Estate of Fraser

[2020] NZHC 2448

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2020-476-000012

[2020] NZHC 2448

IN THE ESTATE OF

PETER MARK FRASER (Deceased)

AND

DONNAMARIE DICKENS

Applicant

SHARON ANN FRASER (NEE ROBINSON)
Respondent/First Party Directed To Be Served

HOLLY-ANN FRASER
Second Party Directed To Be Served

STACEY ALANYA FRASER

Third Party Directed To Be Served

Hearing:

17 September 2020

Appearances:

C A O’Connor for Applicant

First Party Directed to be Served – Self Represented Second Party Directed to be Served – No Appearance Third Party Directed to be Served - No Appearance

Judgment:

18 September 2020

JUDGMENT OF GENDALL J

This judgment was delivered by me on 18 September 2020 at 2:15 p.m. pursuant to Rule

11.5  of the High Court Rules

Registrar/Deputy Registrar Date:

RE ESTATE FRASER [2020] NZHC 2448 [18 September 2020]

Introduction

[1]                 The applicant Donnamarie Dickens (Ms Dickens) seeks a declaration pursuant to s 14 of the Wills Act 2007 (the Act) declaring a document to be the valid will of the deceased Peter Mark Fraser (Mr Fraser) who she describes as her brother.

[2]Mr Fraser died at Timaru on 25 March 2019.

[3]                 The document in question (the July 2018 document) is handwritten and purports to be a will. It appears to be in the handwriting of Mr Fraser, it comprises three pages and at the head of the pages are the words “Will 19/7/2018” in the case of pages 1 and 2, and “Will” in the case of page 3.

[4]                 It has been signed by Mr Fraser alongside the date “19/7/2018” and it is witnessed but only by one person. This witness has described herself in the document as “Robyn Lee Parry” of 43 Abbott Street, Pareora”, (Ms Parry). She has signed with her name. There is no other witness to the document.

[5]                 The July 2108 document begins on page 1 with the words “this is the will of Pete Mark Fraser” and then it goes on to describe and to dispose of named assets.

[6]                 Previously, Mr Fraser, who was at the time married to the respondent,  Sharon Ann Fraser (Robinson) (the respondent) on 13 March 2004 had signed an earlier will with the Public Trust Office. This appointed the Public Trustee as his executor and effectively transferred all his estate to the respondent as his then wife (the respondent).

[7]                 Subsequently, Mr Fraser and the respondent separated. Then, on 16 April 2018, they were the subject of consent orders under the Property (Relationships) Act 1976 made in the Family Court at Timaru dividing their relationship property between them. As I understand the position, Mr Fraser and the respondent had two children of their relationship, Holly-Ann Fraser and Stacey Alanya Fraser. Both of these children, as I understand it, are over age 20. They have each filed in this Court forms consenting to the order sought by Ms Dickens to declare the 19 July 2018 document, the valid will of their late father, Mr Fraser.

[8]                 Evidence is filed on the present application by the applicant, Ms Dickens, and the witness, Ms Parry.

The law

[9]Section 14 of the Act 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.

[10]              Section 14(2) of the Act, as I note, permits the Court to make an order declaring the document in question to be a valid will:

If it is satisfied the document expresses the deceased person’s testamentary intentions.

[11]              It is clear the onus is on the applicant Ms Dickens to prove on the balance of probabilities that the handwritten document appears  to  be  a  will  and  expresses Mr Fraser’s testamentary intentions.

[12]              There is no doubt here that the Courts have taken a robust approach in applying s 14(2) of the Act. It is to be interpreted:1

1      Re Ferron [2012] 2 NZLR 551 at [11].

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 decision on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not form.

Analysis

[13]              Having considered the 19 July 2018 document which describes itself as a “will” and “the will of Mr Fraser” I am left in no doubt that the document appears to be a will in terms of s 14(1)(a). The document purports to name and dispose of all assets which it seems Mr Fraser (an actual person) owned at the date of his death. In particular it refers in the main to those assets being assets he had kept as his separate property in terms of the earlier relationship property agreement entered into with the respondent.

[14]              Next, there can be no question that the July 2018 document does not meet the requirements of s 11 of the Act. It is not witnessed by two witnesses, being witnessed only by one witness, Ms Parry.

[15]              There is no question that this July 2018 document does not comply with the requirements of s 11(4) of the Act so the jurisdiction threshold for s 14 is met.

[16]              It is also not contested that the July 2018 document came into existence in New Zealand.

[17]              I am satisfied on the evidence before me that Mr Fraser did intend the July 2018 document to be his will. The document was prepared by him and completed in his own handwriting. It was signed in July 2018, some four months after the Family Court order dealing with the relationship property division between Mr Fraser and the respondent consequent upon their separation. With his separation from his wife, the respondent, Mr Fraser’s circumstances in July 2018 at the time had changed considerably.

[18]              In her affidavit filed in support of the present application the sole witness,  Ms Parry, deposed:

2. On 19 July 2018,  in  Winchester,  New  Zealand,  the  deceased  handwrote the will document in my presence and numbered each page. He then signed the will document by signing his name as it now appears on the will document, intending the signing to be a valid signing of his will.

…

6.I knew the deceased well and he was separated from his wife at the   time he wrote his will. He was very concerned about protecting his motorbikes from the people named in the will and that is why he wrote it the way he did.

[19]              As to that last aspect, in the July 2018 document Mr Fraser at the conclusion of the provisions dealing with all his assets added the words:

Under no circumstances are any of my money, possessions [sic] vehicles, bikes, tools or property I own to go to Holly Ann Fraser, Stacey Alanya Fraser, Sharon Ann Fraser. They get nothing at all of mine.

[20]              It might be said that those words of Mr Fraser which I outline at para [19] above, confirm once more his clear intention that any previous wills or testamentary dispositions are replaced by this document and that he wished to put his affairs in order post-separation from the respondent. In considering factors outlined at s 14(3) of the Act, on the face of the July 2018 document, handwritten by Mr Fraser as I have noted, it is clear it was headed on various pages “Will 19/7/208” and reiterated:

This is the will of Peter Mark Fraser.

[21]              So far as evidence of the signing and witnessing of the document is concerned, in her evidence Ms Parry states, first, that she and Mr Fraser were unaware of the requirements of the Wills Act requiring a will to be witnessed by two persons and, secondly, that they both thought one person was sufficient.

[22]              So far as evidence of Mr Fraser’s testamentary intentions are concerned, once again, Ms Parry’s evidence is clear as to her recollections regarding Mr Fraser’s reasons for making a new will. Clearly he recognised that he needed a new will given his separation from the respondent and also that this will varied the provisions of his earlier 2004 will quite markedly.

[23]              In Balchin v Hall,2 Courtney J stated that where a Court is satisfied that the document in issue represents the deceased person’s genuine intentions, it can ordinarily be expected that a validating order will be made. It is true the Court does retain a discretion under s 14 of the Act once the statutory criteria have been fulfilled, but this is only residual in nature. I have concluded here that the July 2018 document reflects Mr Fraser’s testamentary intentions and, further, that no exceptional reasons exist here such that the Court should not give effect to his clear wishes. The respondent has not been able to put before me any such exceptional reasons why the Court should not give effect to Mr Fraser’s wishes here.

[24]              Turning now to the arguments advanced in opposition to the present application by the respondent, her position repeated in her oral submissions before me is that the earlier 2004 will appointing the Public Trust as trustee (properly signed with two witnesses) should be seen as the only legal and valid will here. This is as opposed to what the respondent describes as the “handwritten will which negates any claim Sharon Ann Robinson, Holly Ann Fraser or Stacey Alanya Fraser has”.

[25]              There is also an issue raised by the respondent in that she maintains Mr Fraser and his estate still owe her $90 which the relationship  property  order  of  the  Family Court required him to pay to her. She says this money is currently being held in the trust account of Quentin Hix Legal, Timaru, and she wants payment of this sum. That, of course, is a matter which has no bearing on the issue before me under the Wills Act 2007.

[26]              Lastly, the respondent notes that in March 2020 she filed in the Family Court at Timaru an application against Mr Fraser’s estate for claims under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. Again, these matters have no bearing upon the present Wills Act 2007 application before me.

[27]              Overall then, and for the reasons I have outlined above, I declare that the  July 2018 document is valid as the last will of Mr Fraser and as such it revokes his previous will made at the Public Trust Office on 13 March 2004.

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

[28]              This declaration means that application can now be made for probate of the will.

[29]              Lastly, and for completeness, I need to note that before me Mr O’Connor for the applicant, Ms Dickens, invited this Court to address here the Family Protection Act application made by the respondent in the Family Court. He said this is pursuant to what he describes as this Court’s concurrent jurisdiction. On this I heard no argument from any party concerning any relevant issues that might arise under the Family Protection Act. Nor is there before this Court the Family Protection Act application file from the Family Court.

[30]              In these circumstances, that matter and the Law Reform (Testamentary Promises) Act 1949 application, both of which I understand are still before the Family Court, must proceed there.

[31]              So far as costs and disbursements on this application are concerned, I received no submissions from Mr O’Connor or the respondent. It is appropriate, as I see it, for the applicant’s costs and disbursements here to be met from the estate. An order to this effect is now made.

[32]              The respondent is self-represented and has incurred no legal costs. If she has incurred proper disbursements in opposing this application, they may also be met from the estate. An order to that effect is also made.

...................................................

Gendall J

ADDENDUM

[33]              One matter needed to be added here. I am told Mr Frasers’ estate is a very modest one. His assets, I understand, total around $50,000 - $75,000. They represent motorbikes/motor vehicles, perhaps a little cash, personal effects, and tools. There are apparently already a number of unpaid costs and expenses outstanding in the estate.

[34]              Some finality in this matter is clearly desirable before the estate dissipates further.

[35]              With this firmly in mind, the parties are encouraged to liaise with a view to resolving amicably what issues may remain unresolved.

...................................................

Gendall J

Solicitors:

Gresson Dorman & Co, Timaru

Copies to

Sharon Fraser - First Party Directed to be Served

Holly-Ann Fraser - Second Party Directed to be Served Stacey Fraser - Third Party Directed to be Served