Estate of Kim

[2022] NZHC 676

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-605483

CIV-2022-485-000116 [2022] NZHC 676

IN THE MATTER OF

Section 14 of the Wills Act 2007 and Section 31 of the Wills Act 2007

IN THE MATTER OF

An application by Shaun Michael McGivern of Auckland, Solicitor for an order that a document be declared a valid codicil of the Deceased Moonja Kim also known as Moon Ja Kim of Auckland, Retired (Deceased )

and

An application by Shaun Michael McGivern of Auckland, Solicitor for an order that the will dated 4 March 2020 be corrected to

carry out the intentions of the Deceased Moonja Kim also known as Moon Ja Kim of Auckland, Retired (Deceased )

Hearing:	On the papers
Judgment:	4 April 2022

JUDGMENT OF GENDALL J

RE the Estate of KIM [2022] NZHC 676 [4 April 2022]

Introduction

[1]Before the Court are two applications:

(a)The first application seeks an order that the following documents are declared valid as the codicil of Moonja Kim (the Deceased):

(i)Handwritten undated documents in the Korean language which have the name of the Deceased printed and signed at the bottom (the Korean Document One and Two).

(ii)A handwritten envelope in the Korean language (the Korean Envelope).

(iii)A handwritten envelope headed “New Song Church” in the English language (the New Song Church envelope).

(b)The second application seeks an order that the will of the Deceased dated 4 March 2020 (the Will) be corrected in certain ways to carry out the intentions of the Deceased.

[2]        The present applications are brought under ss 14 and 31 of the Wills Act 2007 (the Act). I will address these sections further below.

Background

[3]        The Deceased died at Auckland, New Zealand on 23 April 2020. She was aged 79 years at the time of her death.

[4]        The relevant parts of the Will, which was prepared by the Deceased ’s Auckland lawyers Kidd Legal at the time, provide:

(2)I APPOINT my Solicitor Joseph Boaz Park of Auckland Solicitor and failing her for any reason Michael John Kidd of Auckland, Solicitor and failing him for any reason a person appointed by the President for the time being of the New Zealand Law Society to be the executor and trustee (hereinafter ‘trustee’) of this my Will.

(3)I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever kind and nature and wheresoever situate including all property (if any) over which I may have some power of appointment unto my said Solicitor.

(4)IF my said Solicitor shall not survive me or die within 30 days after my death then :

(a)I APPOINT the said Michael John Kidd to be the Trustee of this my Will

(b)I GIVE DEVISE AND BEQUEATH the whole of my estate as above described unto my Trustee UPON TRUST:

(i)to pay thereout all my just debts, funeral, monumental and testamentary expenses, and all duties in respect of the whole of my dutiable estates:

(ii)to pay and divide the then residue of my estate unto and amongst such them my two daughters JEE YOUNG MIN AND JEE HOON MIN as shall survive me and attain the age of twenty years and if more than one inequal shares and proportions absolutely ”

[5]        I turn now to the Korean Document One and Two, the Korean Envelope and the New Song Church Envelope.

[6]        Those documents I refer to above were written in the Korean language but they have been translated into the English language in representative English documents which are before the Court. An affidavit of the translator Jeong Sik An relating to the translation of these Korean documents into the English language is before the Court.

[7]        Also,  before  the  Court  is  an  Affidavit  of  Shaun  Michael  McGivern  (Mr McGivern) dated 1 March 2022 swearing as to the validity and authenticity of all these documents before the Court.

[8]        I turn now to the various documents in the Korean language (for which those translations into English are before the Court).

[9]        The first is Korean Document One, this is a handwritten document dated      4 March 2020, the same day the Will was signed. This Document purporting to be from the Deceased’s translated into English relevantly here provides:

Translation of a wish

Money after selling a house:

(1)Legal fee

(2)Real estate agent’s commission (+ other advertisement fee on sales)

(3)Funeral expense (The funeral insurance which I joined shall be paid to my eldest daughter, Jee Young Min)

(4)Storage cost of packages for moving (6 months’ storage costs) – my eldest daughter Jee Young Min

(5)Principal and interest on $200,000 which I, Moonja Kim, borrowed

The money left after deducting the above expenses shall be split in half and inherited to  my  (Moonja  Kim’s)  two  daughters  (Jee  Young  Min  and  Jee Hoon Min)

To simplify procedures I shall not leave money separately to my two daughters family (my son-in-law).

…

Moonja Kim (sign) 04 March 2020

[10]      Korean Document Two which has also been translated into English is undated but again it purports to be from the Deceased and specifies:

Translation of a wish

A wish which I request to the lawyer

When the house is sold, please set aside $100,000.

As I prepared the envelopes, please remit one. And please make a bank cheque for another supporting money for missionary work and put it in the envelop [sic] (envelop: NZ$40,000)

When you deliver supporting money to Jee Young Min, please enclose my funeral insurance premium,

Then please pay back the interest of Heart [sic] Bank with $30,000. And please use remaining for funeral expenses.

Moonja Kim (signed)

P.S: please keep the above two facts in the secret to my daughter Thank you

[11]      So far as the Korean envelope  is concerned, again translated into English  this states:

Translation of Envelop (Sic)

Missionary Jee Young Min, my eldest daughter Supporting money for missionary work

NZ$ 40,000

[12]      And, as to the New Song Church Envelope, before the Court is the handwritten envelope in the English language in these words:

New Song Church

ASB 12-3085-0325675-00

For Builtn NZ $ 30,000

[13]      Also, before the Court, is an email dated 25 June 2020 (some three and a half months after the date the Deceased signed her Will) , from Joseph Park whereby it is confirmed (in Paragraph 2(2)) that the Korean Documents were delivered by courier to the Kidd Legal offices on 21 April 2020.

Present Applications

[14]       The thrust of the present applications before the Court are broadly that the intentions of the  Deceased  are  fully outlined in the handwritten document, dated    4 March 2020 and outlined as Korean Documents, One and Two as translated noted in

[9] and [10] above.

[15]   According to the applicant, these documents provide for the residue of the Deceased ’s estate to be divided equally between her two daughters, Jee Young Min and Jee Hoon Min. Following the signing of the Deceased’s Will, the Korean Documents were couriered to Kidd Legal Solicitors. The documents which were signed by the Deceased were not in a will form nor executed in accordance with s 11 of the Act.

[16]   Along with these, were the two handwritten envelopes, the Korean Envelope and the New Song Church Envelope. These envelope documents were not signed. Again, they were not executed in accordance with section 11 of the Act.

Consents of Affected Persons

[17]   The first named executor in the Deceased ’s Will, Joseph Park, as executor has renounced probate of the Will and as a named beneficiary, she/he has disclaimed any beneficial interest in the estate. Documents to this effect are before the Court.

[18]   The substituted executor Michael John Kidd has renounced probate of the Will of the Deceased. An appropriate renunciation is before the Court.

[19]   The Deceased’s two daughters, Jee Young Min and Jee Hoon Min, have both consented to the applications which are before the Court.

[20]   As I see the position, first there are no other directly affected parties here. Secondly, there is a need for leave to be granted for the present applications to be made without notice and such leave is appropriately granted.

[21]Leave accordingly is granted.

Wills Act 2007

[22]   As I indicated at the outset, it is useful here to set out the relevant sections of the Act to be considered here which I now do.

[23]Section 14 provides:

14       High Court may declare the 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.

[24]Section 31 also provides:

(1)Correction

(a)This section applies when the High Court is satisfied that a will does not carry out the will-maker’s intentions because it—

(a)    contains a clerical error; or

(b)    does not give effect to the will-maker’s instructions.

(b)The Court may make an order correcting the will to carry out the will-maker’s intentions.

Validation of the codicils

[25]   There have been a number of cases where codicils have been validated under s 14 of the Act. Generally, the necessary requirement concerns the contents of the document and not its form.1

[26]   In a decision of this Court Re Estate of Stuart2 an unwitnessed handwritten document dealt with percentages in which residuary beneficiaries were to share the residue of an estate only. In doing so however, the document appeared to dispose of property and hence appeared to be a will which included a codicil. This Court in that case validated the document as a codicil to the original will of the deceased.

1     Re Campbell [2014] NZHC 1632 at [11].

2 [2020] NZHC 529

[27]   That case has a certain similarity to the present. Korean Documents One and Two as translated into the English language are similar to the unwitnessed handwritten document in Re Estate of Stuart as incomplete to the extent that they do not appoint an executor or trustee and do not make provision for distribution of personal effects. Generally, however, as I see it these documents do provide for the disposition of the major part of the property comprised in the Deceased’s estate.

[28]   Affected parties here as I have noted have also consented to validation of the documents as codicils.

[29]   I am satisfied, too, that these codicil documents do properly express the Deceased’s testamentary intentions, and these documents do appear to be in what she may have thought were in the nature of a testamentary disposition. Although these documents do not comply with s 11 of the Act, in my view they are appropriately validated here under s 14.

[30]   Accordingly, I now validate Korean Document One and Two together with the Korean Envelope and the New Song Church Envelope which are to be read in conjunction as a codicil to the Will of the Deceased. Further, the provisions provided for in those Documents here, as translated into English, along with the supporting Korean Envelope and the New Song Church Envelope, are to be read subject to the provisions provided for in the Deceased’s Will in relation to the residue of her estate.

[31]   Orders to this effect will follow later along with a consequent order for correction of the Deceased ’s Will.

Correction of the Deceased’s Will

[32] This Correction application is made under s31 of the Act. I have outlined the provisions of this s 31 at [24] above.

[33]   The Courts on occasions have been required to made orders for correction of a Will in order to give effect to the intentions of a will-maker and have done so.

[34]   In Re Mansfield,3 Ashley J declared a clause appointing executors void for uncertainty and held that the invalid appointment did not give effect to the Deceased’s instructions. A correction of the clause was made under s 31.

[35]   Other corrections have been made to correct errors in a Will, for example, in one case when a palpable mistake relating to fractions of the residue of an estate had been made,4 and in another case, where a mistake in disposing of the remainder interest in the Deceased ’s home after expiry of the widow’s life interest on her death occurred.

In the last case, corrections orders followed.5

[36]   In the present case, I am satisfied that the Deceased’s will should be corrected under s 31 of the Act in order to carry out what I accept were her intentions provided for  in  Korean  Document  One  and   Two,   the   Korean   Envelope   and   the   New Song Church Envelope noted above.

Orders

[37]   For the reasons I have outlined above the applications before me succeed and I now make the following orders:

(a)Orders are made under s 14 of the Act validating the following documents as a codicil to the Deceased ’s Will:

(i)The Korean Documents One and Two;

(ii)The Korean Envelope; and

(iii)The New Song Church Envelope.

(b)Orders are made under section 31 of the Act to correct the Will as follows:

(i)By deleting Clause 3 contained in the Will;

3       High Court Auckland CIV-2008-404-7115, 10 March 2009

4       In Re Estate of Bryce [2013] NZHC 289

5       Re Robertson (Deceased) [2013] NZHC 2723

(ii)By deleting Clause 4 contained in the Will and replacing it with the following:

[4] (a) I APPOINT SHAUN MICHAEL MCGIVERN to be the Trustee of this my will; and

(b)  I GIVE DEVISE AND BEQUEATH the whole of my estate as above described unto my trustee UPON TRUST: -

(i)   To pay thereout all my just debts, funeral, monumental and testamentary expenses, and all duties in respect of the whole of my dutiable estate;

(ii)  To set aside $100,000 from the sale of the Property and to:

A.  To give $40,000 to Jee Young Min as supporting money for missionary work;

B.  To pay back the interest on the Heartland Bank loan with $30,000; and

C.  To use the remaining funds from the $100,000 that was set aside from the sale of the Property for my funeral expenses.

(c)  To give $30,000 to New Song Church;

(d)   To pay and divide the residue of my estate unto and amongst such of them my daughters JEE YOUNG MIN AND JEE HOON MIN as shall survive me and attain the age of twenty years and if more than one in equal shares and proportions absolutely PROVIDED HOWEVER that if any such child or children predecease me or die before attaining a vested interest hereunder leaving a child or children who

survive me or are born after my death and who attain the age of twenty years then such child or children shall take and if more than one in equal shares the share which his/her or their parent would have taken had he or she survived me and attained a vested interest hereunder.

Gendall J

Solicitors: