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…

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 Kelsey vv Taniora

Details

AGLC: Kelsey vv Taniora [2017] NZHC 3234
Case: [2017] NZHC 3234
Decision Date: 12 December 2017

CaseChat Overview and Summary

The case of Kelsey v Taniora involved an application for a declaration that the will of Lawrence Perkinson was valid. The applicant, Katarina Kelsey, sought to have the handwritten document dated 4 December 2009 recognised as the valid will of Lawrence Perkinson, who had committed suicide on 3 January 2010. The respondent, Michael John Taniora, the executor and trustee of Perkinson's estate, did not oppose the application.

The central legal issue in this case was whether the document could be recognised as a valid will under Section 14 of the Wills Act 2007, despite it not complying with the formal requirements of a valid will under Section 11 of the same Act. Section 14 of the Act empowers the Court to validate a will that does not comply with the requirements for a valid will if it can be demonstrated that the document expresses the deceased's testamentary intentions.

The Court found that the document was written by Lawrence Perkinson and that it had the crucial features of a will as defined in Section 8(1)(b) of the Act. The document clearly expressed Perkinson's intention to dispose of his property, and appoint Katarina Kelsey as executor to oversee this transaction. The Court was satisfied that the document appeared to be a will, did not comply with Section 11 of the Act, and had come into existence in New Zealand.

Turning to Section 14(2), the Court was required to determine whether the document expressed the testamentary intentions of the deceased. The Court found that the document reflected Perkinson's expressed intentions, which were consistent with his earlier representations to Kelsey, and that the document was signed and dated by Perkinson in contemplation of his impending death by suicide. The Court was satisfied that the document expressed the deceased's testamentary intentions and was a valid will under Section 14 of the Act.

The Court granted the application and declared the document to be the valid will of Lawrence Perkinson.

Orders