained in draft.

[39]              Second, the purported will contains a number of confusing bequests, which all suggest that Dayal had not fully updated the document and it was a work in progress:

(a)Clause 3.3 constitutes a bequest of firearms to Dayal’s son-in-law, a Mr Martinez. This appears to be very unusual, as Dayal’s daughter Rebecca had obtained a protection order against Mr Martinez in mid-2018.

(b)Clause 3.18 constitutes a bequest of a horse, Gilby, to a friend. The horse had been long dead by the time Dayal drafted the purported will.

(c)At cl 3.20, Dayal bequeaths his half-share in the Dover Street property to Rohan. At the time he drafted the purported will, he did not have a share in the property. It was suggested that he held an equitable share at that time, but no evidence was adduced to that effect. There are other explanations for this bequest, for instance that the document had been modified after its creation to insert that clause. However, because the computer has not been forensically assessed, it is impossible to know.

(d)In clause 3.21, Dayal deals with a life insurance policy which he specified was worth over $1,000,000. That insurance policy no longer existed, and had not for some time.

[40]              Finally, I note Daniel’s concerns about the validity of the purported will, although I do not find these to be very persuasive. Daniel gave evidence that Dayal had told him that any will of his was “irrelevant until it’s signed and in Roger’s safe”. Daniel also had serious concerns about the fact that the electronic file name of the purported will does not follow the naming convention recorded in the prior will. However, the name of the purported will is very similar to the naming convention, and I do not find this factor to be determinative.

Conclusion

[41]              Whilst I do not share Daniel’s concerns about the departure from the naming convention settled in the prior will, I am nonetheless concerned about the manner in which the purported will was loosely selected by Phillip, the fact that Dayal’s computer and the history of the document were not forensically assessed, and finally that the document has all the hallmarks of a work in progress.

[42]              Whilst I acknowledge it is likely that Dayal, based on his past behaviour in relationships, would have wanted to leave his estate to Rohan, that is not in and of itself sufficient to overcome these identified obstacles with the purported will. I cannot be satisfied that the purported will expresses Dayal’s testamentary intentions.

Result

[43]I decline the application to declare the electronic document a valid will.

Doogue J