Estate of Kronfeld

[2013] NZHC 1810

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2543 [2013] NZHC 1810

UNDER  Section 14 of the Wills Act 2007

IN THE MATTER OF       the Estate of GRANT KRONFELD (deceased)

AND

IN THE MATTER OF       an application by CLAIRE KRONFELD and CHERIE KRONFELD as to the validity of a Will

Hearing:                   (On the papers)

Counsel:                  WD Woodd for Applicants

Judgment:                18 July 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 18 July 2013 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Boyle Mathieson (Auckland) for Applicants

Estate of KRONFELD [2013] NZHC 1810 [18 July 2013]

Introduction

[1]      By application dated 14 May 2013, the Court is asked to make an order declaring  documents  to  be  the  valid  will  of  Grant  Kronfeld,  who  died  on

13 September 2012.

[2]      The applicants seek orders:

(a)      That the four documents contained in an envelope marked “GKs Will” be declared the valid will of Grant Kronfeld pursuant to s 14 of the Wills Act 2007 (“the Act”);

(b)That the dispositions made to the witnesses of two of the documents, Cherie Kronfeld and Boyd Douglas Thwaites, not be voided; and

(c)      That  the  applicants,   Cherie  Kronfeld  and   Claire  Kronfeld,  be appointed as joint executors.

Background

[3]      On 13 September 2012, Mr Kronfeld died of cancer leaving no formal will. He  was  cremated  on  17 September  2012.    The  next  day,  Mrs Cherie  Kronfeld, Mr Kronfeld’s sister, located an envelope marked “GKs Will” next to Mr Kronfeld’s computer. The relevant contents of the envelope are four pages:

(a)      A typed letter signed by Mr Kronfeld, expressing his wishes as to what should be done with his life insurance money as well as what he would like done with his possessions(“the Estate letter”).

(b)A  page  of  typewritten  paper  attached  to  the  Estate  letter  with Mr Kronfeld’s    handwritten    adjustments.       It    lists    monetary distributions from his estate (“Money note”).

(c)      A typed  note  titled  “Funeral”  that  explains  Mr Kronfeld’s  funeral wishes and what should happen to his body (“Funeral note”).

(d)A  typed  letter  to  ‘Cicibon’  that  expands  on  his  wishes  for  the insurance money (“the Cicibon letter”).1    It contains handwritten additions.

[4]      On  2  March  2012,  Mrs  Cherie  Kronfeld  had  visited  Mr Kronfeld  at  his residence.  Also at his property was Mr Kronfeld’s long time friend, Boyd Thwaites. While at the property, Mr Kronfeld presented Mr Thwaites and Mrs Cherie Kronfeld with the Estate letter and the Money note, and asked them both to sign and date the documents.  Both documents were also signed by Mr Kronfeld, although it is unclear whether Mrs Cherie Kronfeld and Mr Thwaites witnessed him signing them.

[5]      The Funeral note and the Cicibon letter are undated and unsigned.   The Money note and the Cicibon letter are typed but contain handwritten alterations.  It is unclear whether the changes to the Money note existed at the time  Mrs Cherie Kronfeld and Mr Thwaites signed it.

[6]      Collectively,   the   documents   contain   specific   distributions   as   well   as

Mr Kronfeld’s wishes for the residue of his estate.

[7]      The estate has cash assets of approximately $330,000, excluding the value of any of Mr Kronfeld’s possessions and chattels.

[8]      If the documents are not declared to be a valid will Mr Kronfeld will have died intestate, and his estate will vest in Mrs Claire Kronfeld, his mother, pursuant to s 77 of the Administration Act 1969.  Mrs Claire Kronfeld is one of the applicants. In her affidavit sworn on 15 April 2013, she deposes to her knowledge that on an intestacy she would receive all of her son’s estate.  Mrs Kronfeld does not want that. She  wants  the  documents  in  the  envelope  to  be  recognised  as  a  will  and  for Mrs Cherie  Kronfeld  and  Mr Thwaites  to  get  their  bequests  as  set  out  therein.

Because of this the without notice application is appropriate.2

Requirements of a will

[9]      I accept that the documents do not meet the formal requirements of a will as stipulated by s 11 of the Act.  None of the documents have been properly witnessed.

[10]     Section 14 of the Act provides an avenue for a document to be validated as a will by the High Court:

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.

[11]   There is no prescribed procedure or standard of proof in determining applications  under  s 14,  although  I  must  be  satisfied  that  the  following  four requirements are met:3

(a)       There must be a document; (b)  It must appear to be a will;

(c)      It must not comply with s 11 of the Act;

(d)      The  Court  must  be  satisfied  that  the  document  expresses  the

deceased’s testamentary intentions.

3      Nicky Richardson Nevill’s Law of Trusts, Wills and Administration (11th ed, LexisNexis, 2013) at 359.

[12]     The relevant contents of the envelope marked “GK’s Will” meet the first

three of these requirements.

[13]     As to the consideration of testamentary intention, I adopt what MacKenzie J

said in Re Zhu:4

The test whether the Court is “satisfied” does not import any particular standard or burden of proof.  The task of the Court is to evaluate the relevant circumstances and reach a conclusion. I expressed some views on the proper approach in this context in Re Hickford.5     Because of the importance of a declaration that a will be declared valid, there must be cogent evidence to support any finding which is relied upon in determining that the Court is satisfied on the s 14(2) test.

[14]     It is clear that Mr Kronfeld wished to provide financially for those he loved, and  to  distribute  his  property  and  other  belongings.  There  is  evidence  that Mr Kronfeld’s intention changed from the time he typed the documents.  This has led to some inconsistency between the documents.   For example, in the Funeral note Mr Kronfeld stated “[i]f monies are available I want ingots of gold to be purchased and given to each person who comes to my funeral...”  However, in the Money note, the original typed version had $100,000 set aside for gold, but that was, at some unknown point, crossed out.  The affidavit of Mr Thwaites states that he had had a conversation with Mr Kronfeld regarding the money for gold and had advised him that it was not a good idea, so that probably explains the crossing out.

[15]     While the will may lack clarity to an outsider due to the inconsistencies, the documents,   with   their   handwritten   amendments,   show   finality   of   intention. Mr Kronfeld was clear as to what he wanted to dispose, and how he wanted it disposed.  Crucially, he placed the documents in an envelope marked “GK’s Will”. This demonstrates Mr Kronfeld’s intention that they be his testamentary instrument.

[16]     I intend to validate the documents as the will of Mr Kronfeld.  So far as the Funeral note and the typed portion of the Cicibon letter are concerned, I make the point that the wishes and requests appearing there are not binding on the executors.

Mr Kronfeld clearly did not intend to create legal obligations, and his wishes or requests can be binding only in a moral sense.

[17]     Mrs Cherie Kronfeld and Mr Thwaites have been impliedly appointed as executors.  Mr Thwaites does not wish to have that office.

[18]     Mrs Cherie Kronfeld and Mr Thwaites could be considered witnesses to the will under the Act.  Section 13 of the Act precludes the disposition of property in a will to witnesses.6   However, as Mrs Claire Kronfeld, who would benefit solely from the avoidance of the dispositions, has consented to the distribution of his estate in accordance  with  the  contents  of  “GK’s Will”,  and  has  capacity to  consent;  the preclusion does not apply.7

[19]     It would be appropriate for Mrs Claire Kronfeld to be an executor.   She applies for the office.

Decision

[20]     I make the following orders:

(a)      The Estate letter, the Money note, the Funeral note and the Cicibon letter  are validated as the last will of Grant Kronfeld, pursuant to s 14 of the Wills Act 2007.

(b)      Probate  is  granted  to  the  applicants,  Mrs  Cherie  Kronfeld  and

Mrs Claire Kronfeld.

(c)       The residue of the estate is to vest in Mrs Claire Kronfeld.

(d)With respect to costs, I direct that the costs of counsel be met from the residue of the estate.

Brewer J

6      Wills Act 2007, s 13(1)(a).