Maguire v Maguire

[2018] NZHC 3097

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000509

[2018] NZHC 3097

UNDER THE

WILLS ACT 2007

IN THE MATTER OF

ESTATE OF CHRISTOPHER JAMES MAGUIRE

BETWEEN

HEATHER MARGARET MAGUIRE

Plaintiff

AND

BRIAN JOHN MAGUIRE

Defendant

Hearing:	22 November 2018
Appearances:	J Stringer for Plaintiff Defendant in person
Judgment:	28 November 2018

JUDGMENT OF DUNNINGHAM J

Introduction

[1]        This is an application by the plaintiff, Heather Margaret Maguire, to validate a letter dated 24 October 2014 (the 2014 letter) as a will confirming the testamentary intentions of her late son, Christopher James Maguire (Chris).

[2]Mr Maguire, Chris’s father, opposes the application.

MAGUIRE v MAGUIRE [2018] NZHC 3097 [28 November 2018]

Background

[3]        Chris was born on 12 November 1988. He lived with his mother, father and sister in Timaru until his parents separated in mid-2009. After that Chris relocated to Christchurch as did his mother. In the period 2008 to 2011, Chris undertook studies at Polytech and completed New Zealand Army Basic Training, although at other times he was unemployed. During this period he lived with his mother with the exception of the nine month period when he attended basic training in 2008.

[4]        Sadly, Chris’s sister, Tracey, was diagnosed with Hodgkin’s lymphoma in 2008 and she died in March 2010. As Mrs Maguire explains in her affidavit evidence, Chris and Tracey were very close and she believes he never quite got over her death. Regrettably, Chris then succumbed to alcoholism and, from around 2011, he was on a sickness benefit and unable to work. It was withdrawal from alcohol that caused him to have a seizure, collapse and suffer the head injury that tragically took his life in late 2014.

[5]        Mrs Maguire supported her son Chris financially and emotionally until his death. She explains that Chris did not pay rent when he lived with her. It seems, too, she dealt with the harsh reality of living day to day with his alcoholism. Chris had little contact with his father after the move to Christchurch, and although he would sometimes accompany his mother to Timaru to see his grandmother, she says he generally chose not to visit his father at the same time. In addition, Mr Maguire made almost no contact with his son Chris, nor did he travel to Christchurch to visit him.

The estate

[6]        Chris’s estate is limited. He owns some personal items, an extensive DVD collection and has a small amount of money in his Kiwibank account. The only asset of any value is a life insurance policy which was taken out in 2010. Mrs Maguire paid the premiums on it for the period 2013 to 2016. She explains that Chris was going to cancel the policy because he could not afford it. However, she said she would cover the cost until he sorted himself out. After some resistance from the insurance company, the policy has eventually been paid out, and the sum of around $160,000 is held in a trust account.

The 2014 letter

[7]        Mrs Maguire’s affidavit in support of the application annexes the 2014 letter written by Chris which is the document sought to be validated as his will. At the top of the first page the letter bears the date 24-10-14, although it appears he originally wrote 2015 and then corrected the last digit to 2014. The letter includes the title “My Will” at paragraph three. The primary testamentary intention expressed in the letter is contained in the sentence which says that he leaves his life insurance, any savings and his possessions to his mother.

[8]        While he goes on to express the wish that she make a donation to a friend of his who is a filmmaker to help him with a film project and to make a donation to the SPCA and Cats Protection League, it is clear that these are wishes only, rather than terms of the will. The letter is then signed by Chris at the end, followed by a postscript about his funeral.

[9]        The letter also explains why Chris’s father is not to benefit. He says “personally I don’t think Dad deserves any of my stuff or money – he was never really there for me. I always thought he cared more about himself than anyone  else anyway – it will be up to you if you decide to give him anything – but I wouldn’t”. He also acknowledges that his mother has been paying the life insurance policy premiums for years and that he had never paid her rent, so this was his way of paying back all the money he owed her.

[10]      For completeness, I note Mrs Maguire’s affidavit attaches earlier handwritten documents by Chris which also express the sentiment that she should inherit his life insurance policy and savings in the event of his death.

Wills Act 2007

[11]      The application to validate the 2014 letter as a will is made under s 14 of the Wills Act 2007 (the Act). 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.

[12]      Under s 11 of the Act, a will must be in writing, and must be signed and witnessed in accordance with subs (3) and (4). In this case, while the document is clearly in writing and I am satisfied that the evidence confirms that it has been signed by the deceased, it has not been witnessed and therefore does not comply with the requirements of the Act. There is no dispute that the document was written by Chris in New Zealand. I therefore go on to address the remaining two issues.

Is there a document that appears to be a will?

[13]      The Court has taken a liberal approach to the question of whether a document appears to be a will. As was said in Re Tutaki:1

The focus is therefore on the substance of the document (whether it expresses the deceased’s intentions) rather than its form (whether it was intended to be the deceased’s will).

[14]      In this case, though, there are clear indicators that this document was intended to be the deceased’s will in form, not just in content. The deceased headed the operative part of the 2014 letter with the words “My Will”. He has also used legalistic terminology to reinforce his intention that this be treated as a formal expression of his testamentary intentions. Specifically he states:

1      Re Tutaki HC Hamilton CIV-2010-419-1208, 13 May 2011 at [25].

I Christopher James Maguire have been sober for over 24 hours when I started writing this so I’m of sound mind – I leave everything I own – my life insurance, any savings and my possessions to my mother Heather Margaret Maguire to do with what she wants.

[15]      I am satisfied therefore that the 2014 letter appears to be a will and this leads on to the question of whether it expresses the deceased’s testamentary intentions.

Does the document express the deceased’s testamentary intentions?

[16]      I accept the submissions of the plaintiff that there are a number of indicators in the letter which support it expressing Chris’s testamentary intentions. I have already referred to the fact that he headed the operative part of the document as “My Will”. He also prefaced that heading by the words “now I have to make this official”. The use of his full name, and his mother’s full name in the subsequent passage also suggest a formality reflective of a testamentary document.

[17]      He was also conscious that his issues with alcohol could call the will into question. He therefore deliberately specified that he had been sober for 24 hours when he wrote it and so was of sound mind. The fact he had taken this step and written the letter when sober is reinforced by:

(a)the clarity of the document, and its thoughtful reflection on how his alcoholism had affected his mother’s life; and

(b)the fact he was able to correctly identify all the assets which comprised his estate being:

(i)a life insurance policy;

(ii)a savings account balance; and

(iii)his DVD collection and other personal items.

The document therefore contains a clear expression of the extent of his estate, his wishes about who is to inherit it, and his reasons for making that decision.

[18]      Ms Stringer for the applicant also refers to two earlier documents annexed to Mrs Maguire’s   affidavit,   an   undated    document    and    a    document    dated  12 November 2011, which similarly demonstrate an intention by Chris to give all his life insurance and savings to his mother. As she points out, there is no contradiction of testamentary intentions.

[19]      I am satisfied therefore that the 2014 letter is a clear statement of Chris’s testamentary intentions.

Mr Maguire’s concerns

[20]      Mr Maguire, representing himself, filed an affidavit opposing the application. In his affidavit he raised concerns about the form of the document, saying the relevant letter is not witnessed by anyone, nor signed with Chris’s usual signature and the date on the letter has been altered. At the hearing, Mr Maguire also raised a concern that Chris may have been under the influence of alcohol when he wrote the document.

[21]      He also points out that the reason he and Chris had little contact was because he was being treated for depression himself during this time. As he explained at the hearing, he was hurt that Chris thought he was not concerned about him, and he did make contact with Chris when he found out about his alcohol problem, although he also accepted that he had not visited Chris in Christchurch in the period since his sister’s death.

[22]      Mr Maguire also explained that, until the money from the insurance policy was successfully claimed, he had been advised that half of the funds in the Kiwibank account would be his. By implication, it seems, his expectations would be disappointed if this document was validated as a will and excluded him from inheriting anything.

Discussion

[23]      As I explained to Mr Maguire, the non-compliance with formalities such as having the document witnessed is not relevant to the application. Indeed it is the fact

the document does not comply with the formalities of s 11 of the Act that invokes the need to apply for validation under s 14.

[24]      Furthermore, the family background which shaped the deceased’s testamentary intentions is irrelevant as long as I am satisfied that the document does contain the deceased’s testamentary intentions.

[25]      The issue in this case is whether I am satisfied that the 2014 letter satisfies the requirements of s 14. In this regard I note:

(a)The authenticity of the document has been confirmed by Mrs Maguire’s affidavit which provides further examples of Chris’s signatures and handwriting;

(b)The document appears to be a will, at least partly in form, but more importantly, in substance; and

(c)The testamentary intentions contained in the document are clearly expressed and are consistent with earlier expressions of the deceased’s testamentary intentions.

[26]      I also note that the 2014 letter was prepared less than two months before Chris died. The short passage of time between preparing the 2014 letter, the consistency of it with previous documents recording his testamentary intentions and the absence of any evidence to suggest that Chris changed his mind in the short period of delay between preparing the letter and his death are all persuasive evidence pointing to the appropriateness of making the order sought.

[27]      Thus, notwithstanding the submissions of the deceased’s father, I accept that these should not stand in the way of the validation of the 2014 letter as the will of Christopher James Maguire.

Outcome

[28]Accordingly, I make orders as follows:

(a)The document dated 24 October 2014, a copy of which is attached in Annexure A to the affidavit of Heather Margaret Maguire, is validated under s 14 of the Wills Act  2007  as  the  will  of  the  late Christopher James Maguire.

(b)As requested by the applicant, the issue of costs is reserved.

Solicitors:
Saunders Robinson Brown, Christchurch