Kato v Matthes
[2018] NZHC 2551
•28 September 2018
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 ExecutorAND 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Road, Mangere (“the Miller Road property”), but this may not represent all of her assets, as some $300,000.00 was withdrawn from her bank account two weeks before she died. That withdrawal, and the whereabouts of the money withdrawn, are under enquiry.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 claims have been signalled against the estate under the Family Protection Act 1955 (“FPA”) and under the
Law Reform Testamentary Promises Act 1949, and there is already a dispute over possession of the Miller Road property. There is the prospect of a claim against the estate by a whanau member with the assistance of a litigation guardian, but any potential claims will need to be reassessed by those making or contemplating them on delivery of this judgment.
“Personal Profile Document”
[6] The application before the Court is to set aside the grant of Letters of Administration and admit to probate the PPD, a copy of which is the Schedule to this judgment.
[7] The document was created as explained in an affidavit sworn by Pastor Ian Royce, of the Australian Union Conference of the Seventh-day Adventist Church (“the Church”), and a Director of Trust Services for the Australian Union Conference of the Church.
[8] In 2015, the New Zealand Conference of the Church did not have a Director of Trust Services, so he came to New Zealand to take instructions for Wills, from about 100 people, and he used the PPD template. He does not recall meeting Ms Matthes, but says the PPD signed by her was prepared by him. He describes the ‘standard operating procedure’ whereby he would meet, (in this case) with Ms Matthes by herself, using a laptop with the PPD template on screen, and the document would be prepared on her instructions. He would have helped choose the words to convey her intent.
[9] He says he would have explained the purpose of the PPD as an interim measure until a Will was prepared and executed, and for use by the Church in the event of an ‘emergency’. If she passed away before a Will was executed, the Church could seek to have the PPD validated as a Will. He would have explained that he would take the PPD back to the Church’s solicitors in Australia who would prepare a formal Will which would be sent to her with instructions for its execution and a request to return it to the Church. He says he would have made it clear that it was not intended by the Church as a long term measure to take the place of a formal Will.
[10] If children were involved, he would have told Ms Matthes that they would have a claim against her estate if she left them out of her Will, but if she still wanted to do so, the Church would require her to sign a letter acknowledging she understood the requirements of parents to provide for children, and that she had been advised of the potential for challenge. However, he does not think he gave Ms Matthes that advice because of the way her adopted children are described in the PPD, as having a distant relationship with her, treating them as “ancient history” as Pastor Royce understood it, so they should not expect to receive an inheritance. The Church does not otherwise encourage people to make large bequests to the Church where there are children.
[11] There is no reference at all to children in the Will prepared following the PPD being signed, and no acknowledgement of Ms Matthes having received the advice usually given about provision for children, but that is explained by Ms Matthes saying that for all intents and purposes she did not have any children.
[12] There is a protocol for writing to Church members who have provided instructions for a Will. First, a letter is sent with the Will for signing, and then a series of letters are sent every two or three months if the Church does not hear back. A record of these letters is kept. Here, the New Zealand Conference was the “Local Conference” and Kim Teao is the Trust Services Assistant and responsible for communicating with Ms Matthes. She sent such letters and maintained the “Record of Wills” for Ms Matthes.
[13] A copy of the Record of Wills was produced by Pastor Royce. A Will was prepared for Ms Matthes and posted to her on 22 July 2015. This followed the form of the PPD, with provision for her estate to be divided into four equal parts as follows:
(a)one part to the Seventh-day Adventist Church Property Trustee New Zealand;
(b)one part to Seventh-day Adventist Church (Pacific Limited);
(c)one part to the Adventist Development and Relief Agency Australia Limited; and
(d)one part for the education of her nieces and nephews, subject to the discretion of the trustees pursuant to clause 4.1(d) of the draft Will.
[14] Reminder letters were sent to Ms Matthes on 1 September 2015, 13 November 2015, and 16 February 2016. These letters are standard in form, but each reflects the dates at which they were sent. The letter of 1 September 2015 referred to a prepared Will being mailed “a little over a month ago” and asked Ms Matthes to return the Will to Trust Services so it could be checked. It asked that when the Will was located by Ms Matthes, it be signed and dated in the presence of two witnesses. If the Will had to be replaced then another could be provided.
[15] The letter of 13 November 2015 said, “It has been some time since the prepared Will was mailed to you for signing”. It emphasised the importance of returning the Will for checking. It has much the same message about execution.
[16] The 16 February 2016 letter refers to it having been “some months” since the prepared Will was sent for signing, and encouraged Ms Matthes to return it.
[17] From the time the PPD was signed until Ms Matthes’ death, the correspondence was all one way. Ms Matthes did not reply.
The events post death of Ms Matthes
[18] The first and second defendants, Pepe and Hazel, applied for Letters of Administration on intestacy, and these were granted on 11 July 2017 under CIV-2017-484-608252.
[19] Against that grant stands this proceeding. The plaintiff, Ms Matthes’ brother, Tipi, refers to the PPD and correctly says that it does not comply with the statutory requirements for a valid Will, being signed by only one witness, with no statement to show that Ms Matthes signed it in the presence of the witness and that the witness signed it in her presence.
[20] The statement of claim pleads that the Church as the executor and trustee named under the draft Will “did not renounce Probate” within three months from the
date of Ms Matthes death. Tipi says he has ‘an interest’ in the estate as a member of the Seventh-day Adventist Church and seeks his appointment as executor, and for the estate to be administered according to the PPD as the ‘intended Will’ for which he seeks validation.
[21] Pepe and Hazel have filed a defence by way of general denial and also plead that Tipi has no standing to seek appointment as executor in the estate, as he is not a person “interested” at law.
[22] By way of reply, Tipi pleads that Pepe and Hazel have no standing to be appointed executors of the estate as they are not the lawfully adopted children of Ms Matthes, and therefore have no interest in the estate. This judgment does not finally determine the relationship between Ms Matthes, Pepe, Hazel and Taumau but the evidence is that Pepe and Hazel were adopted by Ms Matthes and Johannus Kurt Matthes by an order of Court in Western Samoa on 7 February 1994.
[23] The Church does not know whether the PPD, at the date of death, reflected Ms Matthes’ testamentary intent. Otherwise, the PPD has been prepared in the orthodox way the Church makes Wills. The uncertainty and a broader reflection of these circumstances has led the Church to take no active position in having the PPD declared a valid Will.
The Evidence
Tipi
[24] Tipi says that the adoptions were for a purpose, so the children could live and be educated in New Zealand, because Ms Matthes had New Zealand citizenship. He says it was not the purpose of adoption that the children sever their relationship with their natural parents, but this clearly has nothing to do with the status of a lawful adoption.
[25] After Ms Matthes died on 30 January 2017, he spoke with his solicitors, Keil & Associates, with other family members. They were unaware of the PPD and believed Ms Matthes had died intestate. They instructed Keil & Associates to apply for Letters
of Administration appointing Tipi and his brothers as administrators, and consent forms were prepared for the adopted children’s consent. However, Pepe and Hazel said they did not consent to the brothers’ appointment as administrators, and they would seek appointment, as the adopted children.
[26] When Tipi become aware of the PPD he instructed his solicitors to write to the solicitors acting for Pepe and Hazel, and they did so on 23 August 2017, asking whether Letters of Administration had been granted to Pepe and Hazel, and providing a copy of the document “which has now been located”, raising the prospect of such being declared a valid Will pursuant to s 14 of the Wills Act 2007. The letter said:
We understand the original of this document is held in the Seventh-Day Adventist Church records.
[27] The reply on 11 September 2017, by the solicitors for Pepe and Hazel, attached the grant of Letters of Administration on intestacy made 11 July 2017 by the Senior Deputy Registrar in Chambers under r 27.14 High Court Rules.
[28] Pepe and Hazel were entitled to seek a grant because Ms Matthes’ husband Kurt had died before her.
The Miller Road property
[29] A side issue of sensitivity is the dispute over occupation of the Miller Road property. Pepe and Hazel tried to have Ronice Kato and her daughter Peleise Tipelu evicted. Ronice and Peleise were living with Ms Matthes at the time of her death. An order in the Tenancy Tribunal for their eviction is under appeal to the District Court for hearing on 29 October 2018. Mr Oliver will have to address this.
[30] An affidavit has been sworn by Buttons, the daughter of Lifa Siana Fo, Ms Matthes’ sister, and to whom Ms Matthes was “Mum”. She understood from “Uncle Kurt” that he and “Aunty Pepe” were her parents, but that she was not formally adopted by them. She describes her life with Ms Matthes and Kurt and that in 1994 they told her that they had adopted Hazel, Pepe and Taumaia (Tau). Tau has been in hospital from time to time.
[31] Buttons knows the circumstances in which $300,000.00 was withdrawn from Ms Matthes bank account shortly before her death and on the face of it there is considerable reason for concern about this, given an apparent link to a (possible) cryptocurrency called “Onecoin”. Administration of the estate will involve enquiry into this, which is already under way.
[32] Buttons challenges Tipi’s account of the “adopted” children returning to their natural families, and having taken their birth names.
[33] An affidavit from Joy Peagram, a legal executive at Gibbs Mills Livingstone, has been filed on behalf of Pepe and Hazel. She has been in correspondence with Keil & Associates regarding administration of the estate. Mr Oliver as administrator will need to liaise with Ms Peagram.
Submissions
[34] Mr Stirling submits that the Letters of Administration granted to Pepe and Hazel should be recalled, and a declaration made that the PPD is the last and valid Will of Ms Matthes.
[35] The PPD dated 5 July 2015 is non-compliant with the Wills Act 2007 (“the Act”) as it was witnessed only by Pastor Royce, and there were not two witnesses together in Ms Matthes’ presence when she signed the document as required under s 11(4) of the Act. There is no statement on the document that the one witness who signed it was in Ms Matthes’ presence at the time as required by s 11(4)(b) of the Act.
[36] The power to make an order declaring a document a valid Will is provided by s 14(2) of the Act, “if [the Court] is satisfied the document expresses the deceased person’s testamentary intentions”. Then, under s 14(3) of the Act, in considering whether to declare a document a valid Will, 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.
[37] Mr Stirling’s submission is that the document is unambiguous in its effect. He emphasises the paragraph marked “X”, which reads:
The Will needs to be signed and witnessed correctly before becoming a valid legal document. However, despite my intentions to be prompt in the execution of my Will, should my death occur prior to that execution, it is my intention that these instructions should be interpreted in such a manner as to constitute my Will and thereby to revoke all former Wills and testamentary dispositions notwithstanding the normal formalities for the execution of a Will having not been followed.
[38] Mr Stirling says this is expressed to mean that the instructions in the document are to be interpreted in such a way as to constitute Ms Matthes’ Will.
[39] The approach to validation has been discussed in several judgments. In Feron,1 Whata J referred to a robust approach to be followed in the application of s 14 of the Act where a document plainly expresses the testamentary wishes of a deceased person.
[The] authorities illustrate that a robust approach to the application of s 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purposes of s 14, normally to validate documents that plainly express the testamentary wishes of a deceased person. Section 14(2) confers a discretionary power to make a declaration on ratification that the document expresses the deceased person’s intention. The section is concerned with substance not form.
[40] In Re Estate of Campbell,2 MacKenzie J referred to s 14 being remedial, and that where the deceased’s testamentary intentions are in evidence, it is better those intentions are given effect rather than disposition under a previous Will or on an intestacy.
[41] Mr Stirling refers to the reasons expressed for not including the “adopted children” in the initial Will and says this is consistent with Ms Matthes’ thinking about the children, in the context of her estate. He says Pepe and Hazel have produced no evidence to challenge the validity of the document, and that under s 6(1) of the Administration Act 1969, the Court has a discretion as to whom administration of a
1 Re Estate of Feron [2012] NZHC 44, [2012] NZLR 551 at [11].
2 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].
document deemed a valid Will should be granted, having regard to the rights of all persons interested in the estate of the deceased person. Section 6(2) reads:
(2)Where by reason of the insolvency of the estate or other special circumstances the court thinks it necessary or expedient to do so, it may—
(a)grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed an executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration:
(b)grant probate to 1 or more of the executors appointed by a will, notwithstanding that some other person or persons may also be appointed as an executor or executors.
[42] While Mr Stirling made submissions regarding Tipi’s appointment as administrator of the estate, there are very good reasons that neither he nor any family member should not hold that position, and they will not do so.
[43] The crucial issue for consideration is thus the contest as to validation raised by Pepe and Hazel through counsel Ms McDonald and Ms Rutledge.
[44] Ms McDonald refers to the discussion by MacKenzie J in Re Estate of Beaumont, as follows:3
[11] A fundamental principle underpinning the law governing wills is that great care must be taken in determining whether what is claimed to be an expression of a will maker’s wishes is genuinely so. That care is necessary because a will operates only after its maker has died… In considering the s 14(2) question, great care must be taken in determining whether the draft will is genuinely an expression of the deceased’s intention.
[12] Under s 14(2), the Court must be satisfied that the document expresses the deceased person’s testamentary intentions. The use of the phrase “is satisfied” is indicative of the state where the Court on the evidence comes to a judicial decision. there is no need or justification for adding an adverbial qualification. In reaching a conclusion as to whether it is satisfied under s 14(2), the Court must have regard to evidence, as s 14(3) makes clear. The standard of proof to be applied in considering that evidence is the civil standard, balance of probabilities. That is not a fixed standard. …
[13] In the case of validation of a will, a finding that the Court is satisfied will result in a final distribution of the estate in accordance with the document under consideration. The rights and interests of those who will inherit if the
3 Re Estate of Beaumont [2013] NZHC 2719 (citations omitted).
document is not validated will be affected. The potential consequences of the order and the importance of the fundamental principle to which I have referred, indicate the seriousness of the matters to be proved and the consequences of proving them.
[45] Counsel submits there must be cogent evidence to support the conclusion that the document does express the deceased’s testamentary intention. While not expressly stated in the Act, it seems clear that it must be found to express the deceased’s last testamentary intent.
[46] Otherwise, there remains the question whether there is any reliable evidence by inference or otherwise that the expressed testamentary intent was not held at the date of death. If so, that points against validation. This is not straightforward because it can be inferred that many valid Wills do not reflect such intent at the date of death, or are out of date, or regretted, but nothing can be done about the Will being admitted to Probate.
[47] However, the PPD is not a valid Will and has no force as such, unless validated. There are evidential hurdles that may stand in the way of validation. Ms McDonald says caution must be taken, and it is unsafe to assume that the PPD, while clearly expressing testamentary intent, ran the course until Ms Matthes’ death. She makes that submission because by its very terms, the PPD constituted a “holding” position in case a Will was not executed as contemplated. Pepe did not respond to the several reminders that she should execute the Will which was prepared for her. She did not, it seems, respond in any way at all. So, the stated or purpose of the PPD as a precursor to a Will went no further.
[48] Ms McDonald says that it is relevant that the Church has shown no interest in taking the estate by supporting the declaration of validity sought. That does not decide the issue, but it is an expression of its own perception, and own caution. I will return to this.
[49] Ms McDonald refers to the conduct of members of Pepe’s extended family, including Mr Kato, as being “less than optimal”, but that does not lead to doubt as to the bona fides of the application because it stands or falls essentially on the evidence which comes from a detached source, which is not impugned, namely the Church.
I am satisfied the Church has acted properly in this case. While it of course attracts attention that a Church “makes” Wills, and the Church is named as the principal beneficiary, that is no basis of itself to resist validation, as there is no suggestion of undue influence. Pastor Royce says that the instructions in the PPD would be used if Ms Matthes died before a Will could be signed, and that Ms Matthes would have been told that if she died before she had the chance to sign the Will, the Church would not seek to rely on this document. That is in my view proper, and instructive as to the intended immediacy between signing the PPD and execution of the Will.
[50] Ms McDonald says there was such delay between the provision of the draft Will and Ms Matthes death, some 18 months, that the Court must consider whether she changed her mind, and that there are cases to that effect, including White v White,4 which I discuss further.
[51] Ms McDonald refers to factual issues which bear on this judgment. Pepe and Hazel say that the reference to Ms Matthes’ relationship with her adopted children is wrong, as they have not ‘returned’ to their biological families or changed their names, or renewed their loyalties to their biological mothers. Further, Ms Matthes is said to have told Hazel that if she (Hazel) signed over her quarter share in the family home at Mt Roskill following Kurt’s death in 2001, she would provide for her and her siblings in her Will. Such a claim lies against the estate, whatever administration is ordered by the Court.
[52] Ms McDonald submits that reference to the children in such a dismissive way in the PPD is inconsistent with Ms Matthes’ Christian sensibilities and this may have led her to reflect on and revise her intention to leave her estate to the Church. This connects with the evidence that she failed to honour the asserted undertaking to Hazel. This is speculation but cannot simply be dismissed as out of the question.
[53] The permutations as to what happened are that Ms Matthes simply did not get around to signing the Will prepared for her, or forgot, or become unsure whether this was the right thing to do, or changed her mind. Pastor Royce says her failure to sign
4 White v White [2014] NZHC 865.
the Will over time, despite being pressed and reminded to do so, means it would be inappropriate for the Church to seek validation.
Discussion
[54] The judgment of MacKenzie J in Re Estate of Beaumont,5 is instructive. I take from that the need for care in determining whether a document is genuinely an expression of the deceased’s testamentary intentions. I do not consider there to be any doubt about that in this case, at the date of execution of the document. MacKenzie J discussed the phrase “is satisfied” as an evidential consideration, on the balance of probabilities. To be satisfied in that regard must recognise the rights and interests of those who would inherit if the document is not validated. The consequences of Ms Matthes dying intestate, or with a valid Will, are in this case stark. Either her family will take, or the Church, subject to other claims at law. As MacKenzie J said, this indicates the seriousness of what must be proved.
[55] Section 14 is framed in permissive terms and there remains a discretion whether to make an order, even if the Court is satisfied as to the Will maker’s intention at the time the document is created. Here the issue squarely raised is whether the clearly expressed intention in the PPD lasted the distance, so as to be operative at the date of death.
[56] Ms McDonald submits that the significance of the declaration sought means cogent evidence is needed. It is an unusual, if not unique, case in that the principal beneficiary under the document sought to be validated does not seek validation and has explained why. Its rejection of the chance to advance its own position is because it doubts the validity of the PPD as a Will.
[57] There is, in my view, a striking feature of the evidence. Ms Matthes expressed her intent, but did nothing in a positive way over many months to follow that up despite it being made so easy for her. The PPD was intended to effect as a temporary ‘stopgap’, and as the Church has explained, that would have been made clear to Ms Matthes. The gap between the execution of the document for which validation is
5 Re Estate of Beaumont, above n [3].
sought, and death, is a significant feature. Ms McDonald says there is a “subset” of cases which deal with this kind of situation.
[58] In White v White, the Court declined an application to validate a draft Will because there was evidence that the deceased was still thinking about the Will. A Will dated 21 December 2007 was under the challenge of a later document, being a draft Will prepared on the deceased’s instructions in August 2013, just before death on 9 October 2013. The executors, under what was clearly a valid Will, properly raised the status of the later document which, if declared valid, would revoke the 2007 Will.
[59] A legal executive from Meredith Connell, the deceased’s solicitors, deposed that she had made many Wills over some 60 years. She had been involved with her affairs from 2005 and acted in the preparation of the 2007 Will. When she visited Mrs Harvey, she said she wanted to discuss her Will and Enduring Powers of Attorney. At a meeting on 20 August 2017 she handed over a marked-up copy of the 2007 Will with changes she wanted made, and they discussed them. The legal executive was to prepare a new Will and Ms Harvey was to provide further information. That information did not arrive promptly, so the legal executive prepared a Will in accordance with the changes marked, sent it to Mrs Harvey on 27 August 2017, and telephoned the next day. They discussed the draft and Mrs Harvey said she had not compiled the information which she was going to provide. In a further telephone call on 3 September, Mrs Harvey said she was still thinking about the Will and wanted to make some changes to the legacies, which she had not finally determined, and other changes. The legal executive wrote again asking about the contemplated changes, but did not hear from her again before she died on 9 October.
[60] MacKenzie J was satisfied that the draft did not express the deceased’s testamentary intentions, and while she wanted to make changes to her Will, she had not finalised her intention. For those reasons, the 2007 draft Will was not a Will capable of being declared valid. The fact she may have wanted to change the 2007 Will means nothing until the changes were effected, by a Will valid on its face or otherwise.
[61] This case is distinguishable as in Ms Matthes’ case she did clearly express her testamentary intent. Whether she retained that intent is at the heart of this judgment.
[62] Another judgment of MacKenzie J, Re Estate of Bishop, considered the question of whether a lapse in time gave rise to the inference that the deceased had changed their mind.6
[6] To be satisfied that an unsigned draft will expresses the deceased’s testamentary intentions, this Court must consider carefully whether the failure to sign the draft might indicate a change of mind on the part of the deceased after giving instructions for the will to be drafted. That possibility must be closely examined here. The draft will was prepared in 2009. The deceased did not die until 2013. His failure to sign the will cannot be explained by his having been prevented from signing the will by later events. It is necessary to look at other circumstances to decide whether those exclude the possibility that the failure to sign the will was a deliberate decision, because of a change of mind. Only if those other circumstances are sufficiently compelling to exclude that possibility can the Court be satisfied that the draft will reflects the testamentary wishes of the deceased.
[63] The factual dispute about whether the adopted children took a position in which they effectively renounced their relationship with Ms Matthes does not alter their legal status as children of the deceased. Hazel’s evidence is that in return for her signing over a share in the family home at Ms Roskill after Kurt’s death, she would be provided for and so would her siblings under the Will. This while untested is another reason for caution about accepting the putting aside of the adopted children as part of the PPD if validated as a Will.
[64] It is obvious that while the PPD did express a clear testamentary intention, it was not backed up by the execution of the Will sent to Ms Matthes, despite the clear and repeated efforts of the Church to have the draft Will approved and executed. The stop gap nature of the PPD is inconsistent with the inertia of Ms Matthes when the Will was sent to her, with reminders. That leaves me with very real doubt that the PPD remained her testamentary intent. I am not at all satisfied that it did, indeed to the contrary.
[65] For these reasons, I conclude that the grant of Letters of Administration should stand, not in favour of Pepe and Hazel, but in favour of Mr Oliver.
6 Re Estate of Bishop [2014] NZHC 3355.
Disposition
[66] I decline to validate the document in question, but order that the grant of Letters of Administration be in favour of Peter Andrew Oliver of Daniel Overton & Goulding, solicitors, subject to his formal acceptance advised to the Court on his reading this judgment.
[67] I conclude by saying that if he accepts the appointment Mr Oliver has significant work to do to regularise some of the issues already raised in the administration of this estate. I reserve leave for him to apply to the Court for directions, should he need to do so.
Costs
[68] I reserve the question of costs, but as it was entirely proper that Tipi’s application for validation was made, I consider reasonable costs should be paid to him out of the estate. I will make an order if that is necessary.
…………………………………………….
Nicholas Davidson J
Solicitors:
V J Mills, Gibbs Mills Livingstone, Auckland Keil & Associates, Auckland
Copy to Counsel
A E McDonald, Barrister, Auckland S C S Rutledge, Barrister, Auckland
SCHEDULE
SUI\fB'MJ¢V • J2gtl/i%cd,;z cre;it not wori6t
Into four equal parts:
jlfJltU IONS FOR'fHE WILL
I Part to NNZ Confei:uncc7or evaggelism
1 Putt to SPD for cvangclism ip Sg¡;¡pg
i Part to ADRa-An trali for the work ofmRA in sam«a
I Part held in trust until the:young st ofher nieces and nephews living at her dcathhave mnpleted theé secondmy-so9ool educatiou, fòr the paytnent of sohool fees at scliooIs operated by the Soventh-day Advèntist Ghitrch on behalf of thcm nloces and ncpbcm for theit prinury and ucondaiy scbool education Anyremaining to SPD for evangelism In Samoa.
FUï4BRAL 1N5TRIf (ON6
SDA
buried In the pre-porcbastd plot in tÍie Waikuinete Ccmetiry
ï uaüerstso4 also tbct:
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3. I atoat”Ifbmly to dbc»ssay Wtlt vkh any ont S choose.
4. ] The Billoe<ds to berJgacd aad edtuessed anzcdy bc£ore becomJlig s valtdJegsl domu»c»L5I d›ouJd abo bo conectJy daIc‹L F accept ftill rospoosibltity:ormsurlrigtbstthcsc th6igs Arc done.
6. .
7.
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7o tbe but o£oty biowl«dge tIi• above infoizaation is conccc 7ko In£orroadoa coatai»cd iJj this Noa will be k¢pt coafidenttal.
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