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Mason v Mason

Mason v Mason

Case [2022] NZHC 491 17 March 2022

Testamentary Intentions

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IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2021-406-20

[2022] NZHC 491

UNDER Section 14 of the Wills Act 2007

IN THE MATTER

of the estate of Tauhuaraki Mason

BETWEEN

KIPA TAUHUARAKI IAN MEIHANA MASON

Applicant

AND

ARENA KEITA MASON, RAEAIMAI JUNE NICKLIN AND MARAMA CONNIE BEATTIE

Respondents

Hearing: 23 February 2022

Appearances:

Q A M Davies and J S Marshall for the Applicant M J Radich for the Respondents

Judgment:

17 March 2022

JUDGMENT OF COOKE J

[1] By originating application dated 3 June 2021 the applicant applies for an order that an unexecuted draft will of his father, Mr Tauhuaraki Mason (Mr Mason) be declared as his last will in accordance with s 14 of the Wills Act 2007 (the Act). The application is supported by affidavits from the applicant and Mrs Constance Mason (Mrs Mason), who is the applicant’s mother and the former wife of Mr Mason. The application is opposed by the applicant’s three siblings: Ms Arena Mason, Ms Raraimai Nicklin and Ms Marama Beattie. An affidavit of Ms Arena Mason has been sworn in opposition.

MASON v MASON [2022] NZHC 491 [17 March 2022]

[2] As matters presently stand the applicant and his three sisters share equally under their father’s properly executed will from 1979. A replacement will was drafted in 2000 but never executed, under which the applicant is bequeathed his father’s Māori landholdings to the exclusion of his sisters. He now seeks to have this will declared his father’s last will.

Background

[3] I begin by setting out the relevant facts. This will involve making some factual findings.

[4] Mr Mason died September 2020 at Koromiko, north of Blenheim. He was then aged 67 and living alone in a campervan. He left a will dated 6 November 1979. The executor under the will is a trustee company, now New Zealand Guardian Trustee Company Ltd. His estate is to be divided equally between his four adult children — the applicant and the respondents. Whilst the will provided for Mrs Mason by its terms, these dispositions are void as a consequence of the dissolution of their marriage in 2004.1 On his death, Mr Mason’s assets were the proceeds of the sale of his home (which he had sold a month before his death), cash and various chattels, and interests in Māori and European freehold land in various locations around Marlborough. The estate has not yet been distributed.

[5] The application focusses on Mr Mason’s intentions with respect to his Māori landholdings. Mr Mason had associations with Ngāti Kuia, Ngāti Apa and Rangitāne. One of the pieces of Māori land of significance was land at Anakoha Bay, a property that had been enjoyed by the family over the years. The other Māori land interests are in various parcels of land around the region where the interests were held more diversly with other Māori landowners. The evidence from the applicant and his mother is that it was…

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.

Continue reading Mason v Mason

Details

AGLC: Mason v Mason [2022] NZHC 491
Case: [2022] NZHC 491
Decision Date: 17 March 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Mason v Mason involved an application by the applicant, Kipa Tauhuaraki Ian Meihana Mason, seeking a declaration that an unexecuted draft will of his late father, Mr Tauhuaraki Mason, be recognized as his last will in accordance with section 14 of the Wills Act 2007. The application was opposed by the applicant's three siblings: Arena Mason, Raraimai June Nicklin, and Marama Connie Beattie. The central legal issue in this case was whether the unexecuted draft will expressed the deceased's testamentary intentions.

The court examined the circumstances surrounding the preparation of the draft will, including the separation and subsequent dissolution of the applicant's parents' marriage, and the lack of evidence from the solicitor who prepared the will. The court found that the draft will did not fully correspond to the applicant's evidence of his father's intentions, and that there were substantial doubts about what those intentions were. The court concluded that the application should be dismissed, and that the respondents would be entitled to costs on a 2B basis.

Orders