Estate of Larking

[2023] NZHC 3611

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-784

[2023] NZHC 3611

UNDER	section 14 of the Wills Act 2007
IN THE MATTER OF	the Estate of Denis Clyno Larking

On the Papers
Counsel:	H Boud for the Applicant
Judgment:	11 December 2023

JUDGMENT OF GWYN J

Introduction

[1]    This is an originating application without notice by Kim Clyno Luke Larking under s 14 of the Wills Act 2007 to declare a will made by Denis Clyno Larking on  6 January 2022 as valid. Kim Larking is one of Denis Larking’s children, a beneficiary under and executor of the will sought to be validated.

How the document came to be

[2]    Denis Larking executed his first will on 17 September 1976 (first will). At this time, not all of his children had been born. As regards the distribution of his estate to his children at the time, the first will provided for them to receive equal shares. It said:

(b)On the death of my wife to divide my said residuary estate as follows:

(i)If our youngest child has not reached the age of majority to hold my said estate UPON TRUST and pay the net income from my residuary estate as follows:

RE THE ESTATE OF LARKING [2023] NZHC 3611 [11 December 2023]

(a)One fifth to THAMES BRETHREN MISSION

FUND

(b)The balance equally among all of my children share and share alike

…

(ii)On my youngest child reaching the age of majority or sooner dying then my said estate is to be divided as follows:

(a)One   fifth   to   THAMES   BRETHREN  MISSION

FUND

(b)The balance equally among my children share and share alike

[3]    On 29 August  2017,  Denis  Larking  executed  a  new  will  (2017  will).  Mr Larking altered the 2017 will by handwritten amendments on 8 April 2021. The 2017 will provided for the distribution of his estate to his children in equal shares. It said:

My workshop and all contents shall be auctioned off and equally divided between children.

…

If we both were to die then the trustees are to see that all the estate, which is shares in Zenith Clyne Corporation and shortland place is divided into four equal shares. … ONE SHARE GOES TO EACH OF MY CHILDREN,

Jennifer Wendy Anne Johnson, Shane Rodney Larking, Cindy Joy Christina Gray, Kim Clyno Luke Larking. … If any of my children contest my authority about the will and dispute about their share, their share is to be forfeited. And will be equally distributed among my other children.

[4]    On 28 December 2021, Denis Larking signed a printed copy of an email purporting to revoke all of his former wills and replace them with that document (email will). Denis Larking’s son and daughter-in-law, Shane Rodney Larking and Andreah Larking, had prepared the email will. The email will appears to have been witnessed by two independent witnesses. The email will provided for the distribution of Denis Larking’s estate to his children in different shares. It said:

If Denis Clyno Larking was to die before his wife Adelaide Josephine Larking, I wish for Shane Rodney Larking to have 55% of the controlling power of Zenith Clyne corporation.

The rest of the percentage of Zenith Clyne Corporation ltd to go to the other three children

Kim to get 5% more than the girls Kim18.4 shares

Cindy 13.3 shares

Jenny 13.5 shares

…

Shortland place

dennis owns 55% and his wife owns 45% Value of the building.

No shares.

I want the same percentages to Apply to this building the same as above the Zenith Clyne corporation ltd

[5]    In January 2022, Kim Larking explained the email will to Denis Larking. Denis Larking said this did not reflect his wishes because he wanted his assets to be distributed to his children in equal shares. Kim Larking helped Denis Larking to prepare a new will on that basis.

[6]    On 6 January 2022, Kim Larking took the latest will to Denis Larking in the hospital. A nurse, Naera Komene, witnessed Denis Larking sign the will. Kim Larking’s partner and sister, Shereena Noelle Sumeran and Cindy Joy Christina Gray attended by contemporaneous phone call. To the formal witness and the others present, Denis Larking said he wanted his estate to be distributed in equal shares to his children and the document he signed reflected this wish. It said:

8. I direct my Executor to divide the residue of my estate into one hundred

(100)equal shares which will be distributed as follows (‘Share Allocations’):

a.Jenny  Johnson  of  Thames,  New  Zealand,  will  receive  25 shares of my residuary estate;

b.Shane  Larking  of  Thames,  New  Zealand,  will  receive  25 shares of my residuary estate;

c.Cindy Gray of Thames, New Zealand, will receive 25 shares of my residuary estate; and

d.Kim Larking of Auckland, New Zealand, will receive 25 shares of my residuary estate.

…

13.I wish for all children to have equal shares and rights …

14.All old and previous financial arrangements between family are closed and inconsequential to the equal division of the Will amongst the four children. No favour to any one child is to be provided.

…

No Contest Provision

16. If any beneficiary under this Will contests in any court any of the provisions of this Will, then each and all such persons shall not be entitled to any devises, legacies, bequests, or benefits under this Will or any codicil hereto, and such interests or share in my estate shall be disposed of as if that contesting beneficiary has not survived me.

[7]Denis Larking died on or about 7 January 2022.1

[8]    Kim Larking deposes that he believes the document dated 6 January 2022 is Denis Larking’s last will. He applies for its validation.

Relevant law

[9]    When a will-maker leaves a final will at the end of their life, it is not always possible to meet the requirements for a valid will set out in s 11 of the Wills Act. Recognising this practical reality, s 14 of the Wills Act provides an avenue for the High Court to order wills valid irrespective of the technicalities of s 11. Section 14 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—

1      Kim Larking’s affidavit dated 21 November 2023 says “7 January 2021” but it is clear from the context that the year includes a typo.

(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 6 defines “document” broadly, as “any material on which there is writing”. Although not defined in the Wills Act, “writing” is defined in s 13 of the Legislation Act 2019 as “representing or reproducing words, figures, or symbols in a visible and tangible form or medium (for example, in print)”.

Analysis

Preliminary matters

[11]   To address the preliminary matters, the 6 January 2022 will is a “document”2 because it comprises “writing” as defined in the Legislation Act on material.

Gateway conditions

[12]   I therefore consider, first, the three “gateway” considerations3 to the exercise of the Court’s power to validate wills under s 14. I set out my reasoning for each consideration in turn below:

(a)The document appears to be a will: I am satisfied the document appears to be a will. It contains the standard information generally contained in wills and is described by Denis Larking as his final will.

(b)The document does not comply with s 11: This is satisfied because there was only one witness present when Denis Larking signed the document, Ms Komene. Section 11(4) requires at least two witnesses.

2      Wills Act 2007, s 14(1).

3      See for example Gebert v Clay [2023] NZHC 1726 at [36].

(c)The document came into existence in or out of New Zealand: This is satisfied because the document came into  existence  in  Thames,  New Zealand.

[13]   The will having fulfilled the gateway considerations, I go on to consider whether the will expresses Denis Larking’s testamentary intentions.

Does the document express the deceased’s testamentary intentions?

[14]   The critical question distilled from previous case law is whether the document expresses the deceased person’s testamentary intentions.4 In Public Trust v Forster, the High Court recently said:5

In undertaking the enquiry under s 14 the Court is required to focus on substance and intention rather than form. This is necessary to ensure that a person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities.

[15]   The Court of Appeal said in Robinson v Beaman added “the important qualification” that:6

… the deceased’s testamentary intentions must be clear. Section 14 was not intended to validate a document as a will when doubt attaches to whether the document reflects the deceased’s testamentary intentions or similarly, when doubt attaches to whether the deceased’s testamentary intentions were settled.

[16]   Denis Larking’s last valid will, the 28 December 2021 will (the email will), is not the subject of this application and I do not have to rule on it. However, I note that the email will is the only will which does not provide for Denis Larking’s estate to be distributed to his children equally. For this reason, and having taken account of the broader circumstances, including the preparation of the email will (by Shane and his wife) and nature (its terms being inconsistent with a longstanding and consistently- expressed wish of the will-maker), I am cautious to avoid placing too much weight on this will.

4      See Gebert v Clay, above n 3, at [38]–[41].

5      Public Trust v Forster [2023] NZHC 2339 at [22], quoting McKay v Society of St Vincent De Paul New Zealand [2022] NZHC 846 (footnotes omitted).

6      Robinson v Beaman (CA651/2022) [2023] NZCA 468.

[17]All other wills that Denis Larking left throughout his life — as early as 1976

— are consistent in their record of his wish for his estate to be distributed to his children in equal shares. In fact, Denis Larking was so insistent that his children receive equal distributions of his estate that he included a no contest provision in his 29 August 2017 will.7 The will which is the subject of this application is entirely consistent with that testamentary intention and there is nothing else before me to suggest that Denis Larking had changed his mind about the shares to be left for his children.

[18]   I am satisfied on the balance of probabilities that the 6 January 2022 will accurately reflects Denis Larking’s testamentary intentions. Having met all other s 14 requirements for validation, I will order accordingly.

Outcome

[19]   I declare the document dated 6 January 2022 to be Denis Clyno Larking’s final valid will.

Gwyn J

Solicitors:
Caring Estates Limited, Hamilton

7 See [6] above.