Estate of Fairley

[2023] NZHC 2491

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001980

[2023] NZHC 2491

UNDER

The Wills Act 1947, s 14

IN THE MATTER OF

The estate of GRAHAME MCDONALD FAIRLEY

Plaintiff

BETWEEN

MARK GRAHAM FAIRLEY, RONALD GRANT ROBINSON and JOANNE

CLARA LEE

Applicants

Hearing:	On the papers
Appearances:	J E McLennan for Applicants
Judgment:	6 September 2023

JUDGMENT OF VENNING J

This judgment was delivered by me on 6 September 2023 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Holmden Horrocks, Auckland

ESTATE OF FAIRLEY [2023] NZHC 2491 [6 September 2023]

[1]    Mark Graham Fairley, Ronald Grant Robinson and Joanne Clara Lee apply for an order that a letter of 10 February 2022 be declared as the valid will of the late Grahame McDonald Fairley (the deceased), together with related orders.

[2]Mark is the deceased’s son and Mr Robinson is his family solicitor.

[3]    Mark Fairley and Ronald Robinson, together with Susan Jean Fairley (the deceased’s daughter), were named as executors and trustees of the deceased’s current will made on 18 December 2017. Joanne Lee is the deceased’s niece and was named as a trustee of a trust which the deceased intended to establish prior to his death.

Background

[4]    At the time of his death the deceased was 92 years old. He is survived by his children, Mark and Susan. Mark has two sons, Joshua and Matthew, aged 36 and 32 respectively. Susan has a son, Benjamin (Ben). The deceased’s wife and Mark and Susan’s mother pre-deceased him.

[5]    Ben and his mother, Susan, live in Melbourne in a property held in the deceased’s name. Although Ben is talented artistically, he suffers from a developmental coordination disorder known as dyspraxia.

The 2017 will

[6]The deceased’s current will was made in 2017. It provided for:

(a)Legacies of $10,000 each to the deceased’s three grandchildren, Joshua, Matthew and Ben;

(b)The Melbourne property was to be held by the executors on trust to permit Susan to live in it until her death subject to her paying the outgoings and maintaining the property;

(c)Loans given to the trustees of the MFN Family Trust (Mark’s family trust) and to Mark Fairley would be forgiven;

(d)The residuary estate was to be divided into two equal shares with one half paid to Mark and other half divided as follows:

(i)$50,000 was to be held by the trustees on trust as a fund to meet the costs and outgoings of the Melbourne property in the event that Susan failed to meet her obligations; and

(ii)The remaining part of that one half of the residue would be paid to Susan.

[7]    On 31 December 2021, Mark advised Mr Robinson that the deceased had told him he wished to update his will. The email attached a signed document from the deceased titled “This is the last will and testiment [sic] by Graham [sic] McDonald Fairley, born 27 September 1929”. The will letter was witnessed and signed by Mark Fairley’s wife, Robyn. In the will letter of 31 December 2021, the deceased expressed his wishes as follows:

(a)That the Melbourne property be transferred to a trust referred to as the Grahame Family Trust (although the trust was not in existence);

(b)That Ben was to have a life interest in the Melbourne property which was to be managed by the trustees;

(c)Susan was to have a life interest in the Melbourne property on the condition that she paid outgoings;

(d)That should Susan not meet the outgoings, the trustees would take appropriate action to protect Ben’s life interest;

(e)The deceased’s property in Auckland at 321/64 Victoria Street, was to be left to Mark’s family trust;

(f)Any funds held on term deposit were to be divided as follows:

(i)$100,000 placed into an account under the name of the Grahame Fairley Trust to meet the legal expenses in relation to the Melbourne property; and

(ii)$200,000 to be shared equally by Mark and Susan.

(g)The balance to be used for the execution of all required services and procedures with any remaining balance for his great-grandchild, Quinn Maggie Fairley.

[8]    Mr Robinson discussed the proposed changes to the deceased’s will with him on 20 January 2022, and on 29 January 2022 visited the deceased to discuss them further. At that meeting the deceased confirmed his wishes, in particular the establishment of a trust for the ultimate benefit of Ben. Mr Robinson had prepared a draft will but following his further discussions with the deceased at the meeting on 29 January 2022, he did not consider the draft would meet the remainder of the deceased’s testamentary intentions. Mr Robinson suggested to the deceased that the deceased keep personal ownership of the property in the meantime, but that he should form a trust and include a clause in his will providing for the Melbourne property to be transferred to the trust on his death. Mr Robinson also proposed a formal will and trust deed for the deceased. The deceased advised Mr Robinson that Mark had previously worked with a trust company, New Zealand Family Trust Services Ltd (NZFTS), and they would prepare the trust deed. The deceased advised Mr Robinson that finalising the will could wait until the trust deed had been prepared.

[9]    On 14 February 2022, Mark Fairley emailed Mr Robinson another letter, this time attaching the 10 February 2022 will letter. Mark Fairley had prepared and typed out this will letter at the deceased’s instructions. The deceased confirmed the letter contained his wishes for his will and that it was to amend and/or replace both the 2017 will and the earlier will letter of 31 December 2021. The deceased instructed Mark to email the letter to Mr Robinson for his formal documentation. As with the earlier

letter, the 10 February 2022 will letter was entitled “This is the last will and testament [sic] by Graham [sic] McDonald Fairley, born 27 September 1929”.

[10]The significant changes were that:

(a)All and not just part of the deceased’s cash of approximately $200,000 were to be used for the maintenance of the Melbourne property and for estate expenses; and

(b)An additional clause, that all gifts and loans to Susan, Mark and grandchildren were to be forgiven on his death.

[11]   Ultimately there were delays in establishing the proposed trust. On 7 March 2022, the directors of NZFTS met with the deceased and Mark. The trust deed was signed by both the deceased and Mark, but Mr Fairley instructed the NZFTS to hold off on signing as trustee until his niece, Joanne Lee, had signed. Unfortunately, by the time Joanne Lee had signed and returned the deed the deceased had died. On the evidence of both Mark Fairley and Mr Robinson, the deceased’s intentions had not changed from 10 February 2022 until his death.

Parties’ position

[12]   All the beneficiaries from the existing will and/or potential beneficiaries named in the will letter of 10 February 2022 consent to the 10 February 2022 will letter being validated as the deceased’s last will. The written consents of Susan, Ben, Joshua and Matthew have been filed. Mark has confirmed his consent and of course brings this application. Joanne Lee, the deceased’s niece, also supports the application.

Evidence

[13]   The application is supported by substantive affidavits of Mark and Mr Robinson. Those affidavits annex the relevant documentation, including the 10 February 2022 letter. There is also an affidavit by Ms Walden, annexing the consents referred to. Ms Lee has sworn a separate affidavit confirming that if appointed an executor of the deceased’s estate, she will execute the will in accordance with the law.

The law

[14]   As noted, the applicants seek to have the letter of 10 February 2022 declared valid as the deceased’s last will. The application is made under s 14 of the Wills Act 2007. Part 19 now permits such applications to be brought by way of originating application.1

[15]   The document created on behalf of the deceased and authorised by him satisfies the requirements of s 8 of the Wills Act 2007 as to the meaning of a will. While the deceased’s first name is actually Grahame (with an e), he routinely was known by and used Graham (without the e).

[16]   However, the letter of 19 February 2022 fails to satisfy the requirement of a valid will under s 11 of the Act as it has not been signed by the deceased and nor has it been witnessed by two witnesses.2

[17]   Section 14 is a remedial section which confirms that this Court may declare the will valid despite the fact of non-compliance with s 11, if the Court is satisfied the document expresses the deceased’s testamentary intentions.

[18]Section 14(3) sets out the matters the Court may consider:

(a)The document;

(b)Evidence on the signing and witnessing of the document;

(c)Evidence of the deceased’s testamentary intentions; and

(d)Evidence of statements made by the deceased.

[19]   In this case there is a substantial volume of evidence confirming the deceased’s testamentary intentions which were consistent in all material respects from late 2021 up to and including the 10 February 2022 letter. The evidence of Mark and

1      High Court Rules 2016, r 19.2 (xa).

2      Wills Act 2007, s 11.

Mr Robinson also confirms the deceased’s intention did not change from 10 February 2022 before his death on 4 May 2022. The reason a formal will was not executed that complied with s 11 of the Act was that the deceased was awaiting completion of the trust documentation. As to the identity of the executors, Mr Robinson’s evidence confirms that the deceased wished that his son, Mark, and Mr Robinson should remain as executors but that his niece, Joanne Lee, should replace Susan as the third executor. That was recorded in both the 29 January 2022 draft will and in Mr Robinson’s notes of the meeting, although there was no mention of the executors in his will letter of 10 February 2022.

[20]   The applicants have confirmed their willingness and ability to act as executors and make the dispositions of the estate as directed in the will letter of 10 February 2022 and, importantly and relevantly, Susan consents to the orders sought which include orders, if the will is validated, appointing the applicants as executors of the estate and seeking probate be issued in common form to them.

[21]   The document prepared by the deceased, being entirely consistent with the deceased’s testamentary intentions as confirmed by Mr Robinson in particular, satisfies the Court that  it is appropriate to  make the orders sought declaring the     10 February 2022 letter valid as a will for the deceased.

[22]   The Court is satisfied the letter reflects the deceased’s testamentary intention at the date of his death which is entirely consistent with his concern and intent to ensure Ben’s long-term security and otherwise to treat members of his family fairly.

[23]   Further, I accept the submission of counsel, Mr McLennan, that it is clear from the statements made by the deceased he intended to appoint Mark, Mr Robinson and Joanne Lee his trustees and executors.

[24]   In light of the additional information and Susan’s consent, the Court appoints Mark Graham Fairly, Ronald Grant Robinson and Joanne Clara Lee as executors of the estate of the deceased and grants probate in common form of the letter of 10 February 2022 to the applicants as the appointed executors to the deceased’s estate.

[25]   Costs of and incidental to this application are to be paid from the estate of the deceased.

Venning J