Hemopo v Public Trust

[2017] NZHC 1735

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-434 [2017] NZHC 1735

IN THE ESTATE	of GRAEME JAMES MEEK (Deceased)
BETWEEN	KIRSTEN LEE HEMOPO Applicant
AND	THE PUBLIC TRUST Respondent

Hearing:

24 July 2017

Appearances:

S Clay for Applicant

G Trainor - Litigation Guardian for Joshua Darren Askew, Reuban Ian Askew and Millie Grace Askew

No appearance for Respondent but with reservation of rights

Judgment:

25 July 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1]      The applicant, Kirsten Hemopo (“Kirsten”), applies for an order declaring that a “document” be declared valid as part of the last Will of Graeme James Meek (“Mr Meek”) dated 22 May 2002. The application is made pursuant to s 14 of the Wills Act 2007 (“the Act”).

[2]      The  “document”  is  an  envelope  with  Mr  Meek’s  handwriting,  which expresses an intent to change the provisions of his Will.  The effect of validation is that the last Will of Mr Meek dated 22 May 2002 would have clause 6.1 deleted and

substituted with “as to a 50% share to my daughter Kirsten Lee Hemopo”.

HEMOPO v THE PUBLIC TRUST [2017] NZHC 1735 [25 July 2017]

[3]     The late Mr Meek had two children, being Kirsten and Bradley Meek (“Bradley”).   Kirsten has six children, four being the grandchildren of the late Mr Meek.    Three  of  these  children  are  represented  by Mr Trainor  as  Litigation Guardian, and a fourth, Caleb James Askew, is of age and consents to the orders sought.  Kirsten has two other children, now aged five years and three years, who are not the natural grandchildren of Mr Meek.

Background to the application

[4]      Mr Meek died at Nelson on 1 December 2016.  By his Will of 22 May 2002, The  Public Trust  was  appointed  executor  and  trustee,  and  his  son,  Bradley,  an Advisory Trustee.

[5]      By the Will, the residuary estate was to be divided into two equal parts.  One part was to be divided equally between four of Kirsten’s six children (Mr Meek’s grandchildren), and the other half to Bradley.  She explains that she was not provided for in the Will because she and her father fell out prior to his making his Will in

2002, which is confirmed in a letter written by her father also on 22 May 2002, which said why he did not provide for Kirsten, but for her children.

[6]      That letter was addressed “To Whom It May Concern” and explained that Kirsten would not directly benefit from the estate because of her “actions before and particularly after the dissolution of my marriage to her mother”.  Mr Meek refers to her attitude to him, and to lack of access to his grandchildren, and vice versa. Mr Meek wanted “Kirsten’s children” to benefit from the estate, and Bradley would make decisions regarding disbursements of funds for their assistance prior to their obtaining the age of 20 years.

[7]      However, when Kirsten and Bradley went to Nelson on 1 December 2016 to tidy up Mr Meek’s affairs, they found an envelope which contained a copy of his Will  dated  22  May  2002,  and  Mr  Meek  had  written  on  the  outside  “make appointment in Nelson or change on line to 50% each to Kirsten and Brad.  Revoke letter dated May 22, 2002” – signed “GJ Meek” which is shown in the Schedule to this  Judgment.    The  Public  Trustee  was  applying  for  Probate  of  the  Will  of

22 May 2002 when this issue was raised with it and properly delayed the application.

[8]      Kirsten  deposes  that  the  document  indicates  her  father’s  testamentary intention was to provide for the residuary estate to be shared equally between her and Bradley. The net estate is something in excess of $200,000.

[9]      Bradley confirms Kirsten’s position, and says that he always understood that his father’s estate would be shared equally between him and Kirsten.   He adds that his  father  “had  never  indicated  any other  plan  than  this  to  me”.    He  knew  of challenges in the relationship between father and daughter, but then for a decade prior to his death, if not longer, he knew that his sister had the same level of contact with her father as he had.

[10]     It is clear Mr Meek had also contacted The Public Trust after making his

2002 Will to discuss his intent to change the Will.

[11]     Mr  Trainor  as  Litigation  Guardian,  discussed  Kirsten’s  intent  that  there should there be validation of the document and gifting to assist the grandchildren’s education.  He observed the children during his interview of Kirsten and noted their maturity and their understanding of the application.   The children were unanimous that they considered it appropriate that the order of validation be made.  They also expressed the concern that their half siblings should benefit indirectly from the estate.  It was anticipated that all the children would benefit from the provisions of Kirsten’s proposed Will, and the estate, as discretionary beneficiaries of a proposed family trust.

Discussion

[12]     Section 14(1) of the Wills Ac 2007 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’s person’s testamentary intentions.

[13]     Section 8 of the Act provides:

8        Meaning of Will

(1) Will means a document that –

(a)      is made by a natural person; and

(b)      does any or all of the following:

(i)       disposes of property to which the person is entitled when he or she dies; or

(ii)      disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or

(iii)     appoints a testamentary guardian.

[14]     Mr Clay’s submission for Kirsten is that the document disposes of property pursuant to s 8(1)(b)(i) of the Act and appears to be a Will, or part of a Will, pursuant to s 14(1)(a) of the Act.  The document clearly does not comply with s 11 of the Act as it was not witnessed.  It came into existence “in or out of New Zealand” pursuant to s 14(1)(c).

[15]     Section 14(2) of the Act provides that the Court may make an order declaring a document valid if it is satisfied the document expresses the deceased’s person’s testamentary intentions.  I have no doubt on the evidence that that is the case, and that Mr Meek intended that his two children would share equally in his estate.  He also intended to put aside, or in his words “revoke” his reasons for his earlier exclusion of Kirsten.  I find that the statutory requirements are fulfilled, and that the document was intended to effect a disposition of the deceased’s residuary estate equally between his two children.   Events which led him to think otherwise as of

22 May 2002 had long gone by, and the relationship between him and his daughter had been restored.   There is overwhelming and compelling evidence that the document sought to be validated was the deceased’s intended disposition.

Disposition

[16]     The “document”, being that attached  as a  Schedule to this Judgment, is validated as part of Mr Meek’s Will of 22 May 2002, which is varied by deleting clause 6.1 and substituting the following:   “As to a 50% share to my daughter Kirsten Lee Hemopo”.

[17]     No  order  for  costs  should  be  required  as  all  costs  associated  with  this application should come from the estate, but in case an order is required, I reserve leave for an application.

………………………………………….

Nicholas Davidson J

Solicitors:

Lane Neave, Christchurch

Maclean & Associates, Christchurch

Public Trust, Hamilton

SCHEDULE