Kato v Matthes - [2018] NZHC 2551

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2592

[2018] NZHC 2551

Under the Wills Act 2007, and the Administration Act 1969, and the High Court Rules 2016

IN THE MATTER OF

an application under s 11 and s 14 of the Wills Act 2007 for the testamentary document to be declared a valid will, and Rule 27.34(3) of the High Court rules 2016

for the Recall of Letters of Administration on Intestacy and Section 19 of the
Administration Act 1969 for the appointment of the Applicant as Executor

AND IN THE MATTER

Of the Estate of PEPE PASETARIA MATTHES

BETWEEN

TIPI TIPUTA KATO

Plaintiff

AND

PEPE MATTHES

First Defendant

AND

HAZEL MATTHES

Second Defendant

AND

THE PRESIDENT AND CHIEF FINANCIAL OFFICER, OF THE NORTH NEW ZEALAND CONFERENCE OF THE SEVENTH DAY ADVENTIST CHURCH

Third Defendant

Hearing: 20 September 2018

Appearances:

J K H Stirling for the Plaintiff

A E McDonald and S C S Rutledge for First and Second Defendants

Judgment:

28 September 2018

TIPI TIPUTA KATO v PEPE MATTHES [2018] NZHC 2551 [28 September 2018]

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] Pepe Pasetaria Matthes (“Ms Matthes”) died on 30 January 2017 without leaving a valid Will. Her husband, Kurt, predeceased her.

[2] Ms Matthes’ estate is made up of some $180,000.00 cash and a property at 26 Miller Road, Mangere (“the Miller Road property”), but this may not represent all of her assets, as some $300,000.00 was withdrawn from her bank account two weeks before she died. That withdrawal, and the whereabouts of the money withdrawn, are under enquiry. Recovery of the $300,000.00 by the Estate does not look at all promising, as will be discussed.

[3] No Will was located and Letters of Administration were granted to two of Ms Matthes’ three adopted children, Pepe Matthes (“Pepe”) and Hazel Matthes (“Hazel”). Ms Matthes has an adopted son, Taumau Matthes (“Taumau”) and an informally adopted, whangai daughter, Faamau Kato Matthes (“Buttons”).

[4] Administration of Ms Matthes’ estate has already proved problematic, quite apart from the issue with which this judgment is concerned, namely the application by Ms Matthes’ brother, Tipi Taputa Kato, (“Tipi”) for orders to set aside the administration grant to Pepe and Hazel, and to declare a “Personal Profile Document” (“PPD”) as the valid Will of Ms Matthes, and to appoint him the executor of her estate.

The administrator

[5] As matters developed at trial, the parties agreed that whether or not the PPD is declared the valid Will of Ms Matthes, Mr Peter Andrew Oliver (“Mr Oliver”), a solicitor, should be appointed to administer the estate. He consents to that appointment. I consider this is a sensible step by the parties, whereby a solicitor of standing, experienced in these matters, will administer the estate and address what will likely be difficult issues in the administration. Potential…

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.

Continue reading Kato v Matthes

Details

AGLC: Kato v Matthes [2018] NZHC 2551
Case: [2018] NZHC 2551
Decision Date: 28 September 2018

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether a "Personal Profile Document" (PPD) should be considered the valid will of Pepe Pasetaria Matthes, who passed away without leaving a formal will. The application was brought by Tipi Taputa Kato, Ms Matthes' brother, who sought to have the PPD declared as her valid will and to be appointed as the executor of her estate. The PPD was created by Pastor Ian Royce of the Seventh-day Adventist Church, who explained that it was intended as an interim measure until a formal will could be executed. The document outlined Ms Matthes' intentions for her estate, including bequests to the Seventh-day Adventist Church and provisions for the education of her nieces and nephews. However, the PPD did not comply with the statutory requirements for a valid will, as it was witnessed by only one person and lacked the necessary statements regarding the witnessing process.

The court considered the evidence presented, including the testimony of Pastor Royce, who stated that the PPD was prepared in accordance with the Church's standard operating procedure. However, the court found that the PPD did not reflect Ms Matthes' testamentary intent at the time of her death. The significant gap between the creation of the PPD and her death, along with her failure to sign the formal will sent to her, led the court to doubt that the PPD remained her testamentary intent.

The court concluded that the grant of Letters of Administration should stand, but in favor of Peter Andrew Oliver, a solicitor appointed to administer the estate. The court declined to validate the PPD as Ms Matthes' will and reserved the question of costs, considering it proper that Tipi's application for validation was made. The court ordered reasonable costs to be paid to Tipi out of the estate.

Orders