Keast v McMaster

[2015] NZHC 932

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2014-485-007847 [2015] NZHC 932

UNDER	THE ADMINISTRATION ACT 1969
IN THE MATTER OF	THE WILL OF WILLIAM ROBERT KEAST
BETWEEN	ALEXANDER LANCE KEAST Applicant
AND	TRACEY ARLENE MCMASTER Respondent
AND	CHRISTINA RAE HUNT Respondent
AND	JAMES GORDON BENNETT Respondent

Hearing:	5 May 2015
Appearances:	JNP Young for the Estate J G French for Applicants A J Woods for Respondents
Judgment:	5 May 2015

RULING 1 OF DUNNINGHAM J

[1]      The beneficiaries of the estate of the late William Keast (the deceased) have given  notice  that  they  object  to  the  admissibility  of  the  affidavit  evidence  of Nicholas James Maley, who is the son of one of the beneficiaries, Zilda Harvey.

[2]      Ms Harvey was a daughter of the deceased and she was his caregiver during the time the contested will was executed.   Mr Maley gives evidence about his relationship with his mother and her alleged abusive treatment of him as a child.

This  evidence  is  given  as  propensity evidence  to  suggest  it  is  more likely that

KEAST v MCMASTER AND ORS [2015] NZHC 932 [5 May 2015]

Ms Harvey would have similarly unfairly manipulated and controlled her father in order to get him to amend his will.

[3]      The introduction of this evidence is opposed by the beneficiaries on the basis that it is irrelevant,1 and will needlessly prolong the proceedings.2   This is because it will necessitate an inquiry into the truth of Mr Maley’s allegations and the relevance of those events, which occurred over 20 years ago, to Ms Harvey’s relationship with and behaviour towards her father in 2012.

[4]      The caveator, the deceased’s son, Alexander Keast, supports the admissibility of the affidavit.  He says the evidence has an important bearing on what is a critical issue in the present case and so the relevancy test in s 7 of the Evidence Act (“the Act”) is satisfied.  While he acknowledges that, having regard to the test in s 8 of the Act, the evidence may well prolong the proceeding, he argues that the evidence is of high probative value.   If it was excluded it would cause serious prejudice to the caveator’s case, and it will not needlessly prolong the hearing.   In short, in undertaking the balancing exercise in s 8, he submits that the probative value of Mr Maley’s evidence is not outweighed by the risk that it will needlessly prolong the proceedings.

[5]      I deferred consideration of this issue to the outset of the hearing, to allow time for affidavits in response to Mr Maley’s evidence to be filed.  This was to allow me the opportunity to see how extensively Mr Maley’s evidence was contested, and to give me a sense of how much additional time the issues in dispute would occupy in the hearing.

[6]      I have now received and read those further affidavits, being the affidavit of Christina Hunt, another daughter of the deceased and the aunt of Mr Maley, and the further affidavit of Ms Harvey, Mr Maley’s mother, responding to those allegations.

[7]      Suffice to say that the allegations are briefly, but comprehensively, refuted.

1      Under s 7 of the Evidence Act 2006.

2      In contravention of s 8 of the Evidence Act 2006.

The relevant legal test

[8]      Section 40 of the Evidence Act contains the rules relating to evidence of propensity.  Relevantly it provides:

(1)      In this section and sections 41 to 43, propensity evidence—

(a)       means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b)      does not include evidence of an act or omission that is—

(i)       1 of the elements of the offence for which the person is being tried; or

(ii)      the cause of action in the proceeding in question.

(2)      A  party  may  offer  propensity  evidence  in  a  civil  or  criminal proceeding about any person.

[9]      The Act goes on then to set out various controls on the admissibility of propensity evidence for the purpose of a criminal proceeding but, in respect of civil proceedings, the law remains largely as it was before the Act.3   And, as Mr French has  submitted,  the  test  of  admissibility for  similar  fact  evidence  is  focused  on relevance.4

Analysis

[10]     I  accept  that,  prima  facie,  evidence  that  would  show  a  propensity  of Ms Harvey to act in an abusive, controlling or manipulative way within a domestic relationship could be relevant to the issue of whether she acted in this way towards the deceased, in order to get him to amend his will so that it would be less favourable to her brother, Alexander Keast, than the existing will.   However, that superficial relevance must in my mind, be scrutinised carefully.   There are some differences between the allegations made by Mr Maley, and those made by Mr Keast against Ms Harvey.   The affidavit of Mr Maley focuses on physical abuse, which is not

alleged in the relationship with the deceased and the allegations of emotional abuse

3      Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd edition, Brookers, Wellington, 2014) at 212.

4      O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534.

are of indifference as opposed to undue influence.   There is only one (disputed) allegation about the extraction of money, when he says she asked her parents for more than was required to provide him with orthodontic treatment.

Findings

[11]     Furthermore, it is not clear to what extent the behaviour (if any of it is substantiated),  relates  to  the  particular  interactions  between  Ms  Harvey  and Mr Maley in the circumstances they were in at the time.  Mr Maley acknowledges he was not “a perfect child” and his mother was, of course, a solo mother trying to bring up two sons.   I do not know if the other son supports Mr Maley’s allegations and Mr Maley  is  described  by  some  other  witnesses  as  “sulky,  moody  and  quick tempered” and someone who “thought the world owed him”.  I do not know whether those allegations are correct, but it is clear that there may be aspects of that relationship which we would need to explore before we could decide where the fault lay.

[12]     Thus,  while  superficially,  the  suggestion  the  alleged  behaviour  towards Mr Maley  in  his  childhood,  supports  the  allegations  of  manipulative  behaviour towards the deceased, it appears to me that there are significant differences in the type of behaviour alleged, and also in the circumstances in which it arose.

[13]     Even more importantly, the allegations are strongly disputed by Ms Harvey, and one of her sisters, Mr Maley’s aunt.  If the evidence was admitted, I would have to make significant credibility findings, which could only be done with extensive cross-examination, and where there is unlikely to be significant independent corroborative evidence for either set of allegations.  This would effectively require, in my view, a trial within a trial to establish the reliability of the allegations, before I could use them to support a finding that Ms Harvey was manipulative and overbearing in her relationship with the deceased.

[14]     For these reasons, I am not satisfied that the test in s 8 of the Act, which is that the probative value of the evidence outweighs the risk that it will needlessly prolong the proceeding, is satisfied. Accordingly both Mr Maley’s evidence, and the evidence  in  reply,  is  ruled inadmissible in  these proceedings.   The proceedings

should focus on the relationship between Ms Harvey and the deceased, and the specific allegations that the challenged will was only obtained through the undue influence of Ms Harvey.

Solicitors:

Preston Russell Law, Invercargill

French Burt Partners, Invercargill

Smith Wood & Woods, Gore