Estate of Fairburn
[2020] NZHC 2103
•19 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2020-404-000848
[2020] NZHC 2103
UNDER s 14 of the Wills Act 2007 IN THE MATTER OF
the Estate of BRIAR RUTH FAIRBURN
BETWEEN
DINAH HOLMAN, TRISTAN MATTHEW HOLMAN and NATHANIEL ANDREW HOLMAN
Applicants
AND
LYN PATRICIA AWHI OAKLEY and GAIL
BERNICE WILLOW ABLER as executors in the estate of BRIAR RUTH FAIRBURN Respondents
Hearing: 11 August 2020 Appearances:
P J Wright for the Applicants
S E Wroe for Ms Alber as an interested person
Judgment:
19 August 2020
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 19 August 2020 at 4.30pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Stainton Chellew, Auckland Denham Bramwell, Auckand S E Wroe, Barrister, Auckland
the estate of BRIAR RUTH FAIRBURN (HOLMAN v OAKLEY) [2020] NZHC 2103 [19 August 2020]
Introduction
[1] Briar Fairburn died at her home in Kohukohu, on the Hokianga, in late July 2018. Ms Fairburn had made a formal will in September 1998. That will appointed the respondents, Ms Oakley and Ms Alber, as Ms Fairburn’s executors and trustees. Probate of the will was granted by the High Court on 12 August 2019.
[2] Ms Fairburn had also, in either 2007 or 2010, prepared a more informal document that addressed (to put it neutrally) the distribution of her assets on death. The document is one page of handwritten notes. It is neither signed nor witnessed.
[3] The first-named applicant, Ms Holman, says that the handwritten document reflects an arrangement that she reached with Ms Fairburn in 2007. Under that arrangement Ms Fairburn agreed to leave, in her will, a large part of her estate to Ms Holman’s two sons Tristan and Nathaniel (the other two applicants). Ms Holman says that, consistently with that arrangement, the document provides for a disposition of the majority of Ms Fairburn’s estate to Tristan and Nathaniel.
[4] Because the document is neither signed nor witnessed, it does not comply with the formal requirements in s 11 of the Wills Act 2007. Section 14 of the Wills Act confers power on the Court to make an order declaring a document that appears to be a will, but that does not comply with s 11, to be a valid will. The power can be exercised if the Court is satisfied that the document expresses the deceased’s testamentary intentions.
[5] The applicants apply for an order under s 14 declaring that the document is a valid will.1 The respondents, as executors of Ms Fairburn’s estate, abide the decision of the Court. Ms Alber appears in her personal capacity as an interested party, being a beneficiary under the 1998 will. She opposes the application.
1 The applicants also applied for an order revoking the grant of probate of the 1998 will. The applicants did not pursue that order at the hearing.
Background facts
[6] The applicants applied for a s 14 order on 10 June 2020, by way of originating application. Their application was supported by two affidavits made by Ms Holman, one of which had been made in a related testamentary promise proceeding (referred to below). Ms Alber’s opposition was supported by her own affidavit and by an affidavit made by Ms Oakley. Ms Holman made an affidavit in reply.
[7] None of the parties required any deponent to attend court for cross- examination. For the purposes of this proceeding there was no dispute about the background facts set out here, though there were disputes about the inferences that should be drawn from them.2
[8] At the time that she made her 1998 will, Ms Fairburn was living in Kerikeri and was friends with Ms Alber and Ms Oakley. Under that will Ms Alber and Ms Oakley were beneficiaries as well as executors. Each was to receive one quarter of Ms Fairburn’s residuary estate. Another one-quarter residuary beneficiary was the Adidam (New Zealand) Trust, also known as the Ashram. Ms Holman was also, to a lesser extent, a residuary beneficiary.
[9] Shortly before Ms Fairburn made the 1998 will, Ms Alber had moved to Fiji. There appears to have been little contact between Ms Fairburn and Ms Alber thereafter. Ms Alber says that she did not see Ms Fairburn again. Among Ms Fairburn’s possessions were found two lists of contact telephone numbers dating from 2006/2007 and 2016. Neither had Ms Alber listed as a contact.
[10] At about the time of, or shortly after, making her 1998 will, there was a dispute between Ms Fairburn and Ms Oakley. This arose out of a purchase of a property in Kohukohu that they had planned to undertake together. By December 1998, Ms Oakley had engaged a solicitor to write to Ms Fairburn about the dispute. The dispute was resolved by Ms Fairburn purchasing the Kohukohu property by herself. Ms Oakley then moved to Auckland. The Kohukohu property became Ms Fairburn’s home, and was the most substantial asset in her estate.
2 The position may, or may not, be different under the related testamentary promise proceeding.
[11] Ms Fairburn was a first cousin of Ms Holman. Ms Holman was born in 1938, Ms Fairburn in 1948. Their families were close when they were growing up, but once Ms Fairburn became an adult they largely lost touch with each other until January 1998. In that month they reconnected at the funeral of Ms Fairburn’s father.
[12] By that time Ms Fairburn was the last remaining member of her immediate family. She had never married and had no children. It appeared to Ms Holman that Ms Fairburn did not have anyone to provide her with steady support. She resolved to take her under her wing. From about January 2000 she began and maintained more frequent contact with Ms Fairburn. They became close, and Ms Holman supported Ms Fairburn in many ways over the years until her unexpected death in July 2018.
[13] In December 2006 Ms Holman saw a notice by the Manukau City Council that the Council intended to acquire land at Flat Bush, the title to which was still in the name of the late William Fairburn. William Fairburn had died in 1859. He was a great-great-grandfather of Ms Holman. The notice set a June 2007 deadline for claiming ownership of the land and compensation for the Council’s acquisition.
[14] Ms Holman notified other descendants of William Fairburn, including Ms Fairburn, of the Council’s plans. Ms Holman then played the lead role, on behalf of the Fairburn descendants, in conducting research to prove a claim to the land, in dealing with lawyers that she engaged, and in negotiating with Council. Ms Fairburn gave Ms Holman a power of attorney for this purpose.
[15] Ms Holman estimates that she did the equivalent of nearly 14 months’ full-time work on the claim. Part-way through her work, on 2 September 2007, there was a meeting of the Fairburn descendants, except for Ms Fairburn. By then it appeared that the Council would agree to pay about $2,500,000 for the land, with a 10 per cent deposit to be paid in December 2007. Those present agreed that they would compensate Ms Holman for her work on the land claim. They agreed to pay her 10 per cent of their respective shares of the net proceeds from the claim.
[16] On the evening of 2 September 2007 Ms Holman telephoned Ms Fairburn to tell her what had been agreed. She told Ms Fairburn that the agreement to compensate
her had to be unanimous by all claimants. Ms Fairburn proposed that instead of paying Ms Holman compensation she would prefer to leave a large part of her estate, including her home, to Tristan and Nathaniel in her will. Ms Holman was very pleased to agree to Ms Fairburn’s proposal. Ms Fairburn also asked Ms Holman about the possibility of making one of Tristan or Nathaniel the executor of her will.
[17] A deed was executed by all the Fairburn claimants, including Ms Fairburn, in September and October 2007. This provided that the claimants would pay 10 per cent of their net proceeds to Ms Holman as compensation for her work.
[18] Although Ms Fairburn executed that deed, she and Ms Holman acted as if Ms Fairburn was not liable to pay any compensation to Ms Holman, reflecting the private arrangement that they had reached on 2 September 2007. Ms Holman’s work did, as expected, result in an agreement under which the Council paid about
$2,500,000 to the Fairburn claimants. The Council paid a deposit in December 2007 and the balance in June 2010. On each occasion, those proceeds were distributed by the claimants’ lawyers to each claimant, less the 10 per cent compensation payable to Ms Holman. But each time Ms Holman then reimbursed Ms Fairburn for that 10 per cent.
[19] After Ms Fairburn died Ms Holman found that Ms Fairburn’s only formal will was the 1998 will. Ms Holman felt that Ms Fairburn had not fulfilled her side of the private arrangement. In 2019 Ms Holman commenced a proceeding against Ms Fairburn’s executors under the Law Reform (Testamentary Promises) Act 1949.
[20] That testamentary promise proceeding is in progress. In the meantime, Ms Holman and her two sons have brought this proceeding. They say that Ms Fairburn prepared a handwritten document that provided that on her death her home, car and some cash should be distributed to Tristan and Nathaniel, with other assets and cash to be distributed to Ms Holman and to the Ashram. They apply for that document to be validated under s 14 of the Wills Act as Ms Fairburn’s will.
[21] The applicants rely on several documents that were found in Ms Fairburn’s home after her death. These were annexed as exhibits A, B and C to Ms Holman’s
principal affidavit in support of the application, and it will be convenient if I refer to them in that way. It is common ground that the handwriting on each exhibited document is Ms Fairburn’s.
[22] Exhibit A is a handwritten note. It is undated, but appears to be a note made by Ms Fairburn of the telephone conversation that she had with Ms Holman on the evening of 2 September 2007. It begins with brief references to the then expected sale of the land to the Council. It refers to an agreement that will have “10 signatories, all sign” but then says “Di & me private agreement (despite signed agreement)”. This is consistent with Ms Holman’s account that she and Ms Fairburn entered into a private agreement under which Ms Fairburn would not have to pay 10 per cent of her net proceeds from the land sale to Ms Holman. The note does not say what Ms Fairburn agreed to do instead of paying that 10 per cent. But, as I said earlier, in this proceeding Ms Holman’s account of the private arrangement is not in dispute.
[23] Exhibit B consists of two documents that were found together in a bag. One is a printed standard-form template for a will. The form allows a will to be prepared by filling in the gaps that are in the template. It has instructions for completion, and two example wills. No gap has been filled in. There is no handwriting on the form. The other document in the bag is an envelope on which Ms Fairburn has written the names “Nathaniel” and “Tristan”. It is undated.
[24]Exhibit C is another handwritten document. I reproduce it in full:
[25] Ms Holman deposed that Ms Fairburn’s reference to “Boys” in exhibit C was a reference to Nathaniel and Tristan, as that was how Ms Holman referred to them when talking to Ms Fairburn. This was not disputed by Ms Alber.
[26] In their application the applicants sought an order that exhibits A, B and C collectively be declared a valid will. However, in written and oral submissions
Mrs Wright, counsel for the applicants, clarified that the order was sought solely in respect of exhibit C. Exhibits A and B were relied on as part of the context in which I should determine whether to declare exhibit C to be a valid will.
[27] Exhibits A, B and C were found in Ms Fairburn’s house during an inventory that was made of her possessions after her death. There is no evidence as to whether they were found in a particular part of the house (for example, with other important documents), nor any evidence as to whether exhibits A, B and C were found together (apart from the evidence that the documents in exhibit B were found together).
The legal framework
[28] Section 14 of the Wills Act confers on the Court power to declare an informal will valid. It 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.
[29] Under s 14(1) the key question is whether the document in question “appears to be a will”. This requires consideration of s 8:
8 Meaning of will
(1)Will means a document that—
(a)is made by a natural person; and
(b)does any or all of the following:
(i)disposes of property to which the person is entitled when he or she dies; or
(ii)disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or
(iii)appoints a testamentary guardian.
[30] Whether a document “appears to be a will” depends, in a case like this (where it is common ground that the document was made by Ms Fairburn), on whether the document appears to do one or more of the things set out in s 8(1)(b).3 The applicants rely on s 8(1)(b)(i). They say that exhibit C disposes of property to which Ms Fairburn was entitled when she died. Ms Alber disputes that.
[31] If a document “appears to be a will” and therefore passes through the s 14(1) gateway, under s 14(2) the Court “may”, if it is satisfied that the document expresses the deceased’s testamentary intentions, declare the document valid. The applicants say exhibit C expresses Ms Fairburn’s testamentary intentions. Ms Alber says it does not.
[32] An applicant under s 14 bears the onus of proving, on the balance of probabilities, that a document appears to be a will and that it expresses the deceased’s testamentary intentions.4 The Court may consider the matters set out in s 14(3).
[33] The “may” in s 14(2) means that the Court has a discretion whether to make the order. There is authority that that discretion is residual: if the applicant establishes the prerequisites of ss 14(1) and (2), the Court should ordinarily declare the document valid.5 This discretion is not in issue here. Ms Alber very fairly accepts that, if I find that the document appears to be a will and expresses Ms Fairburn’s testamentary intentions, I should validate it.
3 Re Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].
4 At [22].
5 Caird v Caird [2018] NZHC 1605 at [78].
The parties’ positions
[34] The applicants say that, read in context, exhibit C disposes of property to which Ms Fairburn was entitled when she died. They say that the first three handwritten lines provide for dispositions to the “Boys” (Nathaniel and Tristan), “Di” (Ms Holman) and the Ashram. The next group of lines show that Ms Fairburn estimated that she had cash of $200,000, and that she intended to divide that between Nathaniel and Tristan (one eighth each), Ms Holman (one quarter), and the Ashram (one half). The dispositions are therefore said to be:
(a)Nathaniel and Tristan are to receive Ms Fairburn’s house, land and car (reflected in the figure “350,000”), together with one eighth each of Ms Fairburn’s residual cash (reflected in the two figures of “25,000”).
(b)Ms Holman is to receive Ms Fairburn’s contents and personal belongings (reflected in the figure “20,000”), together with one quarter of Ms Fairburn’s cash (“50,000”).
(c)The Ashram is to receive one half of Ms Fairburn’s cash (“100,000”).
[35] The applicants say, further, that exhibit C expresses Ms Fairburn’s testamentary intentions. They rely on the consistency between the dispositions that (they say) are made in exhibit C and the private arrangement that was reached between Ms Holman and Ms Fairburn. They acknowledge that Ms Fairburn died some years after preparing exhibit C, without having put her intentions into a formal will. They say that this does not detract from exhibit C expressing Ms Fairburn’s testamentary intentions.
[36] Ms Alber disputes both points. She accepts that some of the words in exhibit C could, when read individually, amount to a disposition of property. For example, the first two sets of lines may indicate a disposition of Ms Fairburn’s house, land, car and cash in the way suggested by the applicants. But the document has to be read in its entirety. Ms Alber says that other parts of exhibit C, particularly the words below the horizontal line, show an alternative (and inconsistent) disposition. The document as a whole is just a preliminary note, and cannot amount to a disposition of property.
[37] Ms Alber also says that exhibit C does not express Ms Fairburn’s final testamentary intentions. Ms Fairburn knew that a formal will was required, having prepared the 1998 will with the assistance of a firm of solicitors. At least from June 2010 Ms Fairburn had the money to engage solicitors to prepare a proper will. She did not. Ms Fairburn had a template will ready to fill out, but she never completed it.
The issues
[38]There are two issues:
(a)Does exhibit C appear to dispose of Ms Fairburn’s property?
(b)Does exhibit C express Ms Fairburn’s testamentary intentions?
[39] In some cases – and this is one – these issues will be intertwined. As Whata J has observed, “the weaker the documentation, the stronger the evidence will need to be that the documents represent the intentions of the deceased”.6 The less a document appears to be a will, the less likely it expresses testamentary intentions.
Does exhibit C appear to dispose of Ms Fairburn’s property?
[40] Mrs Wright emphasised that the purpose of s 14 is curative, and that the courts have therefore taken a robust approach in applying the section. She relied particularly on Re Estate of Feron7 and Caird v Caird.8
[41] I accept those points. Even with very bare documents the courts have shown a willingness to fill in gaps and make sense of the words used. They have also been prepared to validate documents that are mere “skeletons” for wills.
[42] In Re Estate of Feron the deceased had given oral instructions to her solicitor to update her will, and had sent a follow-up email. The solicitor took detailed handwritten notes of the oral instructions. The solicitor gave evidence explaining the
6 Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [19]. See also Caird v Caird [2018] NZHC 1605 at [38].
7 Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551.
8 Caird v Caird [2018] NZHC 1605.
notes. Whata J validated, under s 14, the handwritten notes together with the email. In so doing he said:
[18] Needless to say, notes being notes, the reader is required to fill numerous gaps to make sense of the words used. But the notes are self- explanatory and the intentions are tolerably clear. The email is more complete, and the intentions of the deceased are obvious. Taken together the notes and email at least provide the skeleton for a will. The notes are headed “New Will”, the executor is clearly identified and the dispositions recorded in an orderly way.
[43] Even more gap-filling was required in Caird v Caird, which might be the high- water mark of the cases on s 14. The deceased discussed what he wanted in his will with a close friend. The friend took notes recording how the deceased wanted to dispose of his property. The deceased placed the notes in the top drawer of a cabinet, with other important documents. The notes were abbreviated in the extreme, and made little sense by themselves. Justice Mander had the benefit of the friend’s evidence explaining the notes. He was therefore able to make sense of them, and was satisfied that they provided for dispositions of property. The notes were validated under s 14.
[44] But a robust approach will not cure the problems with exhibit C. Unlike the notes in Re Estate of Feron, exhibit C is not “self-explanatory”, nor are its “intentions tolerably clear”. In this respect I accept the submission of Ms Wroe, counsel for Ms Alber, that exhibit C contains no clear disposition of property when the document is considered as a whole. She pointed to the words below the horizontal line near the bottom of the document. These, she said, appear to show an alternative way of distributing Ms Fairburn’s estate. I agree. Although that part of the document has its own internal contradictions, it appears to provide for a distribution that is an alternative to that indicated in the top half of the document. Not only do the amounts differ, but there is no disposition to the Ashram.
[45] Exhibit C therefore appears to consist of notes made by Ms Fairburn of possible alternative (and inconsistent) dispositions of her property. As Ms Wroe put it, the notes appear to be “at most preliminary notes”. This is reinforced by the notes above the horizontal line on exhibit C. These seem to show interest that might be earned on a capital sum of either $50,000 or $100,000. It is not clear how this relates
to the suggested dispositions at the top of the document. Moreover, in relation to the
$50,000 there is a notation that is incomplete: “The interest of which”.
[46] None of the evidence put forward by Ms Holman can resolve the inconsistency and ambiguities in exhibit C. Ms Holman was able to assist in making sense of some of exhibit C, such as explaining that “Boys” was the term she used for her sons when talking to Ms Fairburn. But, because she did not write the notes herself (in distinction to the situations in Re Estate of Feron and Caird v Caird), she could not explain away the inherent inconsistency in the notes. To Ms Holman’s credit, she did not attempt to.
[47] I record that, when I raised with Mrs Wright the apparent inconsistency within exhibit C, she submitted that s 14 does not require that the document in its entirety be a will. I think that is likely correct. For example, one can conceive of a document that in one part addresses dispositions of property or other matters the subject of a will, and in another part addresses entirely different matters. But this is not a matter that I have to decide. Even if it is possible under s 14 to declare only part of a document a valid will, the difficulty here is that there is no means of knowing which of the alternative and inconsistent parts should be selected for validation.
[48] For these reasons I conclude that exhibit C does not appear to dispose of Ms Fairburn’s property. It therefore does not appear be a will.
Does exhibit C express Ms Fairburn’s testamentary intentions?
[49] I am not satisfied that exhibit C expresses Ms Fairburn’s testamentary intentions. As noted when addressing the first issue, the document appears to record preliminary notes and alternative possible dispositions of Ms Fairburn’s estate. In those circumstances, and even without the matters that I mention next, it is not possible to regard the document as recording her testamentary intentions.
[50] This is reinforced by two other related circumstances. The first is that Ms Fairburn at some time purchased a template will, and kept it with an envelope on which she had written the names Tristan and Nathaniel. The applicants relied on this as evidence that exhibit C expressed Ms Fairburn’s testamentary intentions. I see it
otherwise. The fact that Ms Fairburn purchased the template, but did not complete it, is consistent with the impression given by the alternative dispositions and incomplete notes in exhibit C: that she had not made up her mind.
[51] The second is the amount of time that passed after Ms Fairburn created exhibit C and before her death. This was likely in the range of eight to eleven years.9 During that time Ms Fairburn took no further steps to finalise a will in accordance with whatever intentions she may have tried to record on exhibit C. Mrs Wright said that the most likely explanation was that Ms Fairburn was enjoying life after receiving the proceeds from the Fairburn land sale, and had simply not got around to finalising a will. This, she said, was consistent with exhibit C expressing Ms Fairburn’s testamentary intentions.10
[52] In the circumstances of this case, I disagree. Ms Fairburn had previous experience of engaging solicitors to prepare a formal will. From at least 2010 she was in a financial position to do that again. Alternatively, she could have completed the template will that she had at some point purchased. That in the many years that followed she neither engaged solicitors nor completed the template is consistent with exhibit C not expressing her testamentary intentions.11
Result
[53]The application is dismissed.
[54] The applicants are to pay costs to Ms Alber. Mrs Wright and Ms Wroe helpfully agreed that costs should be assessed on a 2B basis. In the unlikely event that
9 Mrs Wright submitted that exhibit C was likely created in around June 2010. This was on the basis that it referred to $200,000 cash, and it was in June 2010 that Ms Fairburn received roughly that amount as her net share of the proceeds of settlement of the Fairburn land sale. Ms Wroe pointed out that Ms Fairburn would have known as early as September 2007 that she was to receive about $200,000 at settlement. Exhibit C might, she said, therefore date from September 2007. I do not have to resolve this difference. Even if exhibit C was not created until June 2010, that was a significant time before Ms Fairburn’s death.
10 Mrs Wright relied on Re Wardill [2016] NZHC 3114 at [21].
11 Both parties’ submissions proceeded on the basis that s 14(2) requires the document to express the deceased person’s testamentary intentions at the date of death. The more natural reading of s 14(2) is that the document has to express those intentions at the date of the document. It is not necessary to resolve this interpretative question. For the reasons I have given, I am not satisfied that exhibit C expresses those intentions at either date.
there is any disagreement about costs, counsel may file brief memoranda of no more than three pages each: Ms Alber within ten working days of judgment, the applicants within a further five working days.
Campbell J
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