Khophimai v Laurenson - [2018] NZHC 2435

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2017-441-37 [2018] NZHC 2435

UNDER Section 14 of the Wills Act 2007

IN THE ESTATE

of KELVIN JOHN NORMAN NAYSMITH (also known as KELVIN JON NAYSMITH (deceased)

BETWEEN

PHENSRI KHOPHIMAI Applicant

AND

CARLENE ELIZABETH LAURENSON, BRENT NAYSMITH, GARY JOHN NAYSMITH, DEBORAH ANNE NAYSMITH, KIM BEVERLEY HERBST, LEANNE NAYSMITH AND WAYNE NAYSMITH

Respondents

Hearing: 19 March 2018

Appearances:

Z Tope for Applicant
C E Laurenson in Person

Judgment:

17 September 2018

JUDGMENT OF CLARK J

I direct delivery of this judgment at
10.30 am on 17 September 2018

KHOPHIMAI v LAURENSON NAYSMITH, NAYSMITH, NAYSMITH, HERBST, NAYSMITH AND NAYSMITH [2018] NZHC 2435 [17 September 2018]

Introduction

[1] When Kelvin Jon Naysmith died on 18 September 2013 he left his estate to

Ms Phensri Khophimai. A document dated 7 June 2013 appearing to be

Mr Naysmith’s will was signed by one witness. A valid will is required to be signed by two witnesses. Ms Khophimai has applied to the Court for a declaration the document is a valid will.

[2] Mr Naysmith’s seven children, who are represented by Ms Laurenson, oppose

Ms Khophimai’s application. They say their father was old with failing health at the time the document was signed. They say further that, contrary to her claim,
Ms Khophimai was not Mr Naysmith’s de facto partner and she exerted undue influence upon him. In fact, they say the document is a forgery because the signature is not Mr Naysmith’s handwriting.

[3] These are the claims I must assess in reaching a conclusion about the validity of the will.

The application

[4] By her application dated 7 April 2017 Ms Khophimai applies for a declaration pursuant to s 14 of the Wills Act 2007 that the document dated 7 June 2013 and signed by Mr Naysmith on 8 June 2013 is the valid will of the deceased Kelvin Jon Naysmith.

[5] The grounds for the application are that Ms Khophimai is the sole beneficiary under the will. The document is signed and dated and clearly expresses Mr Naysmith’s testamentary intentions. The document does not comply with s 11 of the Wills Act which prescribes the requirements for the validity of wills as the document bears only the signature of one witness.1

[6] Ms Khophimai’s affidavit in support of her application addresses a formal complaint made by Ms Laurenson to the New Zealand Police following
Ms Laurenson’s receipt of a report by Michael Maran, a handwriting expert, who

1 Wills Act 2007, s 11(4).

concluded Mr Naysmith’s signature was “non-genuine” and “an attempted simulation”.

[7] As a consequence of the complaint a senior document examiner with the New Zealand Police evaluated Mr Maran’s report and conducted her own examination of samples of Mr Naysmith’s handwriting and his witness’s signature. I shall return to both reports.

Grounds of opposition

[8] The respondents oppose the application for an order that the document is a valid will. The essence of…

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.

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Details

Case: [2018] NZHC 2435
Decision Date: 17 September 2018

CaseChat Overview and Summary

Khophimai v Laurenson is a case about the validity of a will. The deceased, Kelvin Jon Naysmith, died in 2013, leaving behind a document dated 7 June 2013, which he had signed on 8 June 2013. The document left everything to Phensri Khophimai. The document was witnessed by only one person, Rodney Stone. Naysmith’s children, represented by Carleen Laurenson, opposed the validity of the will, arguing that it was not properly signed, that Khophimai was not Naysmith’s de facto partner and that she had exerted undue influence on him. Khophimai applied to the Court for a declaration that the document was Naysmith’s valid will. The Court was required to decide whether the document expressed Naysmith’s testamentary intentions, whether Naysmith had testamentary capacity, and whether he was unduly influenced by Khophimai. The Court preferred the evidence of Patricia James, a senior document examiner with the New Zealand Police, over that of Michael Maran, a handwriting expert called by the respondents. James concluded Naysmith’s signature was genuine, whilst Maran concluded it was an attempted simulation. The Court found that Naysmith had testamentary capacity and was not unduly influenced by Khophimai. The Court concluded the document expressed Naysmith’s testamentary intentions and granted the application for a declaration the document is the valid will of Kelvin Jon Naysmith. Khophimai is entitled to costs on a 2B basis.

Orders