Hunter
[2024] NZHC 627
•21 March 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2023-441-000070
[2024] NZHC 627
IN THE MATTER OF The Wills Act 2007 AND
The Trusts Act 2019
AND THE ESTATE OF
ROGER PAUL HUNTER
AND
REBECCA JANE HUNTER
Applicant
Hearing: (On the papers) Counsel:
S L Robertson KC for Applicant
M C Hamilton – Counsel for children
Judgment:
21 March 2024
Reissued:
9 April 2024 (to anonymise the children’s names in their best interests)
JUDGMENT OF LA HOOD J
Introduction
[1] On 7 December 2023, the applicant, Rebecca Hunter, made without notice applications for the Court orders relating to the estate of her late husband, Mr Roger Hunter:
(a)An order declaring the document exhibited to the affidavit of Ian Walter Hunter (the draft Will) to be the valid will of Mr Hunter.
HUNTER v HUNTER [2024] NZHC 627 [21 March 2024]
(b)An order approving variation of the testamentary trust on behalf of the children of Mr Hunter, who are minors.
(c)Leave to apply without notice for the orders validating the draft Will and approving variation of testamentary trust.
[2] In the event the draft Will is validated, the applicant also seeks an order granting the applicant probate over the draft Will.
[3] Affidavits of Rebecca Jane Hunter, Heidi Marja Oliver and Ian Walter Hunter were filed in support of the application.
[4] By minute dated 13 February 2024, I appointed Ms Maria Hamilton as counsel to represent the children and report back to the Court on the condition that she was not to speak directly to the children without the express permission of their mother, Rebecca Hunter, or leave of the Court. I requested Ms Hamilton to provide her report by 8 March 2024. I have now received her memorandum dated 5 March 2024. I address the contents of the memorandum below.
Background
[5] Mr Hunter died suddenly on 22 October 2023, aged 43 years. Mr Hunter was survived by his three children:
(a)A, aged 13 years;
(b)B, aged 10 years; and
(c)C, aged 8 years.
[6] At the time of his death Mr and Mrs Hunter were in the process of finalising draft Wills with their solicitors, Gifford Devine. Ms Oliver, a partner at Gifford Devine, has provided affidavit evidence about the drafting of the Wills. Her evidence supported by the emails, is that Wills had been drafted over a period of three years
10 months.1 The only point that remained outstanding was for confirmation that their accountant was willing to be a back-up executor.
[7] Mr Hunter prioritised work, working long hours and very hard. The evidence establishes that Mr Hunter had finalised his draft Will but had not signed it because he did not see it as a priority, compared to work and family life.
[8] No prior Wills or Will notes have been located. Mrs Hunter has searched Mr Hunter’s personal records and the records of Hunter AG Services Ltd, the company they both owned and operated. Gifford Devine has made enquiries of DAC Legal, the other legal practice in the Hawke’s Bay area that might have held a Will for Mr Hunter, and advertised nationally in the New Zealand Law Society’s LawPoints.
[9] Under the draft Will, dated 2022, Mrs Hunter is appointed as executor and trustee of the Will, and Mr Hunter’s estate is disposed of as follows:
6.MY ESTATE
6.1My trustee shall [hold] the rest of my estate (“my residuary estate”) on trust to pay my debts, all gravework, funeral and estate administration costs in connection with my estate, and all taxes payable on my estate.
6.2My trustee will transfer what then remans of my residuary estate to REBECCA provided she survive me by 14 days.
...
[10]Under intestacy, Mr Hunter’s estate would be divided:2
(a)Personal chattels to Mrs Hunter absolutely;
(b)The first $155,000 of the residue to Mrs Hunter;
(c)One-third of the balance of the residue to Mrs Hunter; and
1 From July 2019 to May 2023.
2 Administration Act 1969, s 77.
(d)Two-thirds of the balance of the residue on statutory trusts for Mr Hunter’s children.
[11]The residue of Mr Hunter’s estate has an approximate value of $500,000.
The applicable principles under s 14 of the Wills Act 2007
[12] Mrs Hunter seeks an order validating the draft Will under s 14 of the Wills Act 2007 which 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—
(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.
[13] The remedial nature of the discretion to validate a will under s 14 was emphasised by MacKenzie J:3
A further important principle to be taken into account is that the new powers conferred by the Act to validate and correct wills are clearly intended by Parliament to be remedial. The procedures to be adopted ought to reflect that remedial principle. Undue expense and formality in the procedures should not be imposed. The procedures should, consistent with the overriding principle that all parties who may be affected must be given notice, be such that applications are dealt with promptly, inexpensively and efficiently.
3 Re Zhu (Deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [3].
[14] The overriding principle that parties who may be affected by the application are given notice is considered below.
The applicant’s position
[15] The applicant submits that the requirements of s 14(1) are met in this case because:
(a)Apart from not being executed, the draft Will appears to be a will.
(b)The draft Will has not been signed at all and therefore does not comply with s 11 of the Wills Act 2007.
(c)The draft Will came into existence in New Zealand, as explained in Ms Oliver’s affidavit.
[16] The applicant submits the Court can also be satisfied that the draft Will represents Mr Hunter’s testamentary intentions. This is evident from:
(a)Mrs Hunter’s evidence of conversations she had with Mr Hunter.
(b)Mr Hunter’s father’s evidence of the consistency of the draft Will with his observation of the family and his experience of Mr Hunter involving Mrs Hunter in all Mr Hunter did for their mutual benefit.
(c)The consistent nature of the will instructions to Gifford Devine over the preparation of the draft Will.
[17] In some cases, the Court will consider whether a delay in executing a draft will might indicate that the will-maker has changed his mind. The applicant submits that, in this case, the length of time over which the draft Will was prepared, the consistency of the instructions, the young age of Mr Hunter and the unexpected nature of his passing, and the priority that he placed on work explain the delay in attending to formal execution of the draft Will.
The views of the children
[18] If the draft Will is not validated, Mr Hunter’s estate will be administered according to the applicable intestacy rules. This means the only other parties that have an interest in the application, and therefore entitled to notice, are Mr Hunter’s children who are all minors.
[19] Both counsel for the applicant and counsel for the child referred me to s 6 of the Care of Children Act 2004 (COCA), which provides that in proceedings involving the administration of property belonging to, or held in trust for, a child, the child must be given reasonable opportunities to express their views on matters that affect them in COCA proceedings.4 I note that s 6 gives effect to art 12 of the UN Convention on the Rights of the Child in the context of proceedings under the COCA.5 This is not a proceeding under the COCA. Even in that context, in determining what opportunities ought reasonably to be provided, the welfare and best interests of the child will be a paramount consideration.6 What amounts to a reasonable opportunity to express views will turn on the significance of the decision for the child, the timeframe within which the decision is to be made, the age and maturity of the child and all the other circumstances.7
Report of counsel for the children
[20] Ms Hamilton’s memorandum reporting to the Court sets out the children’s views as follows:
8.Counsel met with A, B and C at their home, initially in Rebecca’s presence. C was given a reasonable opportunity to express views but chose not to express any views and left with Rebecca. A and B, privately with counsel, chose to talk further about the matters before the Court.
9.A and B understood that decisions needed to be made about the property that Dad owned and who was going to own that property and be responsible for it. Counsel explained that it would help the person making decisions if A and B’s views were known because decisions affected the whole family, including them. It was clear that we were mainly talking about Dad’s business.
4 Newton v Family Court [2022] NZCA 207, [2022] 3 NZLR 846 at [227].
5 At [225].
6 At [227].
7 At [230].
10.A and B were very clear that they thought Mum was the best person to own the property and be responsible for the family’s decisions about property and money. Both B and A thought that their mum made decisions that were good for the whole family – B adding that she herself should also be involved in decisions affecting her.
...
12.A and B presented as very comfortable and forthcoming with their views. They were a delight to meet and must be a source of considerable pride for their family. C was very reluctant to enter into discussion as is her right. She quite appropriately sought reassurance and comfort from her mum.
13.A and B’s views are that their father’s estate should fall to their mum, consistent with validating the draft Will.
[21] Ms Hamilton for the children submits that the requirements of s 14(1) of the Wills Act are met. She submits that the Act nor the cases invite the Court to focus on the interests of those who may benefit from, or suffer detriment from, validating the Will, and thus, the financial detriment suffered by the children should the Will be validated, may not weigh heavily. Even if the Court considers such financial detriment (caused by the children foregoing entitlements upon intestacy) that detriment is counterbalanced by the prospect of their future inheritance through Mrs Hunter, streamlining property ownership, the children’s views as stated above, and respecting Mr Hunter’s testamentary intentions.
Decision under s 14 of the Wills Act
[22] I am satisfied on the balance of probabilities that the draft Will expresses Mr Hunter’s testamentary intentions. I accept the submission that this is evident from Mrs Hunter’s evidence of conversations she had with Mr Hunter, Mr Hunter’s father’s evidence and the consistency of the draft Will with his observation of the family and his experience of Mr Hunter involving Mrs Hunter in all Mr Hunter did for their mutual benefit, and the consistent nature of the Will instructions to Gifford Devine over the preparation of the Will. I also accept that the delay in executing the Will in this case is a reflection of factors other than any indication that Mr Hunter had changed his mind.8
8 See [7] above.
[23] I further accept Ms Hamilton’s submission that the fact of the unsigned draft Will is evidence that Mr Hunter did not wish his estate to be disposed of in accordance with intestacy.9
[24] I accept the submission that, in circumstances where Mr Hunter’s wishes were included in an unsigned draft Will, prepared over a lengthy period of time, that undoubtedly reflects his wishes, the detriment to those who would otherwise have benefitted from intestacy is of limited weight. However, even if this is wrong, I also accept the submission that in the particular circumstances of this case it would be appropriate to take a wide approach to benefits and detriments consistent with the approach taken when deciding whether to vary a trust under s 124 of the Trusts Act 2019. Although there will be financial detriment to the children by validating the draft Will due to the forgoing of their entitlements under the Administration Act, the benefits to them include: they are dependent family members who will benefit from the business their mother will inherit; the knowledge that their father’s testamentary intentions will be honoured; the reduction in stress on their mother and the streamlining of property ownership and administration for the family; and they are likely to ultimately inherit the estate through their mother.
Approving variation of testamentary trusts under s 124 of the Trusts Act 2019
[25] The application to validate the Will is accompanied by an application to vary the testamentary trusts that apply on intestacy under the Administration Act.
[26] The requirement to hold the estate subject to the statutory trusts in s 77 of the Administration Act applies when an administrator is appointed.10 My understanding of the position is that on validation of the Will, there will be no testamentary trusts under the Administration Act that require variation. I accept that this is a different situation than Amundson v Raos.11 In that case, a testamentary trust was created by the Will validation, and the parties, in agreement, sought the Court’s approval for a settlement on behalf of the beneficiaries who were minors, by way of a variation to
9 Amundson v Raos [2015] NZHC 2422, [2015] NZAR 1772 at [29]; and Re: Campbell [2014] NZHC 1632 at [18]..
10 Administration Act, ss 25(b).
11 Amundson v Raos, above n 9.
the testamentary trust.12 Given the order that the Will is to be validated has been made prior to appointment of an administrator, there are no testamentary trusts requiring variation.
Application for the grant of probate
[27] The applicant also seeks an order granting probate of the validated Will to the applicant as the executor named in the Will. I am not satisfied that the Court is in a position to grant probate on the basis that the applicant has not filed an affidavit meeting the requirements of r 27.4 and the appropriate form of the High Court Rules 2016, which require proof of death and an undertaking by the executor to faithfully execute the will of which probate is granted.13 The application for probate should be made to the probate unit of the High Court.
Conclusion
[28] I therefore make an order declaring the draft Will to be the valid Will of Roger Paul Hunter.
La Hood J
Solicitors:
Gifford Devine, Hastings for Applicant
12 At [52]–[53] invoking the Court’s power under s 64A of the Trustee Act 1956.
13 See for example, Swift v Rogers [2022] NZHC 2543 at [80]; Watt v Owston-Doyle [2015] NZHC 1292 at [15].
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