Kelsey vv Taniora

[2017] NZHC 3234

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2017-419-066 [2017] NZHC 3234

IN THE ESTATE OF	LAWRENCE PERKINSON
UNDER	Section 14 of the Wills Act 2007
BETWEEN	KATARINA TAKIORA KELSEY Applicant
AND	MICHAEL JOHN TANIORA as the Executor and Trustee of the estate of LAWRENCE PERKINSON Respondent

Hearing:	12 December 2017
Counsel:	D W Mayall for the Applicant
Judgment:	12 December 2017
Reasons:	19 December 2017

REASONS JUDGMENT OF DUFFY J

This reasons for judgment was delivered by me on 19 December 2017 at  3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Niemand Pebbles Hoult, Hamilton

KELSEY v TANIORA re estate of LAWRENCE PERKINSON [2017] NZHC 3234 [12 December 2017]

[1]      This  proceeding  is  commenced  by  way  of  originating  application  for declaration that the will of the deceased, Lawrence Perkinson, is valid.

[2]      The application has proceeded by way of formal proof.   The application, together with the supporting affidavit of the applicant Katarina Kelsey, was served on the persons whom the Court directed be served, and they have chosen to take no steps in the proceeding.

Facts

[3]      On 3 January 2010 Mr Perkinson was found dead in his car.  A subsequent police investigation determined the cause of death was suicide.

[4]      A short time after Mr Perkinson’s death a handwritten note (the document)

dated 4 December 2009 was found at his address. The document states:

I Lawrence Perkinson of Fuller Street, Ngaruawahia, wish to honour my promise to Mere Rina Perkinson and that this home and contents be given to her first grandchild Olivia Paige and youngest daughter Jazmine Clark Cook to be shared equally.  I wish that Katarina Kelsey of 8 Front Miranda Road, Waitakaruru have sole responsibility of all and any transactions associated with this home, if she so wishes.

Dated this day 4.12.09 Lawrence Perkinson.

[5]      Ms Kelsey is the daughter of Mere Rina Perkinson (Mere).  Mr Perkinson and Mere entered into a relationship in 2004 and they married in May 2007.  Ms Kelsey came to know Mr Perkinson through his relationship with her mother.

[6]      Mere had five children, including Kelsey, before she met Mr Perkinson.  The youngest of those five children is Jazmine Clark Cook.

[7]      Prior to Mr Perkinson’s relationship with Mrs Perkinson, he had a child, Erina

Perkinson, with a former partner, Rana Paraha.   Ms Kelsey understands this was

Mr Perkinson’s only biological child.   In 2006 Mrs Perkinson was diagnosed with a brain tumour and lung cancer, and later with leukaemia.

[8]      Ms  Kelsey  deposes  that  after  Mere  became  terminally  ill,  the  two  had discussions about what would happen after Mere’s death. Ms Kelsey also had similar discussions with Mr Perkinson in which he said that she and her siblings would be taken care of in the wills of her mother and Mr Perkinson.  At that time, Mere and

Mr Perkinson executed mirror wills (the February 2008 will).

[9]      The will Mere executed in February 2008 is no longer available.  The will

Mr Perkinson executed in February 2008 relevantly provided as follows:

I appoint Michael John Taniora as the executor and trustee of this will.  … I

direct that my trustee to hold the whole of my estate on trust.

To my wife Rena Mere Perkinson I hereby bequeath all my assets and possessions known and unknown and to distribute any of my possessions to my children as she feels necessary.

[10]     When Mrs Perkinson became ill Ms Kelsey and her daughter Olivia Paige moved in to look after her.   Mrs Perkinson died on 6 March 2008.   Ms Kelsey supported Mr Perkinson who was badly affected by Mrs Perkinson’s death. Ms Kelsey left the home in May 2008 but continued to have regular contact with Mr Perkinson on a weekly basis. When she visited him she was accompanied by her daughter Olivia.

[11]     Ms Kelsey says that both before and after her mother died Mr Perkinson would tell her that Olivia and Ms Kelsey’s youngest sister Jazmine would be provided for after he died.

[12]     Ms Kelsey says that in mid to late December 2009 Mr Perkinson went to see his daughter Erina in Whangarei and while he was there he transferred a “significant sum of money” from his credit card to Erina’s mother.  He then travelled to Rotorua to see his mother and his brother. Ms Kelsey says that she was surprised by this at the time because she understood he did not have a good relationship with them.

[13]     Ms Kelsey, who has clearly known Mr Perkinson for some time, says the document was written by him.  Further, the handwriting on the document looks the same as the signature.  Attached to Ms Kelsey’s affidavit is a copy of an earlier will that Mr Perkinson executed. The signature on that will looks the same as the signature on the document.

[14]     These applications are to be assessed according to the civil standard of proof Re Campbell (the deceased).1  I find it more probable than not that Mr Perkinson wrote the document.

Relevant law

[15]     Section 14 of the Wills Act 2007 empowers the Court to validate a will that does not comply with the requirements for a valid will.  To succeed, s 14 contains essentially a two-part test. First, as to the document itself, under s 14(1) the applicant must prove there is a document that:

(a)       appears to be a will (which is defined in s 8 of the Act); (b)    the document does not comply with s 11; and

(d)      the document came into existence in or out of New Zealand.

[16]     Secondly, as to the deceased’s intentions, under s 14(2) the applicant must prove the document expresses the deceased person’s testamentary intentions.

[17]     Accordingly, the focus of s 14 is on the document’s substance and intention: 2

A person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities. The Court should give effect to the intention of the person who purported to make a will.  However, it must be clear on the balance of probabilities that the document is intended to express the deceased person’s testamentary intentions.

Factors relevant to s 14(1)

[18]     The assessment is concerned with the content of the document and what it conveys, rather than its form.3

[19]     There is no requirement that a document be headed or described as a will, or appear in its final form as the “particular document that the deceased intended to be

their will”.4    The essential enquiry is whether the document does all or any of the

1      Re Campbell (the deceased) [2014] 3 NZLR 711 at [22].

2      Re Estate of Wong [2014] NZHC 2554 at [24].

3      Re Campbell [2014] NZHC 1632 at [10].

4      Re Estate of Parsons [2015] NZHC 3113 at [14].

things ascribed in the definition of the word “will” in s 8 of the Act.5   In Re Estate of Wong a suicide note which was not identified specifically as a will, but contained instructions to a friend about disposing of property, was held to be a will.6  In Re Estate of Ferron and Re Estate of Rowell a solicitor’s notes of a deceased’s instructions for a will (taken over the telephone) were held to be a will.7

[20]     There have been cases where informal suicide notes have been held to be wills under s 14. For example, in Re MacNeil a handwritten and signed suicide note left by a deceased was held to be a will,8 and in Re Estate of Wells a number of signed and unsigned documents on the kitchen table left by the deceased disposing of his property and identifying the people responsible for managing his estate was held to be a will.9

[21]     In the present case, the applicant acknowledges that much like in Re Estate of Wong Mr Perkinson does not appear to dispose of property to his personal representative. Nevertheless, I accept the applicant’s submission that although the words Mr Perkinson used are informal, on plain reading of the tenor of the document it is clear he intended: (a) for the deceased’s property at 2 Fuller Street, Ngaruawahia, and contents to be disposed of to Jasmine and Olivia equally; (b) for the applicant to act as an executor and administrator of the estate to oversee this transaction by disposing of the property according to the document; and (c) that the disposition of the property would follow his impending death by suicide. Accordingly, I also accept the applicant’s submission the document has the crucial features of a will as set out in s 8(1)(b) of the Act.

[22]     Accordingly, I am satisfied the document appears to be a will for the purposes of s 14(1)(a) of the Act insofar as it: (a) disposes of property that was owned by

Mr Perkinson at the time of his death to Jasmine and Olivia equally; and appoints the applicant as executor to have the “sole responsibility of all any transactions associated

with this home if she so wishes”.

5      Re Campbell [2014] NZHC 1632 at [15].

6      Re Estate of Wong [2014] NZHC 2554.

7      Re Estate of Ferron [2012] NZHC 44, [2012] 2 NZLR 551; Re Estate of Rowell [2012] NZHC

1823.

8      Re MacNeil (2009) 10 NZCPR 770 (HC).

9      Re Estate of Wells [2012] NZHC 74.

[23]     There is clearly an absence of proper attestation and witnessing which means the document does not comply with s 11 of the Act.10    The document came into existence in New Zealand.11

Section 14(2):   Does the document convey the testamentary intentions of the deceased?

[24]     Under s 14(2) the Court must be satisfied the document expresses the deceased person’s testamentary intentions. As observed by Professor Peart:12

The test in s 14 is not an objective one. It is specific to the particular deceased person. No two cases are necessarily the same. The wills may suffer from the same defects, but in one case the Court may conclude that the document does express the deceased’s testamentary intentions, whereas in the other it does not.  The Court must be satisfied to the ordinary civil standard of proof that the evidence as a whole, including any evidence of the will maker’s statements and testamentary intentions, shows that the document expresses the deceased’s testamentary intentions.

[25]     Under s 14(3) the Court may consider the document, evidence of its signing and witnessing, evidence of the deceased’s testamentary intentions, and evidence of statements made by him.13

[26]     The circumstances s 14(3) sets out are not exhaustive. Whether the document conveys a deceased’s testamentary intentions is to be determined by a consideration of all of the circumstances including those set out in s 14(3).14   Any evidence which may assist to determine whether the document expresses the deceased person’s testamentary intentions may be taken into account.   Evidence often includes: (a) evidence of the circumstances in which the document came to be prepared; (b) the reasons why the document was not properly signed and witnessed; or (c) any prior representations made by the deceased.   For example, in Re Beaumont the Court

determined that the terms of the document purporting to be the deceased’s new will

10     A requirement of s 14(1)(b).

11     A requirement of s 14(1)(c).

12     Approved by the Court in Re Campbell (Deceased) [2014] NZHC 1632 at [16], and Re Estate of

Wong [2014] NZHC 2554 at [21].

13     Re Estate of Wong [2014] NZHC 2554 at [19].

14     Re Campbell (Deceased) at [15].

were consistent with the wishes that the deceased had earlier expressed to her children.15

[27]     The Court cannot decline to validate a will because the terms are unfair or in breach of a legal or moral duty.16   Good reasons would have to exist to decline to validate a non-compliant will that the Court was satisfied expressed the testamentary intentions of the deceased.  To decline to validate in those circumstances would be to defeat the purpose of s 14 and disregard the will maker’s testamentary intentions.

[28]     In the present case, the applicant does not stand to benefit under the document. Rather  it  is  Olivia,  being  Mr  Perkinson’s  step-grandchild  (and  Jazmine,  being

Mr Perkinson’s step-daughter) who are the beneficiaries under the document.  The applicant’s uncontested evidence is that Mr Perkinson represented to her that he would provide for Olivia and Jazmine.  This is consistent with the terms of the document which stated that Mr Perkinson wished “to honour (his) promise to Mere” by providing for Olivia and Jazmine.

[29]     I accept the applicant’s submission that Mr Perkinson’s representations to the applicant are consistent with his intentions as set out in the earlier February 2008 will. For example, the February 2008 will provides that the trustee (being the respondent) is to hold the whole of his estate on trust for his wife Mere Rina Perkinson who is to distribute any of his possessions to his children, as she thinks necessary.  At the time of Mr Perkinson’s death he only had one biological child, being Erina.  Mere was unrelated and had no connection with Erina.  In the ordinary reading of the February

2008 will it is clear that Mr Perkinson intended ultimately to provide for his step- children arising from the marriage to Mere rather than Erina.  When Mere died on

6 March 2008, because of the construction of the old will any provision to Mere to distribute amongst her children failed. Therefore the residuary estate would have been subject to the provisions of s 77 of the Administration Act.  I accept the applicant’s submission that it is fundamentally flawed or illogical to suggest that Mr Perkinson intended that his estate would be distributed in accordance the provisions of the

Administration Act. This would defeat the purpose of executing a will.

15     Re Beaumont [2013] NZHC 2719 at [22].

16     Balchin v Hall [2016] NZHC 837.

[30]     The applicant submits the document was signed and dated by Mr Perkinson in contemplation of his impending death by suicide.  The document was written on 14

December 2009 and Mr Perkinson was found dead on 3 January 2010.  There is not an immediate connection in time between the document and his death. However, there is a relatively close connection in time between the two events.  Further, in between those two events there is evidence Mr Perkinson took specific steps to visit family members with whom he usually did not have contact which is consistent with him preparing for impending death.  He also visited his biological daughter and gave her money, which again is consistent with impending death.

[31]     I am satisfied that the execution of the document on 4 December 2009 was one of the initial steps Mr Perkinson took in contemplation of his impending death approximately one month later.

[32]     There is no evidence to suggest Mr Perkinson lacked testamentary capacity. The document shows he gave clear thought to how his property was to be disposed of, and provides for how the property should be dealt with, and who should benefit from his estate.  All of which is consistent with Mr Perkinson’s expressed intentions that Olivia and Jazmine would be provided for from his estate.

[33]    The wishes of Mr Perkinson as expressed in the document accord with representations he had made earlier to the applicant.   I am satisfied the document reflects Mr Perkinson’s testamentary intentions.

[34]     Accordingly, the evidence satisfies all the requirements of s 14.   I find the document is a valid will under s 14 of the Act.

Duffy J