Langston v Hodge

[2019] NZHC 2350

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1048

[2019] NZHC 2350

IN THE MATTER

of the Estate of NIGEL LLEWELLYN LANGSTON

BETWEEN

JAQUELINE SHAN LANGSTON and STEPHEN FRANCIS LANGSTON

Applicants

AND

CATHY EILEEN HODGE

First Respondent

EMILY HODGE
Second Respondent

VINCENT HODGE

Third Respondent

Hearing:

18 September 2019

Appearances:

W M Patterson for applicant

No appearance for respondents (no steps taken)

Judgment:

18 September 2019

JUDGMENT OF LANG J

[on originating application for directions in relation to the estate of Nigel Llewellyn Langston]

This judgment was delivered by me on 18 September 2019 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

LANGSTON v HODGE [2019] NZHC 2350 [18 September 2019]

[1]                 This proceeding concerns the estate of the late Nigel Llewellyn Langston, who died at Auckland on 7 April 2017 at the age of 95 years.

[2]                 Mr Langston left a will dated 16 February 2006, probate of which was granted to the applicants in the High Court at Wellington on 29 May 2017 (the 2006 will). The applicants are Mr Langston’s brother and his granddaughter.

[3]                 On 19 May 2017, after the application for probate had been filed but before probate had been granted, Mr Langston’s brother David received an anonymous typed letter dated 27 April 2017.1 The letter enclosed a photocopy of two pages of a typed document purporting to be a will executed by Mr Langston on 16 November 2015 (the 2015 will).

[4]                 The applicants have now made extensive enquiries into the authenticity of the 2015 will but have not been able to ascertain who prepared it or the circumstances in which it came to be signed. As a result, they do not consider the estate should be put to the delay and expense that would be caused by an application to recall probate of the 2006 will and a concurrent application for probate of that will in solemn form.

[5]                 Instead, the applicants seek a direction in this proceeding that they now be permitted to distribute the assets of the estate in accordance with the provisions of the 2006 will. On 10 July 2019 I issued a Minute in which I directed that the proceeding should be served on the respondents as parties affected by the direction that the applicants seek. I further directed that any party who wished to do so should file an application to recall probate of the 2006 will no later than 10 September 2019. The applicants have duly served the proceeding on the respondents but none has taken steps to date to apply for recall of probate of the 2006 will.

Decision

[6]                 I am satisfied Mr Langston’s estate should now be distributed in the manner prescribed by the 2006 will for the following reasons.

1      The application for probate was filed on 1 May 2017.

[7]                 First, the 2015 will is incomplete. The final page of the document is missing. That page would have contained the signatures of the persons who witnessed the execution of the document. Their signatures do not appear on the first two pages of the document so it is not possible at present to ascertain whether two persons witnessed the execution of the document in each other’s presence.   This is a requirement of     s 11(4) of the Wills Act 2007 (the Act).

[8]                 A will that does not comply with the requirements of the Act can nevertheless be validated by the Court under s 14 of the Act. Before the Court may make an order under s 14, however, it must be satisfied that the document in question expresses the testamentary intentions of the person who signed it.2 In considering this issue the Court may consider the document, evidence relating to the signing and witnessing of the document, evidence of statements made by the deceased person and evidence about the testamentary intentions of the deceased person.3

[9]                 In the present case the applicants have not been able to locate the original of the 2015 will despite finding two earlier wills and notes relating to the 2006 will among Mr Langston’s personal effects. Nor have they been able to obtain information from any other source that would shed light on the reasons why Mr Langston signed the 2015 will on 16 November 2015.

[10]             The anonymous letter that accompanied the 2015 will referred to the fact that a lawyer had come to Mr Langston’s house to advise him in relation to the 2015 will. This seems likely given the fact that it was typewritten and is in a form likely to have been prepared by a solicitor.

[11]             As at November 2015 Mr Langston’s only known solicitor was Mr John Boyle of the law firm Boyle Mathieson. Mr Boyle prepared the 2006 will and diary notes found  amongst  Mr  Langston’s  possessions  following  his  death   confirm   that Mr Langston still considered Mr Boyle to be his solicitor in 2015. Mr Boyle has confirmed, however, that he did not prepare the 2015 will and did not receive any instructions from Mr Langston in relation to it. Mr Boyle’s firm also placed an

2      Wills Act 2007, s 14(2).

3      S 14(3).

advertisement seeking wills in the name of Mr Langston in the July 2017 edition of the NZ Lawyer magazine but this did not unearth the original version of the 2015 will or the solicitor who prepared it.

[12]             Furthermore, the applicants have analysed payments made from Mr Langston’s bank account in and around November 2015. They have not been able to locate any transaction that might represent a payment made to a solicitor for the preparation of the 2015 will. The applicants have therefore been unable to discover who prepared that document. This means they have not been able to ascertain why and how it came to be prepared, or whether two witnesses observed Mr Langston sign it as required by the Act. This means it would not be possible for a court to determine that the 2015 will represented Mr Langston’s testamentary intentions. An application for validation of the 2015 will under s 14 of the Act could not succeed for that reason.

[13]             There are also significant doubts about Mr Langston’s testamentary capacity in November 2015. He was suffering from dementia at the time of his death and the evidence suggests he had been afflicted by this for at least a year prior to November 2015. Dr Siobhan Trevallyan, Mr Langston’s general practitioner between April 2015 and April 2017, has sworn an affidavit in support of the application. She has studied medical records relating to Mr Langston between 2013 and 2015. Dr Trevallyan deposes that she is satisfied both from her own observations of Mr Langston and the material contained in the medical records that Mr Langston would not have had testamentary capacity for some time prior to 15 November 2015.

[14]             Finally, all of the fourth respondents have confirmed they consider the estate should be distributed in accordance with the 2006 will. The only parties adversely affected if the 2015 will is not given effect are the first to third respondents, as well as the second respondent’s son who is a minor.4 The first respondent, Ms Cathy Hodge, is the only person having a significantly greater interest under the 2015 will than the 2006 will. The applicants have never heard from her regarding her views as to the validity of the 2015 will.

4      On 10 June 2019 Wylie J directed that the second respondent was to represent the interests of her son in this proceeding.

[15]             In an email sent to the applicant’s solicitors on 15 September 2018 the second respondent, Ms Emily Hodge, suggested that the final page of the 2015 will may have been thrown out by members of Mr Langston’s family when he was in hospital. She also said she had taken photographs of Mr Langston’s possessions at his direction. When the applicants’ solicitors sought further information about these issues she did not respond.

[16]             The first to third respondents have all been served with the present proceeding but have taken no steps to apply for recall of probate of the 2006 will. They must therefore be taken to  now  accept  that  the  provisions  of  the  2006  will  reflect  Mr Langston’s final competent testamentary intentions.

Result

[17]             I make an order as sought in paragraph 1(b) of the originating application dated 7 June 2019. Mr Langston’s estate is to be distributed in accordance with the provisions of the 2006 will. It follows that the applicants will now be able to be reimbursed by the estate for the expenditure they have incurred in the administration of the estate to date, including the costs incurred in bringing the present proceeding.

Lang J

Solicitors:

Patterson Hopkins, Auckland