Kite
[2012] NZHC 2824
•26 October 2012
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV 2012-488-680 [2012] NZHC 2824
UNDER Section 14 of the Wills Act
IN THE MATTER OF the Estate of RIHARI TOHU HEKA BETWEEN RONALD RICHARD KITE
Applicant
Hearing: 26 October 2012 (by telephone) Counsel: R A Williams for Applicant Judgment: 26 October 2012
JUDGMENT OF HEATH J
This judgment was delivered by me on 26 October 2012 at 3.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Rick Williams Associates, PO Box 300-748, Auckland
KITE HC WHA CIV 2012-488-680 [26 October 2012]
Introduction
[1] Mr Ronald Kite seeks an order declaring the “Will” of the late Rihari Tohu Heka, dated 15 November 2005, valid.[1] Application is required because, on its face, the Will does not comply with the formalities to which s 11 of the Wills Act 2007 refers.
[1] Wills Act 2007, s 14(2).
[2] If the validation application were successful, Mr Kite seeks an order granting
Letters of Administration with Will Annexed in his favour.[2]
[2] Administration Act 1969, s 5(1) and High Court Rules, r 27.4 and following.
[3] The applications were referred to me in Whangarei on 8 October 2012. Having reviewed the documents I formed a provisional view that orders were justified. However, I had a concern about whether it was appropriate to make the orders on a without notice basis, having regard to a reference made in counsel’s memorandum of 2 October 2012 to the position of the late Mr Heka’s brother. I invited further submissions on that issue. I received from Mr Williams, for Mr Kite, a memorandum dated 23 October 2012. A telephone conference was held this morning to discuss some aspects of that further. Having regard to the information conveyed to me, I am now satisfied that it is appropriate to make the orders on a without notice basis.
Background
[4] The late Mr Heka died at Whangarei on 20 March 2012, aged 77 years. His closest living relative was a brother (Mr Aperahama Heka) who lives in Northland with his wife. They have two adopted children.
[5] On 15 November 2005, a handwritten Will was signed by Mr Heka. The two witnesses were neighbours, one living in each of the houses adjacent to Mr Heka’s.
They did not sign the Will in the presence of each other and there is a discrepancy of
two days in the dates the Will was executed. Mr Heka appears to have dated the
Will 15 November 2005, while the witnesses dated it on 17 November 2005.
[6] The “Will” fails to comply with s 11 of the Wills Act in two respects: the witnesses did not witness Mr Heka signing the Will, nor did they sign as witnesses in each other’s presence.
The validation application
[7] Section 14(2) of the Wills Act 2007 entitles this Court to make an order declaring the Will valid if it is satisfied that the document expresses the deceased’s person’s testamentary intentions. Section 14 provides:
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.
[8] This Court has held, on a number of occasions, that the jurisdiction should be exercised robustly; or, as Whata J put it In re Estate of Feron[3] “... in a manner that gives full vent to the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person ...”.
[3] In re Estate of Feron [2012] NZHC 44 at para [11].
[9] I have considered affidavits sworn by the sole beneficiary and proposed executor, Mr Ronald Kite, and the two witnesses, Mr Thomas and Ms Tohu.
[10] Mr Kite has annexed the “Will” to his affidavit. While unsophisticated, it plainly intends to operate as a disposition of assets on Mr Heka’s death. To that extent, for the purposes of s 14(1)(a) of the Act, it “appears to be a Will”. The balance of the preconditions to the exercise of the Court’s jurisdiction under s 14(2) are also met: the Will does not comply with s 11 and it came into existence in New
Zealand.[4]
[4] Wills Act 2007, s 14(1)(b) and (c).
[11] Mr Thomas deposes that Mr Heka asked him to come to his home on 17
November 2005 to witness his Will. He did that in Mr Heka’s presence. Mr Thomas also recognised Mr Heka’s handwriting on the document that he was asked to sign. It had already been signed by Mr Heka.
[12] Ms Tohu was asked to come to Mr Heka’s home independently. She signed the handwritten document. Although she gives some (apparently inconsistent) evidence that Mr Heka was handwriting a document that she then signed, in light of Mr Thomas’ evidence and the date that Ms Tohu put on the document, I find that Mr Heka had prepared and signed the Will before she saw it.
[13] The existence of the “Will” first came to light at the late Mr Heka’s funeral. That was held at Potahi Marae at Te Kao on Sunday 25 March 2012. Mr David Kite (Ronald’s brother) had been given the Will for safe keeping by Mr Heka. The Will provides that Mr Ronald Kite is the sole residuary beneficiary of the estate.
[14] While Mr Ronald Kite did not know of the existence of the Will he was not necessarily surprised because, in a conversation with Mr Heka in December 2005, Ronald Kite was told that he intended that he be the beneficiary of the estate. In particular, Mr Heka said that he wanted the land to be passed to a male descendant of the Heka bloodline.
[15] My concern about the position of the late Mr Heka’s brother was whether, if the Will were not declared invalid, he may have a better claim on an intestacy. Mr Williams has referred me to correspondence from solicitors acting for Mr Aperahama Heka, who owns the remaining undivided one-half share in the land with which the Will deals. It is clear that they are prepared to treat with Mr Kite, if he were to be appointed to administer the estate. In those circumstances, I consider that orders can properly be made on a without notice basis.
[16] Leaving the possibility of an intestacy to one side, a sibling is not a person who has standing to bring a claim under the Family Protection Act 1955, in respect of a Will of a deceased.[5]
[5] Family Protection Act 1955, s 3(1).
[17] I am satisfied on the evidence that the Will is valid. A declaration to that effect is to be made.
Application for Letters of Administration
[18] No executor is named in the Will. Ronald Kite, as residuary beneficiary, applies for an order that Letters of Administration with Will Annexed[6] be granted in his favour on the grounds that no executor has been named in the Will. Reliance is placed, in particular, on s 5(1) of the Administration Act 1969 and r 27.26(1) of the High Court Rules:
[6] High Court Rules, r 27.25. The application is made under r 27.4, in common form: r 27.31(1).
5 Probate jurisdiction of High Court
(1) The Court shall continue to have jurisdiction and authority in relation to the granting and revoking of probate of wills and letters of administration with or without a will annexed of the estates of deceased persons, and in regard to the hearing and determining of proceedings relating to testamentary matters and matters relating to the estates of deceased persons.
...
27.26 Priority of potential administrators for purposes of rule 27.25
(1) The first in priority is a residuary beneficiary holding in trust for any other person.
....
[19] Given that I will make an order validating the Will, I see no reason why Letters of Administration with Will Annexed should not be granted in Mr Ronald Kite’s favour. If Mr Aperahama Heka’s interests were adversely affected by this order, he retains the right to seek recall of the grant.[7]
Result
[7] High Court Rules, r 27.34(3) and McGechan on Procedure (looseleaf) at para HR 27.34.04.
[20] For those reasons:
[a] I make an order validating the Will under s 14(2) of the Wills Act
2007.
[b] I make an order granting Letters of Administration with Will
Annexed in favour of Mr Ronald Kite.
[21] The costs of and incidental to the validity application shall be paid out of the estate.
P R Heath J
Delivered at 3.00pm on 26 October 2012
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