Estate of Barker

[2018] NZHC 2955

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2018-463-90

[2018] NZHC 2955

IN THE MATTER OF

Section 14 of the Wills Act 2007

IN THE MATTER OF

The estate of CLIVE ROBERT NEWTON BARKER

IN THE MATTER OF

An application by MICHAEL CLIVE BARKER for an order that documents be declared to be the valid will of CLIVE ROBERT NEWTON BARKER Deceased

BETWEEN

MICHAEL CLIVE BARKER as executor of the will of CLIVE ROBERT NEWTON BARKER Deceased

Plaintiff

Hearing:	On the papers
Counsel:	I Harvey for the Plaintiff
Judgment:	15 November 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Thursday 15 November 2018 at 10.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Solicitors:
Lance Lawson, Rotorua

Re Estate of Barker [2018] NZHC 2955 [15 November 2018]

Introduction

[1]    The plaintiff, as executor and trustee of his late father Clive Robert Newton Barker, seeks orders under s 14 of the Wills Act 2007 (the Act) declaring the following to be the valid will of the deceased:

(a)The deceased’s will dated 17 July 2004 and the amendments made thereon (together the Amended 2004 Will); and

(b)The two envelopes dated 24 August 2008 located with the will (the August 2008 Envelopes).

[2]    He does so with the written consent of all beneficiaries under the 2004 Will as originally executed and subsequently amended.

[3]I am satisfied that orders under s 14 of the Act are appropriate.

Background

[4]    In 2004 the deceased prepared a will on Pacific Legal Form L28. He appears to have done so without legal assistance. He took the will with him to his friends,  Ms Judi Kerr and Mr Ivan Borrst, who witnessed the document.

[5]    Subsequently (on various apparent dates) the deceased made amendments to and on the 2004 Will. Those amendments were not witnessed by Ms Kerr and Mr Borrst (or anyone else).

[6]    Furthermore on 2 August 2008 the deceased identified various wishes in respect of his estate on two envelopes which were not witnessed in accordance with the Act. These were located with the Amended 2004 Will in what the plaintiff refers to as “the Will Packet”.

[7]The deceased had nine children including the applicant.

[8]    In simple terms the differences between the original will and the Amended 2004 Will are as follows:

2004 Will	Amended 2004 Will
Executors: The Deceased’s children Rodney Taylor Barker and Pamela Shirley Barker.	Executor: The Deceased’s son Michael Clive Barker.
The Deceased’s estate: To be shared between the Executors’ brothers and sisters living at the Deceased’s death.	The Deceased’s Estate: Subject to the provisions below, to be shared equally between the Executor’s brothers and sisters living at the Deceased’s death.
Rodney Taylor Barker’s share to be reduced by $32,500 as the Deceased had given him a Subaru car and jet ski jointly valued at $32,500.
Pamela Shirley Barker’s share to be reduced by $3,670 as the Deceased had given her a van valued at $3,670.

[9]Likewise, in simple terms, the two August 2008 Envelopes reflect:

(a)The deceased’s desire that the executor of his estate be paid for his/her time administering the estate at a rate of $30 per hour increasing modestly over subsequent years as required.

(b)The deceased’s intention that:

(i)his properties, cars, boats and various other chattels and personal effects were to be given to those of his children that wanted them and that the value of those items should be deducted from the recipient child’s share of the estate;

(ii)if more than one of the deceased children wanted a particular item that a ballot be held to decide who received it; and

(iii)any items not wanted by the deceased’s children were to be sold.

The deceased’s estate

[10]The deceased’s estate included:

(a)a house at 21 Tui Road, Western Heights, Rotorua;

(b)five vehicles;

(c)a boat;

(d)a motorbike; and

(e)about $1 million in investments.

The jurisdiction

[11]   Section 11 of the Act sets out the requirements for a valid will including that it be signed and witnessed. Two witnesses are required, who must be in the will-maker’s presence either when he or she signs the document or when he or she acknowledges having signed the document earlier. Each such witness must confirm the requirements set out in s 11(5) of the Act, although no particular form of words is required.

[12]Section 14 of the Act is in familiar terms. It provides:

(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.

[13]   The cases1 establish four possible explanations for why an intending will- maker may not have signed and had witnessed the document for which validation is sought under s 14 being:

(a)They change their mind. If this possibility applies the Court will not exercise its discretion under the Act to declare the will to be valid.

(b)They overlooked or forgot to sign the will. If this possibility applies the Court may (depending on the circumstances) exercise its discretion under the Act to declare the will to be valid.

(c)They did not think they needed to do anything more. They thought they had made an effective will and mistakenly believed that everything necessary to create a will had been done. If this possibility applies the Court may (depending on the circumstances) exercise its discretion under the Act to declare the will to be valid.

(d)They intended to sign the will but never got around to it. Again if this possibility applies the Court may exercise its discretion to declare the will to be valid.

Discussion

[14]   Having reviewed the affidavits of the plaintiff, Ms Kerr and Mr Borrst I consider the jurisdiction under s 14 of the Act is made out.

[15]   In respect of the Amended 2004 Will it is clear on the face of it that it appears to be a will and that it evidences the deceased’s testamentary intentions. It is likely in my view that the document falls within what is referred to as possibility (c) above in that the deceased considered, having had the original will witnessed by his friends, he

1      For example, In Estate of Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009 per McKenzie J; Gladwin v Public Trust [2011] 3 NZLR 566 per Woolford J; Re Fraser HC Napier CIV-2011-441-700, 20 December 2011 per MacKenzie J.

was free to make amendments thereafter. The plaintiff confirms the amendments are in his late father’s usual handwriting.

[16]   In respect of the envelopes, I accept that part of what is written constitutes mechanical instructions, not typically found in a will and which of themselves are unlikely to be described as “appear[ing] to be a will” within the terms of s 14(1)(a). However, other parts, and in particular those earlier identified in this judgment relating to remuneration of the executor and disposition of the deceased’s properties, comprise matters appropriately found in a valid will and I accept them as validly expressing testamentary intention. In my view the envelopes are best considered within the context of either possibilities (c) or (d) identified above. Again there is no issue that the handwriting on the envelopes is that of the deceased. Although in my view some parts are otiose for testamentary purposes I accept counsel’s submission that the appropriate course is to validate them in their entirety under the Act.

[17]All other relevant jurisdictional requirements are likewise satisfied.

[18]   I am fortified in the conclusions reached in this judgment by the fact that there is unanimous consent by all beneficiaries. I compliment the family on the practical and sensible approach it has adopted with respect to these issues.

Result

[19]   I declare pursuant to s 14 of the Wills Act 2007 the following documents to be the deceased’s valid will namely:

(a)The Amended 2004 Will and

(b)The 2008 Envelopes.

[20]   The definitions of all such documents are those adopted in counsel’s memorandum dated 28 August 2018.

Costs

[21]   No issue as to costs arises in the proceedings. For the avoidance of doubt I direct, however, that the costs of the application be met by the Estate.

Muir J