KEITH HENDRIKS AND TANYA MAREE HENDRIKS REBECCA ANN HENDRIKS MARYANN VERONICA FLETCHER

[2024] NZHC 3309

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2022-488-000075

[2024] NZHC 3309

BETWEEN

KEITH HENDRIKS

Applicant

AND

TANYA MAREE HENDRIKS

First Respondent

REBECCA ANN HENDRIKS
Second Respondent

MARYANN VERONICA FLETCHER

Third Respondent

Hearing:

21 October 2024

Appearances:

R Mark for the Applicant

A C N Fuiava / S Y Ghil for the First Respondent R Little for the Second Respondent

Third Respondent in Person (by VMR)

Judgment:

8 November 2024

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 8 November 2024 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Denham Bramwell, Auckland R C Mark, Auckland

HENDRIKS v HENDRIKS [2024] NZHC 3309 [8 November 2024]

Introduction

[1]    Keith Hendriks (Keith) applies for an order declaring that a document purporting to be the last will of his deceased brother, Jonathan Michael Hendriks, is a valid will. The application is necessary because the deceased’s signature was only witnessed by one person when s 11(4) of the Wills Act 2007 requires a will to be witnessed by two people.

[2]    The document was executed in hospital five days before the deceased died. The document records that the deceased dictated the will to another brother, Douglas Hendriks, in the presence of a witness, who has signed the document.

[3]    The main asset in the estate is a farm at Kohumaru Road, Mangōnui. In the document the deceased states that he had “signed across” half of the farm to  his     de facto partner, Maryann that day;1 and that he wished to leave the remaining half of the farm to Keith. The document records that he wished that none of his three children (Tanya Maree Hendriks (Tanya), Rebecca Ann Hendriks (Rebecca), or Conran Hendriks (Conran)) should receive any benefit whatsoever from his estate.

[4]    Tanya, Rebecca, and Maryann oppose the application to have the document declared a valid will. Tanya and Rebecca oppose the application on the basis that there is insufficient evidence for the will to be declared valid, the deceased did not have testamentary capacity when he signed the document, and the document does not reflect his testamentary intentions. It is unclear why Maryann opposes the application.

[5]    The parties have filed 21 affidavits by 15 witnesses. The affidavits were filed before the parties instructed counsel. Counsel have raised questions about the relevance and admissibility of some of the evidence. A hearing has been set down to determine admissibility of the evidence in question before the hearing of the application itself, to avoid unnecessarily prolonged cross-examination.

1      At the same time the deceased signed a “contracting out” agreement under s 21 of the Property (Relationships) Act 1976 which provided that the deceased and Maryann would hold the farm property in equal shares as tenants in common and that the deceased would immediately transfer a half share to Maryann.

Legal principles

Section 14 of the Wills Act 2007

[6]Section 14 of the Wills Act states that the High Court may declare a will valid:

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.

[7]    The approach to the application of s 14 was summarised by MacKenzie J in both Re Beaumont2 and Re Campbell.3 His Honour said:

(a)great care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so;

(b)under s 14(2), the inquiry is focussed on the will-maker’s intentions, rather than the formal steps taken to implement those intentions;

(c)the evidence that may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons

2      Re Beaumont [2013] NZHC 2719 at [11].

3      Re Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [15]–[22].

why the document was not properly signed and witnessed, and any other relevant considerations;

(d)where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect to in preference to intestacy; and

(e)there must be cogent evidence that the document reflects the deceased person’s testamentary intentions but the standard of proof to be applied is the ordinary civil standard; that is, on the balance of probabilities.

Admissibility of evidence

[8]    A fundamental principle on the admissibility of evidence is provided in s 7 of the Evidence Act 2006 (the Act):

7        Fundamental principle that relevant evidence admissible

(1)All relevant evidence is admissible in a proceeding except evidence that is—

(a)inadmissible under this Act or any other Act; or

(b)excluded under this Act or any other Act.

(2)Evidence that is not relevant is not admissible in a proceeding.

(3)Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

[9]    Section 8 of the Act provides for a general exclusion rule that in any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding or needlessly prolong the proceeding.

[10]   Section 18 of the Act provides that a hearsay statement is generally admissible if the statement is reasonably reliable and either the maker of the statement is unavailable as a witness or the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

[11]   Section 23 of the Act provides that a statement of an opinion is not admissible in a proceeding, except as provided by ss 24 or 25. Section 24 states that a witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

Submissions

[12]   Keith objects to parts of the affidavits of Tanya, Rebecca, and a friend of the deceased, Jacqueline Gloyer. The evidence in question falls into four broad categories: general evidence of the family history and relationships; unqualified opinion evidence about the deceased’s mental state; evidence of what the deponents believed the deceased’s testamentary intentions to be; and hearsay evidence.

[13]   Mr Mark (for Keith) submits that the matters that need to be proved or disproved in this application are: how and when the document was signed and witnessed; whether the document (despite its deficiencies) records the deceased’s testamentary intentions; and whether the deceased made any statements about his testamentary intentions. He submits that general evidence about the family history and relationships would be relevant to a Family Protection Act claim but is not relevant to a s 14 application.

[14]   Mr Mark accepts that evidence of explicit statements made by the deceased about his testamentary intentions is relevant under s 14(3)(d). However, he submits that evidence of what family members believed the deceased’s testamentary intentions to be is not relevant under s 14 and is therefore inadmissible.

[15]   Mr Mark accepts that testamentary capacity is an issue but submits that testamentary capacity will be determined by the expert medical evidence, rather than unqualified opinion and speculation by family members.

[16]   He submits that it is important that irrelevant, unqualified opinion and hearsay evidence is excluded to manage the scope of cross-examination, and therefore the length of trial.

[17]   Ms Fuiava (for Tanya) submits that it is not possible to separate the issue of the deceased’s testamentary capacity from his testamentary intentions. She says that where the request is to validate a purported “death bed” will, the law on testamentary capacity must be considered.

[18]   She submits that the statements in Tanya’s affidavits about her upbringing, her relationship with the deceased, and the changes she observed in the deceased’s personality are all relevant to the deceased’s testamentary intentions. She says it is relevant, under s 14, to consider whether the way the deceased disposed of his estate in the document is consistent with the relationship he had with his children. She submits that the consistency of the deceased’s testamentary intentions over time is also relevant and is a factor that medical experts consider when assessing testamentary capacity. She says, therefore, that Tanya and Rebecca’s evidence on what they understood their father’s intentions to be is relevant and forms part of the factual matrix. Furthermore, she submits that cross-examination of Tanya, Rebecca, Keith, and Maryann is unavoidable.

[19]   In turn, Tanya claims that certain affidavits filed by Keith and Rebecca are inadmissible. Ms Fuiava submits that affidavits of Arthur Lange and Dawn Hawkins- Lange, tenants on the farm property, contain irrelevant evidence relating to the deceased’s wish for them to remain on the property. She submits that evidence from Panatianui Hohaia, a former farm worker, concerns the same subject and is inadmissible hearsay.

[20]   Ms Fuiava submits that the evidence of Jacqueline Gloyer overlaps with the evidence of Rebecca and Tanya and is unnecessary. Additionally, her evidence about the deceased’s testamentary intentions is contradictory in parts. She submits that the probative value of this evidence is outweighed by its risk of unnecessarily prolonging the proceeding.

[21]   Further, Ms Fuiava submits that the evidence of Keith and Douglas sufficiently addresses the points covered in Ailsa Burgoyne’s affidavit, making it redundant. Accordingly, it should be excluded under s 8 of the Act.

[22]    Mr Little (for Rebecca) submits that the evidence of Tanya and Rebecca about their understanding of the deceased’s testamentary intentions is relevant.

[23]   He rejects that it is solely for the experts to determine testamentary capacity and says that family members’ observations of personality changes and perceptions of mental decline are relevant. However, he accepts that the family members’ unqualified opinion evidence of the causes of any such changes is inadmissible.

[24]   He accepts that many of the paragraphs of Rebecca’s affidavit describing general background and family relationships are irrelevant but maintains that the balance is relevant.

[25]Mr Little confirms that Rebecca is not pursuing an undue influence claim.

[26]   He says that there may be some irrelevant material contained in the affidavit of Jacqueline Gloyer, but submits that paragraphs three, five, and six to eight are relevant.

[27]   He says that the relationship and family background section of Maryann’s affidavit is largely context but is relevant to the credibility of Mr Hohaia and to the change in relationship between the deceased and his children and his observable behaviour before he signed the document.

[28]   In turn, Rebecca objects to certain paragraphs of the affidavits of the witness, Keith, and Mr Hohaia, as being irrelevant or an expression of unqualified opinion.

Assessment

[29]   There are four requirements for s 14 of the Wills Act. There must be a document; the document must appear to be a will; the document must not comply with s 11; and the Court must be satisfied that the document expresses the deceased’s testamentary intentions. It is only the final requirement that is at issue here.

[30]   It is common ground that the deceased’s testamentary capacity is in question. The deceased signed the document from his hospital bed five days before he died. In

Nijsse v Squires, the Court of Appeal said that those propounding a hospital will are obliged to show that a proper inference can and should be drawn that the deceased had testamentary capacity at the time the will was executed.4 A document made by a person who has a “disorder of the mind” or “insane delusion” cannot be declared valid under s 14, since such persons cannot form valid testamentary intentions.5

[31]   In my view, evidence about the deceased’s relationships with family members could be relevant to his testamentary capacity and therefore whether the document expressed his testamentary intentions. For example, evidence that the deceased was close to one or other of his daughters, or conversely was estranged from them, could be relevant to determining whether the purported will reflected his testamentary intentions or was, as Tanya and Rebecca contend, the result of a “disorder of the mind”.

[32]   Where the evidence strays too far from the nature and strength of these relationships it should be excluded to ensure that the hearing is not unnecessarily prolonged by irrelevant evidence and cross-examination. Having said that, some background evidence is necessary to inform the Court of the various family members, how they are related, and to provide the basic chronology.

[33]   Family members’ evidence of observable changes in the deceased’s personality or mental deterioration is relevant and admissible. Unqualified speculation as to the medical reasons for these changes is not admissible. Some of the statements at issue involve both of these. In that event, I rule the evidence admissible at this stage. The trial judge will determine the weight to give to this evidence.

[34]   It is common ground that evidence of specific statements made by the deceased about his testamentary intentions is admissible. Statements by family members of their understanding of what the deceased’s testamentary intentions were are more difficult. The probative value of this evidence is questionable. On the other hand, the deponents’ understanding may be based on statements made by the deceased over the course of their relationship. I note that many of the family members give evidence of

4      Nijsse v Squires CA53/04, 15 December 2024 at [10].

5      Lindsay Breach, Nevill’s Law of Trusts, Wills and Administration (14th ed, LexisNexis, Wellington 2023) at 13.5.

this nature, including Tanya, Rebecca, and Keith. On balance, I consider that this evidence should remain in the affidavits for now with the trial judge to determine its probative value and admissibility.

[35]Reflecting these considerations, I find the following.

[36]   The relationship and family background section of Maryann’s October 2023 affidavit provides relevant family context. Her evidence of the changes she observed in the deceased’s behaviour before he signed the document is relevant to his testamentary capacity. Her evidence about the deceased’s relationship with his children is potentially relevant to his testamentary capacity. The trial judge will assess how much weight to give to this evidence.

[37]   The affidavit of Jacqueline Gloyer is admissible. It provides helpful family background, her impression of the deceased’s relationship with his children based on what she witnessed, and her understanding of his testamentary intentions. Again, the trial judge will decide on the weight to be given to this evidence.

[38]   The affidavit of Panatianui Hohaia is admissible for the same reasons. It also provides evidence relevant to Tanya’s credibility. His evidence of the deceased’s mental state in hospital is based on his perception.

[39]   The affidavit of Ailsa Burgoyne is admissible, apart from paragraph nine which is not relevant. The evidence of her understanding of the deceased’s testamentary intentions is relevant. Her evidence is potentially relevant to Tanya’s credibility.

[40]   The evidence of the Hon John Banks about the deceased’s understanding of the will at paragraph seven, objected to by Rebecca, is admissible. It is primarily the witness’s perception of the deceased.

[41]   Mr  Mark  agrees  to  withdraw  the  affidavits  of  Arthur  Lange   and   Dawn Hawkings-Lange because they are irrelevant.

[42]   Reflecting the general approach described above, my decision on the specific paragraphs objected to in the affidavits of Tanya, Rebecca and Keith are set out in the following table.

Affidavit - Tanya Hendriks, 16 June 2023

Para	Wording	Objection	Decision
3	"… and I can attest that my father has never expressed any wishes for Keith Hendriks to receive some or any part of the farm."	Not evidence of a statement made by the deceased.	Admissible
4	"My father and I were extremely close my entire life."	Not a s 14(3) consideration.	Admissible
4	"… and I saw personally changes in him rapidly from the time of the diagnosis, some of which I understand now [Redacted]."	unqualified opinion Not a s 14(3) consideration	First part admissible (based on observation). Second part inadmissible opinion.
5	"After my father's diagnosis I witnessed his state of mind decline."	unqualified opinion	Admissible - based on observation.
7	"I have knowledge and experience of chemotherapy and the mixture of cancer medications it appears likely in a possible vulnerable and confused state he could be manipulated into creating this will."	unqualified opinion speculation	Inadmissible. Unqualified opinion and speculation.
8	"As far as I am aware there is no supporting evidence existing from a doctor or medical professional supporting the will that states my father was of sound mind."	Not a s 14(3) consideration.	Inadmissible.

Affidavit - Rebecca Hendriks, 17 April 2023

Para	Wording	Objection	Decision
2	"… and I can attest that he had always intended to leave the farm to his three children before meeting Maryann."	Not evidence of a statement made by the deceased.	Admissible
4	"My father and I had a strong relationship."	Not a s 14(3) consideration.	Admissible

5	"I observed my father's mental state was clearly compromised by his illness and the cancer medication he was taking mixed with alcohol and other illegal drugs which I witnessed."	unqualified opinion	Admissible, based on observation.
5	"It appears to me that in his frame of mind it is probable he was manipulated into signing a will that excluded his children."	unqualified opinion, speculation	Inadmissible. Speculation. Irrelevant - no claim of undue influence.

Affidavit - Tanya Hendriks, 25 August 2023

Para	Wording	Objection	Decision
7	"Dad and Keith's relationship was up and down. Keith only lived at the farm once when he and Dad decided to start a business together. However this did not end up happening and Keith after disagreeing with Dad one day grabbed just his clothes and a backpack and left without even telling Dad and was not seen for several years. It was on this occasion that Keith left both his fridge and television at the farm that he refers to buying in his affidavit. Also Dad had paid back Keith money for the sawmill and any other money Keith had loaned to him."	Not a s 14(3) consideration. Hearsay.	Admissible - relationship with Keith relevant. Relevant to Keith's credibility.
23	"I also lived on the farm at different times over the years, most recently between 2015 to 2018. I worked on the land clearing gorse and maintaining the farm with my Dad. While living up here I worked full time at Doubtless Beauty and cared for Dad after he had an accident which left him with a broken leg and the other leg had had ripped tendons. He also had torn the tendons in his shoulder so he was in a wheelchair for several months and needed someone to help run the farm and look after him."	Not a s 14(3) consideration.	Admissible evidence of relationship

24	"I did a lot of work on the land with Dad and had regularly about every third week gone up north to spend time with him and help with anything. Whenever Dad came to Auckland he would always stay at my home. Over the years prior to this my husband at the time, Richard Benjamin Cotton, and I would go to the farm on a regular basis to help Dad with maintenance. When Dad went to jail Richard and I paid Dad's mortgage while he was there."	Not a s 14(3) consideration.	Admissible evidence of relationship
26	"My partner Ryan John Last and I go up to help with the maintenance of the farm when we can including laying new carpet in the lounge, tile the kitchen floor, weed and clean up large vegetable gardens and orchards and replant for this year. The driveway has always flooded so we dug in new drainage pipes and water runoff areas. We mowed and trimmed around the main house and did a big cleanup of property and tidied up barns and sheds."	Not a s 14(3) consideration.	Inadmissible - irrelevant.
27	"We also installed Wifi security cameras as Maia said that Keith was constantly harassing her and coming on the property without her permission and abusing her."	Not a s 14(3) consideration; hearsay	Inadmissible - irrelevant, hearsay.
28	"I would love to keep the farm in the family and as set out in my earlier affidavit and for it to be left to me and my siblings and to our kids after us. This is why I continue to help Maia with the maintenance where I can. Since Keith's application I am reluctant to put more time and money into the farm."	Not a s 14(3) consideration	Inadmissible - irrelevant.

29	"I know that Arthur Montague Lange and his wife Dawn are staying on the property and are meant to be paying rent that is used for paying the land rates. I understand the rates have increased and there is money owing on the bill. I understand that they are causing issues with Maia arguing and abusing her. Recently Council has been out there about pigs that have been breeding on the property and neighbours were complaining about the smell. They were told to remove the pigs off the property."	Not a s 14(3) consideration; hearsay	Inadmissible - irrelevant.
30	"They have several small sheds/small houses on the land with no consent from the Council or Maia. They have also put in a driveway and a letterbox all without permission from any of the family members or Maia. The area they are living on has no sewerage lines or any power etc."	Not a s 14(3) consideration	Inadmissible - irrelevant.
31	"I have seen what they have done there and it looks like they are building a commune on the land. I don't think that is something my Dad would ever have agreed to."	Not a s 14(3) consideration; opinion; speculation	Inadmissible - irrelevant.
32	"I think they are causing issues that will have to be dealt with by the owners once the application is determined."	opinion; speculation	Inadmissible - irrelevant.
35	"I believe that Dad was not himself after his diagnosis and it got worse after he started cancer treatments and combining prescription medication with illegal drugs."	unqualified opinion	Admissible - based on observation. Trial judge will determine weight.
36	"Dad was an alcoholic and smoked marijuana daily, however after his diagnosis he started other illegal drugs as well."	Not a s 14(3) consideration	Admissible - factual evidence based on observation. Trial judge will determine weight.
37	"He alienated a lot of his friends that he had over the years... Some he has known for 40 years have also told me that he changed and stopped talking to them."	Not a s 14(3) consideration	First part admissible. Second part inadmissible - hearsay.

39	"At no time did Dad ever tell me that he wanted to give the farm to Keith. After what Dad went through with his Mum's estate, I believe that he would not want the same thing happening now."	Not evidence of a statement made by the deceased	First sentence admissible. Second sentence inadmissible.
44	"I also believe that Maia, Douglas and Keith did not believe that the purported Will was really what Dad wanted."	opinion; speculation	Excluded. Speculation, no probative value.

Affidavit - Rebecca Hendriks, 12 September 2023

Para	Wording	Objection	Decision
2 to 33	Background	Irrelevant	Removed by consent except 7, 9, 15, 29, 31
50 to 83	Background	Irrelevant	Removed by consent except 53, 59
68 to 74	Background	Irrelevant	Removed by consent.
43	"I recall being home in November 2017 because it was around this time that I completed a half marathon at Kerikeri."	Irrelevant; Not a s14(3) consideration	Admissible – provides context.
44	"I was catching up with my father at that time along with my brother and I understood from my father from comments that he made that he was definitely not in a relationship."	Hearsay; Not a s14(3) consideration	Admissible – provides context.
64	"I understand that his general practitioner had been given scans from a few years before 2020 and it could be seen that there was cancer back then but this wasn't detected at the time."	Hearsay; Not a s14(3) consideration	Inadmissible - irrelevant
89	Not a s14(3) consideration	Admissible - potentially relevant to capacity
95	unqualified opinion	Admissible - potentially relevant to capacity
103	Irrelevant	Admissible factual context

108	Irrelevant	Admissible - based on observation.
109	Opinion	Admissible. Trial judge will assess weight.
110	Hearsay	Admissible
112	Not a s14(3) consideration	Inadmissible - irrelevant
116	Hearsay	Admissible
118	Hearsay	Inadmissible hearsay
121 to 124	Opinion	121 and 122 admissible – factual evidence based on observation. 123 and 124 inadmissible, opinion evidence.

Affidavit - Keith Iain Hendriks, 4 August 2023

Para	Wording	Objection	Decision
4	The entire paragraph except for the first sentence	Irrelevant	Admissible. Relevant evidence of relationship between deceased and Keith.
5	Irrelevant	Inadmissible - irrelevant.
6	Irrelevant	Admissible. Relevant evidence of relationship between deceased and Keith.
9	Irrelevant	Inadmissible - irrelevant
10	Irrelevant	Inadmissible - irrelevant.
15	Unqualified opinion	Admissible - relevant to testamentary intentions
16	Irrelevant	Admissible.
17	Irrelevant	Admissible - relevant to testamentary intentions
18	Unqualified opinion	Admissible - relevant to testamentary intentions

Costs

[43]   As the result has been mixed, I am inclined to find that costs in relation to this application should be reserved. If either party considers that a costs order should be made now, they may file submissions of not more than five pages within 10 working days. Responses may be filed within a further 10 working days.

Directions

[44]   The Court would be grateful if the parties would file a joint memorandum within 10 working days providing an estimate of the trial length and proposing pre-trial directions, so the matter can be set down.

Associate Judge Gardiner