Estate of Carr

[2019] NZHC 2647

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2018-419-0237

[2019] NZHC 2647

UNDER

Part 19 of the High Court Rules and the Wills Act 2007

IN THE MATTER

of an application to validate a will

BETWEEN

DONNA HINEANEWA OLIVER

Applicant

Hearing:	On the papers
Appearances:	R D Clark for the applicant
Judgment:	17 October 2019

JUDGMENT OF JAGOSE J

The judgment was delivered by me on 17 October 2019 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Counsel:

Roger Clark Barrister, Hamilton

Re Estate Carr [2019] NZHC 2647 [17 October 2019]

[1]Barry Benjamin Carr died at home in Otorohanga on 9 September 2016.

[2]        Among Mr Carr’s personal effects later was found a handwritten document, seemingly drafted in pencil, commencing with the introductory text:

THis is The Last wiLL and testament of Barry Benjamin Carr

mine me

of 1208 Otewa Road, Otorohanga. I appoint my daughter Donna Hineanawa as executrix and trustee of this wiLL

The striking out of his daughter’s name appears to be in blue pen.

[3]        The following five numbered paragraphs  each  identify a specific item  of  Mr Carr’s property – being interests in land, and photographs and a portrait of his mother – to be given individually to his son, three of four daughters, and a grandson (being the son of the fourth daughter). In paragraph 3, relating to a gift to her, the words “daughter Donna Hineanewa Oliver” similarly are struck out in blue pen.

[4]        By this originating application, that daughter seeks validation of the document as her father’s will. Mr Carr’s widow and children, except one daughter, each consent to the application. All (including the non-consenting daughter and the grandson) have been served with the proceeding; none has taken any steps in opposition.

Validation of wills

[5]Section 14 of the Wills Act 2007 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.

[6]         Section 14 applies to the document, because it (a) is a document; (b) appears to be a will, in that it is made by a natural person and seeks to dispose of property to which the person is entitled when he dies;1 and (c) does not comply with s 11 (which relevantly requires the document to be signed and witnessed).

[7]        I may declare the document Mr Carr’s valid will if I am satisfied the document expresses his testamentary intentions. The discretion conferred by s 14 is residual only: good reason would be required to refuse an order if so satisfied.2 I am essentially to “evaluate the relevant circumstances and reach a conclusion”.3 I am to take “a robust approach”.4 In Re Campbell (deceased), MacKenzie J observed:5

The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will, or on an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which would otherwise occur to take place. The preponderance of successful applications suggests that this Court recognises it as appropriate to give effect to the contents of the document in preference to the disposition, which the deceased person has, by the document, shown a wish should not apply.

Does the document express Mr Carr’s testamentary intentions?

[8]        Given the close, personal and private nature of the interests engaged on this application, I set out only the facts necessary to understand this judgment.

[9]        The evidence establishes the document is written in Mr Carr’s handwriting. It was held with other of his important personal and business documents. His widow

1      Wills Act 2007, s 8(1).

2      Balchin v Hall [2016] NZHC 837 at [11].

3      Re Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].

4      Watt v Owston-Doyle [2015] NZHC 1292 at [12] citing Re Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].

5      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].

identified it to their son as his father’s will. No other document addresses Mr Carr’s testamentary intentions.

[10]      Each of the specified gifts is of property valued by Mr Carr, with rational grounds for being given on his death to its specified recipient, and reflects serious considerations expressed, or understood to be had, by Mr Carr during his lifetime as to both the importance of the property and the appropriateness of its recipient. The same is true of the document’s identification of the applicant as executor and trustee.

[11]      The evidence disputes striking out of the applicant’s name was Mr Carr’s work. In keeping with the precise and perfectionist nature attributed to him during his lifetime, deponents expect he would not have retained the document with such erasures, but would have rewritten it. That is consistent with his deliberate and careful specification of the gifts and their recipients in the document.

[12]      It is material (but not determinative) both Mr Carr’s widow knew of the existence and location of the document and, before being shown to their son, it was seen by the daughter who has not provided her consent to (but has not opposed) the present application. There was at least opportunity for someone other than Mr Carr to have applied the blue pen marks to the document after he wrote it.

[13]      However, on this application for validation of the document as Mr Carr’s will, I am not required conclusively to interpret the document. All I am required to do is to be satisfied the document expresses Mr Carr’s testamentary intentions,6 for disposition of his property.7 For the reasons I set out at [9] and [10], I am so satisfied. So far as the blue pen marks are concerned, even if they are to be attributed to Mr Carr, they do not undermine the document’s expression of his testamentary intention, then as indeterminate as to the identity of his executor and trustee and of the recipient of his gift at its paragraph 3.8

6      Wills Act 2007, s 14(2)

7      Section 8(1)(b)(i).

8      A will-maker’s professed intention to change one of a draft will’s dispositions was insufficient to preclude s 14’s application to the document as a whole: Public Trust v Capper [2012] NZHC 2864 at [15], and see discussion in S Che Ekaratne, “Validation under s 14 of the Wills Act: past, present and future” (2017) 9 NZFLJ 23.

Result

[14]      I declare the original of the document marked “A” annexed to the affidavit of Donna Hineanewa Oliver sworn 24 July 2018 to be Mr Carr’s valid will.

—Jagose J