Kirner v Falloon
[2015] NZHC 1873
•10 August 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-409-000133 [2015] NZHC 1873
UNDER Section 14 of the Wills Act 2007 IN THE MATTER OF
the Estate of RACHEL GLORIA KIRNER
BETWEEN
RIANA SARAH KIRNER Applicant
AND
GEOFFREY ALAN FALLOON AND MICHAEL HERBERT RATTRAY Respondents
Hearing: 23 July 2015
31 July 2015 (further telephone conference)
Appearances:
R Peters for Applicant
B Green and J Morgan for RespondentsJudgment:
10 August 2015
JUDGMENT OF DAVIDSON J
The application
[1] The applicant, Ms Riana Kirner (Riana), has applied for a declaration under s 14 of the Wills Act 2007 (the Act) that a document with the date “13-12-13” (the
2013 Document) is a valid Will of Ms Rachael Kirner (the Deceased). Additionally, Riana seeks a grant of probate in solemn form in relation to the Will she seeks to be declared valid, and an order that costs be paid from the estate of the Deceased. If the Will is not validated, the Deceased’s Estate will devolve on an intestacy.
[2] The application is opposed by the respondents, Messrs Geoffrey Falloon and
Michael Rattray, who are the administrators of the Estate of George Arthur Kirner
(George), Riana’s father, who died on 25 June 2014.
KIRNER v FALLOON AND RATTRAY [2015] NZHC 1873 [10 August 2015]
[3] I must determine whether the document in question should be declared a valid Will under s 14. In doing so I must determine whether the s 14(1) ‘gateway’ has been passed. This requires the applicant to establish that there is a document that appears to be a Will, does not comply with s 11 of the Act, and came into existence in or out of New Zealand. If these requirements are established, the applicant must satisfy the Court to the civil standard that “the document expressed the deceased
person’s testamentary intentions”.1
Background
Status of Riana’s father
[4] It is first important to set out the position of George, who was the husband of the deceased. He executed a Will on 26 June 2014, some six days after the death of his wife, and only two days before his own death. His trustees say that this Will was executed in the expectation that he was the sole beneficiary of the Deceased’s estate by virtue of an intestacy.
[5] While not determinative, the practical value of this proceeding is questionable. A letter written by the respondents dated 6 May 2015 recorded that the value of the Deceased’s estate at her death was approximately $102,088.96. After payment of funeral expenses and debts, the total amount for distribution would be approximately $90,000. The value of George’s distributable estate after payment of debts and funeral expenses would be approximately $30,000.
[6] The letter then moves to consider the net benefit Riana would receive under each of three possible outcomes. The first is if the 2013 document is not validated and the Deceased’s estate would pass to George. In this situation, his total estate would be $120,000. From this, legacies of $55,000 would be paid, before Riana received the residue of $65,000. The second is if the Will was validated, the Deceased’s estate passes to Riana who would receive a net benefit of $90,000. However, George’s estate would be insufficient to pay the legacies in his Will. The
third is the same as the second, except the estate of George may be compelled to
1 Wills Act 2007, s 14(2).
make a claim under the Property (Relationships) Act 1976. If the claim was successful, the practical result for Riana would be the same as the first.
[7] There is some dispute as to the relationship of the Deceased and George at the date of death of the Deceased. It seems to be Riana’s position that they were separated at the time the Deceased passed, but their marriage had not been formally dissolved. On the other hand, Mr Rattray has deposed:
I was not aware of any fact supporting that George or Rachael [(the Deceased)] had separated and understood they were both living at Culverden, and had the same postal address until Rachael’s death.
[8] Annexed to the affidavit is a copy of the death notice placed in the
Christchurch Press, which tends to lend credence towards this statement:
KIRNER, George Arthur – passed away, June 28 2014. Loved husband of the late Rachael Kirner (nee Guthrie), much loved father of Riana, Frank, Mariana and the late Leanne Kirner. much loved brother and brother-in-law of Ana and Toka, and John and Judy Te Kiri and a dearly loved Uncle by his nieces and nephews. …
[9] On the limited evidence before me, I would conclude that it is more likely than not that George and the Deceased had not, in any lasting sense, separated at the time of the Deceased’s death.
Riana’s position
[10] Riana is the daughter of the Deceased. Her sister sadly died in 2006, and a memorial book was set up. In that memorial book, Riana says she found a document written by the Deceased, dated 13 December 2013. Though the original of the document has not been produced, a copy has. The document records:
13-12-13
I Rachael Gloria Kirner (Guthrie)
Bequeath my belongings, my assets to go to my surviving daughter Riana
Sarah Kirner only.
NOT to George Arthur Kirner (Te-Kiri) Accounts:
Kiwisaver – Bond
Westpac
BNZ
Indoor furniture is all in my name apart from George’s bed & laptop.
Shed & garage belongs to George. Name: Rachael Gloria Kirner (Guthrie) Signed: [signed]
Witnessed by: [signed]
signed: [initialled “A.J”]
13-12-13
[11] Riana says that the Deceased wrote her a letter. From the information available, it appears the letter was written in the same book as the 2013 document. Much of the content in the letter is personal to the relationship between Riana and the Deceased, but relevantly records:
Riana, when my time comes, everything I have, my assets, my furniture, it goes to you.
Its why your father & I don’t have joint accounts. I don’t trust Buck, Frank
& Mariana not to go after what belongs to you!
I will make a Will up stating that my belongings MUST go to you.
[12] It is Riana’s position that this document meets the requirements of s 14(1) and manifests the testamentary intentions of the deceased. Counsel for Riana referred me to several cases in support of the application.2 For present purposes, however, the general position is accurately captured in the following passages of submissions:
10.It is submitted that the judicial comment in Estate of Pinker v Pinker is that the overall purpose of s 14 is “to validate documents which plainly express the testamentary wishes of a deceased person. Its
2 Estate of Pinker v Pinker [2015] NZHC 660, (2015) 30 FRNZ 174; Re Estate of Hickford
(deceased) HC Napier CIV-2009-441-369, 13 August 2009; Re Estate of Paterson [2015] NZHC
20; Re Estate of Rooney [2015] NZHC 461; Re Estate of Beattie [2015] NZHC 570; Re Estate of
Cleven [2015] NZHC 966.
purpose is to “cure non-compliance” rather than declare “a
wholesale absence of a will””.
11. The will was written by the testatrix in a book which was of importance to the family. The will was immediately preceded by a personal letter written by the Testatrix to the Applicant, reinforcing her testamentary intentions.
12. It is submitted the Will complies with s 14(1) of the Act.
[13] At the eleventh hour in this proceeding, when the substantive hearing began on 23 July 2015, Riana sought to produce from the Bar evidence of an email which came “out of the blue” from “AJ”, who is said to be the person who witnessed the
2013 document. I declined to read the email on the basis there was a dearth of information regarding its origin, provenance, authorship and authenticity, and it was not otherwise admissible under the rules of evidence. By a minute of 24 July 2015, I granted leave to Riana to make a case for the admission of that email, and for the
respondents to reply.3
[14] I received submissions from both counsel on the point. I do not engage in a detailed analysis of those submissions; I have overwhelmingly concluded that it would not be appropriate for the Court to receive the email as evidence. The reasons for this decision are sufficiently captured in submissions filed on behalf of counsel for Riana:
9. As regards the email received on 17 July 2015, I agree that I could
not assume that it was genuine either as to origin or content. …
…
13.However, a difficulty has arisen that the author of the email has not replied to any further messages including my requests for her telephone number so that I can contact her. A search of the White Pages indicates there are over thirty people in the district with the surname “James”. Time constraints have not made it possible for me to undertake any further inquiry.
[15] I agree with the submissions of counsel for the respondents, Mr Green, that I “must have serious doubts as to the provenance and evidential value of the email”. Thus, consideration of that email (which I have neither sighted nor considered),
forms no part of my reasoning.
3 Re the Estate of Kirner HC Christchurch CIV-2015-409-000133, 24 July 2015 (Minute).
The respondents’ position
[16] The respondents resist the application, effectively on the basis that Riana has failed to prove to the civil standard that the 2013 document represents the testamentary intentions of the Deceased. Their position is succinctly set out in written submissions:
12It is respectfully submitted that there is inadequate and insufficient evidence before the Court to establish on the balance of probabilities that the document expresses the deceased’s intentions and therefore the Court cannot validate this document as a will.
13 The shortcomings in respect of the documents produced include:
(a) The document is not expressed to be a will or the Last will; (b) There is no evidence as to enquiries made or searches
undertaken by or on behalf of the Applicant for a will or later dated testamentary document to substantiate the Applicant’s testimony that she believes that this document is a copy of the deceased’s last will;
(c) In the opening paragraph of the copy document exhibited there appears to be a change (albeit slight) in that the handwriting style and font after word “daughter”. This change might be more clearly discerned from an examination of the original, these words could have been added at a different time;
(d) There is no evidence, nor any corroboration of evidence, that:
(i) the document is written in the hand of the deceased; (ii) the signature appearing in the document is that of the
deceased;
(e) There is no statement with effect that either witness was present when the document was signed by the signatory to it, to confirm that the document was signed by the deceased;
(f) There is no statement in the document that the witnesses were together with the signatory to the document, in her presence when she signed it, and in the presence of each other when they signed it, nor is there … an affidavit of Due Execution before the Court to give such evidence; and
(f) The witnesses are not identified or readily identifiable and one signature appears only to be an initialling. Indeed there might conceivably be only one witness.
(g) There is no evidence as to the deceased’s testamentary
intentions.
…
15In summary, there are so many shortcomings and deficiencies in the evidence before the Court, it is submitted that the Court cannot make an order validating this will pursuant to section 14 of the Act.
[17] Mr Rattray has sworn an affidavit in support of the opposition. Its relevant effect can be stated shortly. On 3 July Michael met with Riana to discuss the estates of her father and the Deceased. On 24 July he was requested to cease acting for Riana in relation to the estate of the Deceased. On 4 August, he received a letter from Ms Loversidge, a solicitor at Pegasus Bay Law Ltd, stating that she had been instructed by Riana.
The law
Legislation
[18] Two sections of the Act are relevant. The first is s 11, which sets out the requirements for a valid Will:
11 Requirements for validity of wills
(1) A will must be in writing.
(2) A will must be signed and witnessed as described in subsections (3)
and (4).
(3) The will-maker must—
(a) sign the document; or
(b) direct another person to sign the document on his or her behalf in his or her presence.
(4) At least two witnesses must—
(a) be together in the will-maker's presence when the will- maker—
(i) complies with subsection (3); or
(ii) acknowledges that—
(A) he or she signed the document earlier and that the signature on the document is his or her own; or
(B) another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b) each sign the document in the will-maker's presence.
(5) As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker's presence, the following:
(a) that he or she was present with the other witnesses when the will-maker—
(i) signed the document; or
(ii) acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or
(iii) directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or
(iv) acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b) that he or she signed the document in the will-maker's presence.
(6) No particular form of words is required for the purposes of subsection (5).
[19] The second is s 14, which provides that, where the requirements for validity are not complied with, there nonetheless exists power to validate a document purporting to be a will:
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.
Authorities
[20] The proponent of the purported will, Riana, bears the onus of establishing on the balance of probabilities that the requirements of s 14 have been made out.4 This requires the proponent to adduce sufficiently cogent evidence for the Court to be satisfied that burden of proof has been discharged.5 The ultimate issue to which s 14 applications devolve is an analysis of whether it has been shown that the propounded document is an accurate literary manifestation of the deceased’s testamentary intentions.6 In each case, this analysis must, by the idiosyncratic nature of testamentary dispositions, focus upon the particular testator and the unique facts of any given case.7
[21] Whata J set out the approach to be taken to such applications in Re Estate of
Feron, which His Honour has refined in subsequent cases as follows:8
(a) a robust approach to the application of s 14 is called for (referring to
Re Estate of Murray);
(b)the ostensible purpose of s 14 is to validate documents that plainly express the wishes of a deceased person; and
(c) provided that the intentions of the will-maker are clear, s 14 can be curative of any technical non-compliance.
[22] It appears from a review of the authorities that a robust approach to such applications has been taken. While the s 14 power is both broad and remedial in
purpose, the adoption of a robust approach still requires this Court to carefully
4 Re Capper [2012] NZHC 2864 at [4].
5 Re Hickford HC Napier CIV-2009-441-369, 13 August 2009 at [11]; Gladwin v Public Trust
[2011] 3 NZLR 566 (HC) at [21]; Re Brown HC Auckland CIV-2010-404-6328, 13 October
2010 at [18].
6 Lauder v Lauder [2012] NZHC 3155 at [9]; Re Estate of Feron [2012] NZHC 44, [2012] 2
NZLR 551 at [11].
7 This point was well made in Nicola Peart “Where there is a will there is a way” (2007) 15
Waikato Law Review 26 at 35, cited in Re Estate of Campbell [2014] NZHC 1632, [2014] 3
NZLR 706 at [17].
8 Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11], citing Re Estate of Murray HC Masterton CIV-2011-435-178, 20 December 2011. The formulation is this case was refined in Wheeler v Somerfield [2015] NZHC 1269 at [12] and Watt v Owston-Doyle [2015] NZHC 1292 at [12].
consider whether the evidence put before it, considered in aggregate, is such that it can be satisfied that the document put before it, said to be a Will, does actually reflect the testamentary intentions of the deceased.
[23] It is wrong in my view to take a more relaxed approach to this requirement in cases where the orders are sought by consent, or where an application is unopposed. For at this point, irrespective of opposition, the deceased is unable to speak for himself or herself. As the Law Commission stated:9
… great care should be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so, because when a will operates (on a will-maker’s death) he or she is no longer present to speak for himself or herself
[24] There will be real consequences and often people affected by the exercise of the s 14 power. That said, I readily acknowledge the utility of the provision. This point was, in my view, well made by MacKenzie J in Re Estate of Campbell:10
[4] Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills. Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode of expression did not comply with the formalities that the law required. Section 14 has been very beneficial in avoiding that outcome. Its utility is demonstrated by the fact that it has been invoked in over 80 cases since 2007.
[5] The experience of this Court has been that, for the most part, the families and other beneficiaries who would be affected by the validation of a document have acknowledged the justice of giving effect to the clearly but informally expressed intentions of the deceased, by consenting to, or at least not opposing, the validation. As a consequence, a considerable body of case law has built up from decisions by judges on uncontested applications, without the benefit, normally inherent in the adversary system of litigation, of the assistance of submissions from counsel on both sides of the argument.
[25] The latter paragraph reinforces the concerns to which the Court must be alive. Consent, or lack of opposition, cannot overbear the intent of the deceased. The touchstone of justice in cases such as this is not what the parties consider to be the
best, most equitable, or just manner of distributing an estate. The real point and
9 Law Commission Succession Law – A Succession (Wills) Act (NZLC R41, 1997) at 1.
10 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706.
purpose is to ensure the intentions of the deceased are given effect. But, perhaps in spite of this, MacKenzie J went on to state:
[18] The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person's testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will, or on an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which would otherwise occur to take place. The preponderance of successful applications suggests that this Court recognises it as appropriate to give effect to the contents of the document in preference to the disposition, which the deceased person has, by the document, shown a wish should not apply.
[26] I consider the essence of the remedial purpose at which s 14 is aimed is
succinctly captured in Asher J’s judgment in Re Estate of Wong:11
[24] The great benefit of the reform in s 14 is that it takes the eye of the Court away from form and makes it focus on substance and intention. 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.
[27] It is against this backdrop that resolution of this proceeding lies.
Resolution
[28] The requirements of s 14(1) of the Act have been met, and there is no need to expand upon them further. The most vexed issue in this proceeding is whether Riana has satisfied the Court, on the balance of probabilities, that the 2013 document reflects the testamentary intentions of the Deceased. I have come to the firm view that she has not. The lack of any credible evidence that the document expresses the Deceased’s testamentary intent is at the heart of my judgment. Otherwise, the essential reasons for this conclusion are captured in the submissions of counsel for the respondents (see above at [16]).
[29] In particular, I have been influenced by:
11 Re Estate of Wong [2014] NZHC 2554.
(a) The questions put by the Court as to the origins, provenance and authenticity of the 2013 document, and lack of any answer which has evidential import. There is no explanation as to the delay between the creation of the document and its subsequent discovery. The fact that the document propounded was, and appears to always have been, in the possession of the proponent requires the Court to take stock and carefully consider why that is so. I draw no adverse inference, but this is not a matter to which the Court can be altogether blind.
(b)That no evidence has been put before this Court that could take it any way to concluding that the 2013 document was either written by the Deceased (that it is in her hand), or that the signature is hers. I have also had regard to the observation of the respondents that there appears to be a change in handwriting style in the letter, but give that little weight.
(c) Other than the document itself, the only evidence of testamentary intention I have been able to glean is that the Deceased intended George to benefit by way of an intestacy. The notice in the death column indicates that their relationship was loving and caring. George drafted and executed his Will on the premise that he would have sufficient funds (from the Deceased) to make the specific gifts he made. The inference is that he was labouring under the apprehension that nothing had changed between him and the Deceased.
(d)The circumstances surrounding the late emergence of the supposed email from the witness, “AJ”, seem to me to be, at best, requiring further investigation, and at worst, opportunistic. This is particularly so given the fact that attempts to contact her in person came to nothing. While I have not seen the email, I consider the general tenor of the correspondence, and the manner in which the parties have approached this issue, to put the Court on notice as to the curious way in which this issue emerged.
[30] This proceeding ultimately devolves to an issue of proof. The application could only succeed if Riana could establish on the balance of probabilities that the
2013 document was the manifestation of the Deceased’s testamentary intentions.
For the reasons contained herein, my firm view is that she has been unable to do so.
A possible framework for applications of this kind
[31] This application was unsuccessful due to the inadequacy of evidence filed in support. That evidential failing is not insurmountable. In this case, I set out the steps I consider Riana would have needed to have taken to satisfy the Court that the
2013 document accurately reflected the Deceased’s testamentary intent (if such information was able to be furnished):
(a) Riana’s affidavit would need to provide some narrative as to the finding of the passage of the memorial book, and why the 2013 document was not located for such a long period of time.
(b)A copy (preferably copies) of the Deceased’s handwriting and signature would need to be produced in evidence so the Court could be satisfied that the 2013 document was written in the hand of the Deceased, and signed by her.
(c) An affidavit should be sworn as to the attempts to locate the witness.
(d)If ascertainable, there should be further evidence as to the broad testamentary intentions of the Deceased. In this case, the evidence presented ran counter to the assertion that the 2013 document reflected the Deceased’s testamentary intent. It would be a relatively easy undertaking to get people to whom the Deceased spoke during her lifetime regarding giving her property to Riana, to swear an affidavit to this effect.
[32] It bears repeating that the obligation is incumbent on the proponent to satisfy the Court that the document propounded contains the testamentary intentions of the Deceased. In each case that will be fact specific. The applicant must turn his or her
mind to how that threshold can be surmounted on the unique facts of each case, and adequate evidence produced to do so.
Outcome
[33] The application is declined. Costs are reserved.
…………………………………………
Davidson J
Solicitors:
Pegasus Bay Law, Christchurch
Cameron & Co., Christchurch
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