Estate of Ching

[2023] NZHC 1013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-617736

[2023] NZHC 1013

IN THE MATTER OF the Estate of HUNG CHING

Hearing:	24 April 2023 via telephone
Appearances:	K Sun and I Sugimoto as Caveator/Objector K L MacLean for the Estate
Judgment:	2 May 2023

JUDGMENT OF HARLAND J

Introduction

[1]    This judgment determines an application by Lan-Hsiang Hsiao that an Order Nisi dated 7 March 2023 be made absolute in circumstances where a caveat was lodged by Yun-Ping Yeh in respect of it.

[2]    The evidence was presented to the Court by affidavit. There was no application to cross-examine. Submissions were made by counsel.

[3]    I have decided the caveat cannot be sustained and therefore the Order Nisi should be made absolute. This judgment sets out my reasons for reaching that conclusion.

RE ESTATE OF HUNG CHING [2023] NZHC 1013 [2 May 2023]

Background

[4]    On 22 August 2022, the deceased Hung Ching died at Christchurch, leaving a will appointing his wife Lan-Hsiang Hsiao, the applicant, as executor and administrator of his estate.

[5]    The will was dated 24 February 2021 and left all of the deceased’s estate to the applicant. A prior will dated 8 December 2017, a copy of which was provided to me by counsel for the applicant at my request, also left the deceased’s entire estate to the applicant.

[6]    On 23 November 2022, Yun-Ping Yeh (caveator) lodged a caveat under s 60 of the Administration Act 1969.

[7]    On 7 March 2023, an Order Nisi was made in favour of the applicant granting her probate of the will of the deceased. The order also required the caveator to show cause as to why this order should not be made absolute.

[8]    On 18 April 2023, Yun Jing filed an affidavit opposing the Order Nisi being made absolute. A bundle of documents were filed on behalf of the caveator, as was a memorandum of counsel Mr Sun. A memorandum by counsel for the applicant was also filed on 18 April 2023.

[9]    The affidavit of Yun Jing outlines that the deceased was her father and that she was one of three daughters from his first marriage to her mother, the caveator. Yun Jing resides in Hong Kong but it is not clear where her two sisters currently reside. All are adults.

[10]   Yun Jing’s affidavit also outlines that the deceased and the caveator were married in 1968 in Taiwan and were divorced there in 1985.

[11]The applicant is the deceased’s second wife.

[12]   Yun Jing’s affidavit further outlines the grounds for supporting the caveator, which are:

(a)        there are concerns about the deceased’s testamentary capacity at the time he made his last will;

(b)       the deceased and the caveator did not divide their relationship property equally when they separated and the caveator intends to apply to the Family Court under the Property (Relationships) Act 1976 (PRA) to extend the time limit for making an application to divide the deceased’s and the caveator’s relationship property; and

(c)        the three adult children from the deceased’s first marriage intend to commence proceedings in the Family Court under the Family Protection Act 1955 (FPA). The FPA is not referred to directly in the affidavit, but I am able to infer this is the intention given counsel’s submissions at the telephone hearing.

[13]   The deceased is the registered proprietor of three properties in Christchurch, two of which are held jointly with the applicant and one which is registered in his sole name. On behalf of the caveator, it is submitted that these properties were purchased by the deceased using his and the caveator’s relationship property transferred from Taiwan to New Zealand.

[14]   As well, Yun Jing deposes that the caveator was the victim of severe domestic violence during her marriage to the deceased and therefore acquiesced to his request that he retain all the assets accumulated during their marriage in Taiwan. The affidavit also outlines that the deceased did not pay any child support or maintenance to the caveator but promised the caveator, many years prior to his death, that she and her sisters would receive (I infer inherit) the properties.

[15]   No formal applications have been filed in the Family Court either under the PRA or FPA, neither have proceedings been issued challenging the deceased’s testamentary capacity. Mr Sun submitted that, in respect of the latter issue, discovery would be required first. The affidavit of Yun Jing however did attach, as exhibit B, various reports from the Canterbury District Health Board outlining that the deceased had been diagnosed with moderate vascular dementia (a matter referred to in a medical

report dated 13 December 2021) in which it was noted that this diagnosis had occurred “in the past”.

[16]   The deceased’s death certificate was exhibited as well,1 recording the cause of death as renal failure and anaemia secondary to a gastrointestinal bleed.

[17]   Mr Sun submitted that, as vascular dementia is a progressive condition, it could be inferred that the deceased would have exhibited symptoms of it and was not of sound mind when he executed his will on 24 February 2021.

Discussion

[18]Section 61 of the Administration Act 1969 applies.

[19]   The children of the deceased from his first marriage to the caveator have not, themselves, filed a notice of caveat. Neither have they filed proceedings under the FPA, if they in fact have jurisdiction to do so.

[20]   The caveator has not filed proceedings in the Family Court under the PRA, a matter which is surprising given that the parties separated in 1985 in Taiwan. No evidence has been filed about the nature of the property as it existed in Taiwan to link it to the three properties in New Zealand.

[21]   The onus is on the caveator to show good cause why the Order Nisi should not be made absolute. She is required to provide affidavit evidence that discloses sufficient information to show that a full enquiry should be made prior to the grant of a final order.2

[22]   I am not satisfied that the affidavit filed on behalf of the caveator establishes to any significant degree that the deceased was suffering from dementia in February 2021 when he executed the will. Furthermore, the prior will, although not entirely a mirror will as Ms MacLean submitted, leaves the deceased’s residuary estate and a specific gift of cash to Lan-Hsiang Hsiao.

1      Exhibit C.

2      In Re Nissenbaum (deceased) [1939] NZLR 94.

[23]   But, in any event, any claim under the PRA or FPA will be able to be made if the Order Nisi is made absolute. This is because, as Ms MacLean properly noted, the estate is now on notice that claims are likely and therefore distribution of the estate cannot occur for a 12 month period to enable such proceedings to be filed.

[24]   It is therefore not necessary for me to consider in detail the submissions made on behalf of the applicant about the merits of the potential PRA claim.

[25]   As to a potential claim under the FPA, I agree with Ms MacLean that the caveator has no ability to bring a claim under the FPA as a former wife of the deceased. Given the absence of a notice of caveat by the adult daughters, this is a matter I also can take no further.

[26]   I am satisfied that the Order Nisi should be made absolute. I am not satisfied that the caveat can be sustained.

Result

[27]The Order Nisi granted on 7 March 2023 is made absolute.

Harland J

Solicitors:

D’Arcy Thomson Law Ltd, Christchurch.