Khan v Knox - [2022] NZHC 2577

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-1

[2022] NZHC 2577

IN THE MATTER of an originating application under Part 19 High Court Rules 2016

IN THE MATTER

of an application to validate a Will

IN THE MATTER

of the Estate of Adrienne Judith Elizabeth Peacock

BETWEEN

JAMAHL SEAN KHAN and JOHN PEACOCK

Applicants

AND

SARAH KNOX, MURRAY DOWNS and SALEEM PAUL KHAN

Respondents

Hearing: 26 July 2022

Counsel:

D M O’Neill for Applicants

E A Schwikkard for Respondent Saleem Khan E C Macpherson and D P Shore for the Estate C M Earl for minor children

J Niemand for minor grandchildren

Judgment:

6 October 2022

JUDGMENT OF BREWER J

This judgment was delivered by me on 6 October 2022 at 2 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

KHAN &PEACOCK v KNOX & ORS [2022] NZHC 2577 [6 October 2022]

Introduction

[1]Ms Adrienne Judith Elizabeth Peacock died suddenly on 17 September 2021.

[2]Ms Peacock made a Will in regular form in 2005.

[3] After her death, Ms Peacock’s computer was found to contain in electronic form three Wills each marked “Draft”. Two were drafted in 2014 and one was dated 20 September 2016. In addition, among her papers, was a handwritten document dated 30 July 2017 (the 2017 document). It says:

30th July 2017

I, Adrienne Judith Elizabeth Peacock, being of sound mind and body, do write this my Last Will and Testament should I become unable to communicate.

That my son Jamahl Sean Khan purchases my house for the sum of
$150,000.00. This amount is then to go to my son Saleem Paul Khan. [Signature of Ms Peacock]

[4] Mr Jamahl Khan and Mr John Peacock apply for orders that the electronic draft Will dated 20 September 2016 and the 2017 document are respectively Ms Peacock’s valid Will and a valid change to the Will.1

[5] The application is opposed by Mr Khan’s brother, Mr Saleem Paul Khan (who has changed his name to Samuel Jay Steel so I will refer to him as “Mr Steel”).

[6] Mr Steel’s position is that the 2016 draft Will represents Ms Peacock’s final testamentary intentions and the 2017 document should not be recognised as a valid change to them.

[7] Mr Earl and Mr Niemand appeared on behalf of Ms Peacock’s grandchildren (all minors). They abide the decision of the Court.

[8] As I will come to, both Mr Khan and Mr Steel, through affidavits, present the Court with their views of their somewhat fraught family history. Each does so in

1 There are other related orders sought. I will come to them as and if required.

support of their competing contentions on what Ms Peacock’s testamentary intentions were likely to be. As I said to counsel at the outset of the hearing, this is not a claim under the Family Protection Act 1955. It is a specific inquiry under the Wills Act 2007 (the Act). I will…

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 Khan v Knox

Details

AGLC: Khan v Knox [2022] NZHC 2577
Case: [2022] NZHC 2577
Decision Date: 6 October 2022

CaseChat Overview and Summary

The applicants, Jamahl Sean Khan and John Peacock, sought orders validating two documents as Adrienne Judith Elizabeth Peacock’s (Ms Peacock) Will and a change to her Will, respectively. The respondents, including Mr Peacock’s brother, Saleem Paul Khan, opposed the application. The central issue was whether the 2016 draft Will and the 2017 document reflected Ms Peacock’s testamentary intentions at the time of her death, given neither complied with the formal requirements of a valid Will. The Court considered various factors, including the circumstances of the document’s creation, prior testamentary intentions, and changes in Ms Peacock’s life and circumstances. The Court found that while the 2016 draft Will and the 2017 document appeared to reflect Ms Peacock’s intentions at certain points, they did not necessarily represent her intentions at the time of her death. The application was dismissed, and the 2005 Will was declared the valid Will. However, it was acknowledged that the 2005 Will did not reflect Ms Peacock’s final testamentary intentions.

Orders