Estate of Clay

[2023] NZHC 1726

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-485-613894

CIV-2022-463-000113 [2023] NZHC 1726

UNDER

the Wills Act 2007

IN THE MATTER

AND

of the Estate of HILARY ANN CLAY (Deceased)

IN THE MATTER

of an application by ROSS DAVID GEBERT

Applicant

AND

HANNA ELIZABETH CLAY

Respondent

Hearing:

27 June 2023

Appearances:

J Kay for the Applicant

Ms H Clay, in person, with Mr Andrew Clay (McKenzie Friend)

Judgment:

5 July 2023

JUDGMENT OF BECROFT J

This judgment was delivered by me on 5 July 2023 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Eastbay Law Limited, Whakatane Copy to: H Clay

ESTATE OF HILARY ANN CLAY [2023] NZHC 1726 [5 July 2023]

The application

[1]    In July 2022 Hilary Ann Clay (Hilary) instructed her lawyers to prepare her will. She did so at a face-to-face meeting in her home. Hilary had subsequent discussions by telephone and email with her lawyers and confirmed further details. About a month later, when the will was presented for signing, Hilary wanted one further amendment. She confirmed the will in all other respects. Within two days, her lawyers finalised her will. Four days later, before the will could be signed, cancer overtook Hilary and she passed away much earlier than expected.

[2]    This is an application under s 14 of the Wills Act 2007 to declare that unsigned will as Hilary’s valid will.

[3]    The application is brought by Mr Ross Gebert (Ross), a close friend of Hilary (but not romantically involved with her) by way of on-notice originating application.

[4]    It is opposed, or at least not supported, by Ms Hanna Clay (Hanna), Hilary’s elder child. Hanna has separately applied to be granted Letters of Administration on the basis that her mother, Hilary, died intestate. That application awaits the outcome of this matter.

[5]    At the hearing, Hanna was assisted by her half-brother, Mr Andrew Clay, who acted responsibly as a McKenzie Friend.

Background

[6]    Hilary died on 16 August 2022, without leaving a valid will. She was a widow and was survived by two adult children – Hanna, the respondent, and Jason.

[7]Hilary apparently lived most of her life in Ōpōtiki.

[8]    Given the terms of the unsigned will, it is important to set out her long-term friendship with Ross.

[9]    Hilary met Ross in 1985 through her daughter Hanna. Ross and Hilary became close friends. It is clear from Ross’s affidavit that she provided him with significant ongoing support when he came out as being gay.

[10]   Hilary and Ross became very close and were mutually supportive even when Ross moved to Australia from 1986 to 1991. He and Hilary remained in close contact and visited each other.

[11]   In the 1990s Ross returned to Ōpōtiki and moved in with Hilary. In 1997 they purchased a house together at 53A Wellington Street, Ōpōtiki (the house) as tenants in common in equal shares.

[12]   In December 2004 Hilary bought out Ross’s half share in the house. Ross, his then-partner and Hilary continued to be close friends. For a short time Hilary lived in Perth. She then returned to Ōpōtiki to the house, which had been rented out during her absence. It had deteriorated substantially and was in very poor condition. Ross visited the house and agreed with Hilary that much remedial work was required.

[13]   Ross deposes that, at Hilary’s suggestion in 2010, he bought back a half share in the house again. His contribution was to take on half the existing mortgage ($81,000) and to clean up, redecorate and help rebuild much of the house.

[14]   After another stint in Australia, Hilary moved back to Ōpōtiki and back into the house. Ross stayed in Australia. Their friendship continued. Further financial arrangements were made in respect of the house and further improvements were carried out.

[15]   According to Ross, he and Hilary were best friends for 37 years. The relationship was loving, supporting, trusting and both expected to retire together in the house, which they jointly owned and had maintained together.

How the unsigned will came to be prepared

[16]   In mid-2022 Ross returned to Ōpōtiki to celebrate his 60th birthday with Hilary and family. Hilary was ill and awaiting blood tests and other results. Hilary and Ross talked about getting wills done to make their wishes clear.

[17]   They had general discussions. They agreed that if either died, the other would have the right to continue to live in the house. In all other respects, according to Ross’s affidavit, he said to Hilary it was her will and she should decide what she wanted to happen. He said he exerted no influence on her. There is no reason to reject that affidavit evidence. It is independently confirmed by Hilary’s lawyers, as discussed later.

[18]   According to Ross’s affidavit, Hilary preferred not to leave the house at 53A Wellington Street, nor the family home at St John Street occupied by her granddaughter Shanice Clay (Shanice), to her family. Instead she preferred to leave them money.

[19]   However, Ross deposes that Hilary’s last text to him was that she was thinking of gifting the family home to Shanice, her granddaughter, “as the right thing to do”.

The instructions given by Hilary to her lawyers

[20]   A Whakatāne solicitor, Ms Judith Wilson (the principal) and her employee, Ms Sarah Wilson (unrelated), provided affidavit evidence of their interactions with Hilary about her will. They were not required by Hanna to be present for cross-examination.

[21]   On 7 July 2022, the principal met with Hilary at her home and took her will instructions. Ms Wilson describes these instructions as clear, with the only matters requiring more consideration being whom Hilary would appoint as executor and the amount she would offer to sell her half-share in the house to Ross.

[22]   Before Ms Wilson left, she ran through her notes regarding her instructions to check with Hilary that Ms Wilson had correctly captured her wishes. Hilary confirmed that she had.

[23]   Ms Wilson took parallel but quite separate instructions from Ross at the same meeting. She deposes that Ross had little, if any, input into the discussion regarding the disposition of Hilary’s assets. Even when Hilary sought Ross’s input in relation to matters which directly affected him as the co-owner of the house, he deferred to her on the basis that it was her will and she would decide what should happen. The only exception was that they each agreed to give each other a life interest in the house – which Ms Wilson described as a logical and mutual step for co-owners of a property. It was something, in Ms Wilson’s view, they had clearly discussed before she arrived.

[24]   Ms Wilson had no concerns that Hilary lacked capacity to make a will nor that she was influenced in any way by Ross.

[25]She then delegated the drafting of the will to an employee, Sarah Wilson.

[26]   On 13 July 2022 Sarah Wilson emailed Hilary the draft will for her review. There were some details missing. Sarah Wilson had various communications with Hilary.

[27]   On 15 July 2022 Hilary sent Sarah a brief email setting out changes to the “will draft”. She advised of her occupation (retired), her executor (Brent Ranapia Day) and that her executor was to manage her funeral directions. She also added in her email:

Option for Ross to purchase 53A Wellington Street for the set amount of

$100,000.

Option for Chanice to purchase St John Street for the set amount of $50,000

…

[28]   Sarah Wilson followed up Hilary’s email. She required further information on Hilary’s executors. Sarah Wilson emailed again on 25 July 2022 and on 29 July 2022 telephoned Hilary to seek final details to finalise her will. At that time an appointment was arranged for Sarah Wilson and her principal, Judith Wilson, to meet with Hilary at her home on 9 August 2022 to sign her will.

[29]   On 9 August 2022 Judith Wilson and Sarah Wilson met with Hilary at 53A Wellington Street to sign her will. Shanice was also present. Apparently, Shanice was caring for Hilary at the time. Hilary advised that she had now decided to gift the

family home at St John Street to Shanice rather than leaving her the option in her will to purchase it for $50,000. There was discussion about this with advice that Shanice would need to see a lawyer from outside Ms Wilson’s office.

[30]   Sarah Wilson then read the will aloud to Hilary to make sure that, apart from the St John Street property clause, all other information was correct. Both Judith Wilson and Sarah Wilson depose that Hilary confirmed as such.

[31]   It was agreed that Judith and Sarah would return the following week with the final version of Hilary’s will for signature. That final version, completed on 11 August 2022, had the clause regarding the disposition of St John Street removed but otherwise it was exactly the will that was taken to Hilary’s home and read out to her.

[32]   Sarah Wilson “set the wheels in motion” for the transfer of the St John St property to Shanice and on 11 August 2022 (a Thursday), Sarah Wilson amended the will in accordance with Hilary’s instructions. The documentation to allow the gifting of the St John Street property was completed on 15 August 2022 (a Monday). The lawyers received the agreement and Deed of Gift signed by Shanice. On the same day, Ms Sarah Wilson received a call from Shanice advising that Hilary was in Whakatāne Hospital.

[33]On 16 August 2022 Sarah Wilson spoke to Shanice on the telephone around

8.30 am. Shanice advised that Hilary had been transferred to Tauranga Hospital overnight. Sarah Wilson deposes that they discussed Hilary’s condition in order to ascertain whether Hilary had capacity to sign her will. Shanice advised that she was unsure if Hilary had capacity due to her condition. Shanice promised to contact Sarah Wilson once Hilary’s condition improved. Some hours later Sarah Wilson received a call from Shanice advising that Hilary had passed away.

[34]   Shanice provided an unsworn statement, filed by her mother Hana. In it Shanice says that at the hospital she had approached her Nan to see if she wanted to sign her will and she said “no”. Not only is this not confirmed on oath, but Shanice was not at the hearing to give evidence. In any case, I think it much more likely that, in all the stress of her Nan’s serious condition, the recollection of Hilary’s lawyers is

to be preferred on the balance of probabilities. Also, I cannot exclude that Shanice’s loyalty to her mother has coloured her apparent recollection.

The law

[35]Section 14 of the Wills Act 2007 provides as follows:

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.

Three s (14)(1) considerations

[36]   Given that the draft will is self-evidently a “document”, there are three “pre- conditions” or “gateways” to the exercise of the Court’s validation power.

(1)The document appears to be a will. There could not be a clearer case than this of a document, here the draft will annexed as Exhibit “B” in Sarah Wilson’s affidavit, appearing to be a will. The document is headed up “Last Will and Testament of Hilary Ann Clay”. In both its form and content, it unambiguously, unmistakably, and unarguably appears to be a will. It follows the normal and standard form of wills up and down the country.

(2)The document does not comply with s 11. The absence of any signatures (and the explanation for that absence) self-evidently means that s 11 is not complied with.

(3)The document came into existence in or out of New Zealand. As MacKenzie J noted in Re Campbell (deceased), this third requirement

– that the document came into existence in or out of New Zealand – makes it clear that there is no territorial limitation on the application of s 14.1 It is obviously satisfied here.

[37]The three gateway provisions in s 14(1) are clearly satisfied in this case.

Does the document express Hilary Clay’s testamentary intentions?

[38]   Section 14 has been considered numerous times by the Courts and there are many similar statements as to the purpose of this section and the principles to be applied. There is no need in this to repeat them all out. However, I do refer to three particular observations:

[39]In Caird v Caird, Mander J emphasised that:2

[29] It is now well recognised that the Court is entitled to take a robust approach to the application of s 14.3 In making the assessment required by the section, the Court may consider both the document itself and evidence of statements made by the deceased person regarding their testamentary intentions.

[40]   In Re Campbell (deceased), MacKenzie J helpfully identified the following approach:

[15] The issue to be determined by the Court is whether the document expresses the deceased person’s testamentary intentions. That is to be determined by a consideration of all of the circumstances, including those set out in s 14(3). The matters listed in subs (3) are not exhaustive. The Court is not, by the terms of the subsection, restricted to those considerations. Any evidence which may assist to determine whether the document expresses the deceased person’s testamentary intentions may be taken into account. The evidence which may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant consideration. Evidence of the signing and witnessing of the document may, as in this case, include evidence as to why the document was not signed or witnessed at all.

1      Re Campbell (deceased) [2014] NZHC 1632 at [13].

2      Caird v Caird [2018] NZHC 1605.

3      Re Estate of Feron [2012] NZHC 44, [2012] NZLR 551 at [11], applying Re Estate of Murray HC Masterton CIV-2011-435-000178, 20 December 2011.

[41]   Finally, I note the description of the overall approach by Whata J in Re Estate of Feron:4

In Re Estate of Murray MacKenzie J helpfully essays a number of authorities dealing with section 14. Those authorities illustrate that a robust approach to the application of section 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person. Section 14 (2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not form. Furthermore, in reaching a conclusion I am also afforded a broad power to consider evidence on the deceased’s testamentary intentions and of statements made by the deceased person.

Discussion

[42]   Hanna is clearly distressed that her mother did not leave more of the Wellington Road property to her own family. She also believes that the option for Ross to buy out Hilary’s share of the house at $100,000 is a significant undervalue – though it is clear that Ross made a significant contribution to the house in terms of alterations and cleaning and, as part of the draft will, also takes on responsibility for Hilary’s mortgage. Hanna feels strongly that this just could not have been her mother’s intention.

[43]   Hanna also submits that in any case, there were four to five days available during which the draft will could have been presented by her lawyers again for Hilary to sign so as to finally confirm that was her intention. I observe that two of those days were a weekend. Hilary’s lawyers could not be accused of “sitting on their hands,” In my view they acted promptly and professionally. It is also Hanna’s view, that the draft will is fraudulently characterised as a will and the lawyers are wrong to say that the draft will represents Hilary’s final intentions. She says their view in this regard has tainted this whole process so that any conclusion that this is Hilary’s final will is “the fruit of the poisoned tree”.

4      Re Estate of Feron at [11] (footnotes omitted).

[44]   In Hanna’s view, her mother had no intentions of signing the document, and she couldn’t have meant to sign it, because it doesn’t fairly or appropriately provide for her heirs - particularly Hanna and her brother. This is probably the nub of Hanna’s concerns. On several occasions during the hearing she was in tears – she just could not accept that her mother would not provide for her more comprehensively. She clearly feels that it is unfair for Ross to obtain full title in the house for payment of only $100,000.

[45]   Other submissions from Hanna were that her mother refused to sign the document on three different occasions. This is simply not borne out by the evidence. On any analysis, Hilary only declined to sign the will on one occasion and only because she had decided to gift her St John Street property direct to Shanice and therefore wanted the will to be amended.

[46]   Humanly speaking, I can understand Hanna’s concerns. That said, in my clear view, the draft will expresses Hilary’s testamentary intentions. I am satisfied of this well and truly beyond the standard of the balance of probabilities. I point to the following which collectively, in my view, make this conclusion unarguable:

(1)On 7 July 2022 Hilary’s lawyer visited her and Hilary provided clear instructions regarding the disposition of her assets. These were recorded by Judith Wilson in her notes. Before she left, Ms Wilson ran through the notes to check with Hilary that she had correctly captured Hilary’s wishes. Hilary confirmed this to be the case.

(2)Another solicitor, Sarah Wilson, who drafted the will had several communications with Hilary and Hilary provided further clear detail as to her intentions.

(3)Crucially, Hilary sent an email to Sarah Wilson which included the words “Option for Ross to purchase 53A Wellington Street for the set amount of $100,000”.

(4)On 9 August 2022 Judith Wilson and Sarah Wilson visited Hilary. Hilary wanted an amendment to the will as she had decided to gift Shanice the St John Street property immediately. In all other respects, when the will was read aloud to Hilary, she confirmed that the will represented her intentions. In my view, Hilary’s change of intention at this visit regarding Shanice, together with her confirmed intention to give Ross the option to buy the property for $100,000, shows that she was clear and alert as to the issues.

(5)Hilary agreed to an appointment to sign the draft will, which, as it happened, was scheduled in the week she died.

[47]   My conclusion is reinforced by the comments of Cooke J in Mason v Mason5 that if the case involves the preparation of a draft will on instructions given to a solicitor, “it may be more likely to be found to capture the deceased’s intention”. In Mr Kay’s helpful submission, that inference can then be supported by other evidence such as the two sworn affidavits by the lawyers and Hilary’s July email to Sarah Wilson specifying her intentions about Ross and the Wellington Street property – which was confirmed a month later when the draft will was read out to her by her lawyers.

[48]   The cases are also clear that the Court should look at possible reasons why a will was not signed and to be alert to any change of mind. Here, I am quite satisfied, well beyond the balance of probabilities, that Hilary’s failure to sign the will was not caused by any change of mind but was solely the result of her rapid decline in health and unexpectedly early death.

[49]   In my view, the evidence about Hilary’s testamentary intentions is overwhelming. The conclusion is inevitable that the draft will reflects those intentions.

Conclusion

[50]I declare the draft, unsigned will of Hilary Ann Clay to be her valid will.

5      Mason v Mason [2022] NZHC 491, at [19] and [20].

[51]   There was discussion as to costs. Mr Kay originally sought costs either against Hanna Clay or Hilary’s estate. I do not think it appropriate that costs be awarded against Hanna Clay. In Court, with the assistance of her McKenzie friend, she took a careful and consistent position. She remains unconvinced the draft will is reliable. Mr Kay agreed that he would have had to file all the relevant documentation irrespective of Hanna’s position.

[52]   Costs should be borne by the estate. Mr Kay, in his frank and candid way, said that he would be modest and reasonable in his claim, noting wryly that he is from Whakatāne not Queen Street. He is to file a schedule of costs within 10 days of receipt of this decision.

Becroft J