Estate of Bowness

[2015] NZHC 339

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-1214 [2015] NZHC 339

IN THE ESTATE OF

Stephen Douglas Bowness

BETWEEN

LESLIE GRAHAM BOWNESS AND FREDERICK JOHN BOWNESS Plaintiffs

AND

JUANITA SHARVAUGHN RAHAPATA MORRELL BOWNESS

First Defendant

SHAMROCK TIPENE MORGAN BOWNESS

Second Defendant

NAVARA AROHA BOWNESS POI by her litigation guardian GINA-LEE BETHUNE

Fourth Defendant

Hearing:	26 February 2015
Appearances:	D M Woodbridge for plaintiffs
Judgment:	3 March 2015

JUDGMENT OF CLIFFORD J

[1]      The deceased, Stephen Douglas Bowness, died on or about 17 January 2014 leaving a will dated 8 December 2003.

[2]      At the outset of the proceedings, Gina-Lee Bethune was, with her consent, appointed  as  litigation  guardian  for  Navara  Bowness  Poi,  the  fourth  defendant.

Gina-Lee Bethune is Navara’s mother.

RE ESTATE OF S D BOWNESS [2015] NZHC 339 [3 March 2015]

[3]      These  proceedings,  an  application  for  probate  in  common  form,  were originally filed in this Court on 3 February 2014.  This matter was first called before Dobson J on 16 December 2014.  At that point, the proceedings had not been served on each of the four defendants.  Service has now been effected, and in addition to evidence of service, Mr Woodbridge has provided consents to the application from each of the defendants.

[4]      Probate  has  not  yet  been  granted.    Registrar  Penney,  by  minute  dated

17 February 2014, advised that the original application would not be granted because the place of residence of one of the executors  differed from that shown in the application  and  affidavit.    It  subsequently came to  the attention  of the plaintiff executors that the term “children”, which appears in the deceased’s will where he disposes of family heirlooms and memorabilia, and then his residuary estate, would include his natural children, the first, third and fourth defendants, but would not include his step-daughter, the third defendant Nadia Fearn (then aged 23).

[5]      This is an interlocutory application, on notice, under ss 31 and 32 of the Wills Act 2007 for the correction of Mr Bowness’ will to include Nadia Fearn in the distribution of property to Mr Bowness’ “children”.

[6]      At the hearing of this matter and based on Mr Woodbridge’s submissions and my reading of the papers, I granted the order that was sought.  I said that I would subsequently provide my written reasons.  I now do so.

[7]      Section 31 of the Wills Act 2007 provides:

31       Correction

(1)      This section applies when the High Court is satisfied that a will does not carry out the will-maker's intentions because it—

(a)      contains a clerical error; or

(b)      does not give effect to the will-maker's instructions.

(2)      The Court may make an order correcting the will to carry out the will-maker's intentions.

[8]      Affidavit evidence in support of this application was originally provided by

Leslie Graham Bowness, an executor of the deceased’s will, and Kirsten Janice

Young,  the  files  and  deeds  custodian  at  Evans  Henderson  Woodbridge,  the deceased’s solicitors.   At Dobson J’s suggestion on 14 November 2014, a further affidavit has been provided by John Wright, a solicitor now of Christchurch but who, in 2003, was working for Evans Henderson Woodbridge and acted for the deceased on a number of matters.

[9]      As  explained  by  Mr  Bowness  in  his  affidavit,  he  and  his  co-executor Frederick Bowness are brothers of the deceased.  During his lifetime, the deceased was married to Katarina Bowness, from whom he separated in or about March 2003. The deceased had two children by Katarina, each of whom survived him and are now still alive:

(a)       Shamrock Bowness, a son, born February 1986; and

(b)      Juanita Bowness, a daughter, born 1 August 1992.

[10]     After separation from Katarina Bowness, the deceased formed a relationship with Gina-Lee Bethune, with whom he had one further child who is still alive, a daughter, Navara Bowness Poi in 2011.

[11]     Mr Bowness deposed that the deceased had two step-children, being the children of Katarina, namely Nadia Fearn, born 26 April 1990 and Cody Morrell, born 4 May 1991.

[12]     Mr Bowness further deposed that, in his words, he was aware that “during the deceased’s life the deceased spoke and acted as if Nadia was his own child”.  There is no suggestion the deceased acted in that way as regards Cody Morrell.

[13]     Mr Bowness also commented on the documents attached to Ms Young’s

affidavit.  He noted:

(a)      That in a legal aid application from April  2003 the deceased had referred to there being three children living with him, a son aged seven, a daughter aged 10 and a daughter aged 13.  Nadia at that time was aged 13, Juanita 10 and Shamrock seven. An accompanying form

noted that children affected by the application were Nadia, Juanita and

Shamrock;

(b)That a handwritten file note appeared to record that the deceased had been the father of Nadia for 12 and a half years, she having been six months old when he took her in; and

(c)      That  a  note  that  appeared  to  be  a  record  of  the  deceased’s  will

instructions read:

Insurance policy - $150,000 – leave for three children:

1.   Nadia (step-daughter – treat like daughter);

2.   Juanita;

3.   Shamrock.

[14]     On that basis, Mr Bowness deposed that he concluded it was the deceased’s intention that Nadia be given an equal share in the proceeds of the deceased’s life insurance policy.  Mr Bowness further deposed that the sole asset of the deceased’s estate, apart from chattels, was a claim against a Sovereign Life Assurance policy with a value of $180,000.

[15]     In his affidavit Mr Wright confirms that, based on the documentation he has reviewed, he witnessed the deceased’s will.  He also says that, although he has no recollection of preparing that will, the various documents attached to Ms Young’s affidavit were prepared by, or refer to, him including the file notes commented on by Mr Bowness.  On that basis, Mr Wright deposes:

From a perusal of the abovementioned documents, I believe that the will did not conform to the instructions which I received from the deceased and which are recorded in the file note dated 30 July 2003.  The file note appears to indicate that the insurance policy be left to the children Nadia Sasha Fearn, Juanita Bowness and Shamrock Bowness.

[16]     In all these circumstances, I am satisfied that the deceased intended that the third defendant, Nadia Fearn, be treated in his will equally as his biological children Juanita Bowness, Shamrock Bowness and Navara Bowness Poi and, on that basis, make the orders sought correcting the deceased’s will to give effect to that intention.

[17]     There  are  therefore  orders  as  sought  in  the  interlocutory  application  of

1 August 2014.

“Clifford J”

Solicitors:

Evans Henderson Woodbridge, Marton for plaintiffs.