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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 676
Decision Date: 4 April 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Gendall was presented with two applications regarding the estate of Moonja Kim, who passed away in April 2020. The applications sought to validate certain documents as a codicil to her will and to correct the will to reflect her true intentions. The first application aimed to declare the validity of the handwritten documents in Korean, a Korean envelope, and an English envelope as a codicil to the will. The second application requested that the will be corrected to reflect the intentions outlined in these documents. The legal issues revolved around whether these documents, which did not comply with the formalities required by the Wills Act 2007, could be validated as a codicil and whether the will could be corrected to align with the Deceased's intentions.

Justice Gendall held that the Korean documents, despite not being signed or witnessed in accordance with the Act, could be validated as a codicil under section 14 of the Wills Act 2007, as they expressed the Deceased's testamentary intentions. The court found that the documents provided for the disposition of the major part of the estate and that the affected parties consented to their validation. Furthermore, the court decided that the will should be corrected under section 31 of the Act to reflect the Deceased's intentions as outlined in the Korean documents and envelopes. The court ordered that the will be amended to include specific provisions regarding the disposition of funds from the sale of the property, a payment to a church, and the division of the residue of the estate among the Deceased's daughters.

Justice Gendall issued orders validating the Korean documents and envelopes as a codicil to the will and correcting the will to carry out the Deceased's intentions. The executor named in the will was replaced with Shaun Michael McGivern, and specific provisions were included for the distribution of funds and property as per the Deceased's wishes.

Orders