McGarvey v Temo - [2008] NZCA 375

IN THE COURT OF APPEAL OF NEW ZEALAND
CA315/07
[2008] NZCA 375
BETWEENHAKEKE JACKIE MCGARVEY

Appellant

ANDHINA TEMO

Respondent

Hearing:26 August 2008

Court:William Young P, Hammond and Ellen France JJ
Counsel:M P Armstrong for Appellant

J A N Patuawa and J J Lang for Respondent

Judgment:19 September 2008 at 2.15 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BCosts are reserved.

REASONS OF THE COURT
(Given by Ellen France J)
Table of Contents
PARA NO.
Introduction  [1]
Factual background   [3]
         The parties  [3]
         The will  [8]
         The challenge to the will  [10]
THE HIGH COURT DECISION  [13]
The appeal  [14]
Discussion  [15]
         Overview  [15]
The visit to Whakatane  [24]
         Was there evidence of a willingness to depart from protocol?  [29]
         Undue reliance on relationship with Waimatao  [37]
         The pleadings point  [39]

CONCLUSION  [46]
Costs   [47]
Appendix  [48]
Introduction
[1]       This appeal relates to the validity of a will made on 17 March 1945 by Hohapata Heremia (the “testator”). In the will, the testator left his estate to Waimatao Temo who was his whangai (adopted) child. The appellant, Hakeke Jackie McGarvey, challenged the validity of the will on the basis that the testator did not have knowledge of or approve the contents of the will.
[2]       In a decision delivered on 1 June 2007 Potter J upheld the validity of the will: HC ROT CIV 2006-463-69. Mr McGarvey appeals against that decision.
Factual background
The parties
[3] The testator died on 29 July 1972, aged 78. The uncontested evidence was that he was a man “of mana and high esteem within Ngai Tuhoe”, a distinguished orator and well versed in Tuhoe tikanga: at [23]. Potter J also referred (at [23]) to the evidence that his decisions were respected and his word had authority.
[4]       When he died, the testator had interests in Maori freehold land in the Ruatoki and wider Tuhoe area. On 8 November 1983, the Maori Land Court vested his land interests on the basis that the testator died intestate and did not have any issue. The land was vested in a number of people including the appellant’s father, Tamahou Peehi Heremia McGarvey (also known as Paki McGarvey) and the appellant’s aunt, Caroline Tumoana. The appellant’s father was the testator’s brother. The appellant and others have since succeeded to those land interests.
[5]       Although the testator had no biological children, he had a number of whangai children including Waimatao.
[6]       Potter J described the process of whangai by quoting from the evidence of Professor Milroy given in other proceedings before the Maori Land and Appellate Courts at [40]:
The process of whangai normally involves taking a child at birth or at early infancy and raising it with its whangai (parents or parent) until the whangai marries …
It must be pointed out that the term “whangai” differs from the term “atawhai” in that the delineation is that “atawhai” tends to equate more with “fostered child” and “whangai” with “adopted child” …
Within the Tuhoe context, adoption or “whangai”…

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 McGarvey v Temo

Details

AGLC: McGarvey v Temo [2008] NZCA 375
Case: [2008] NZCA 375
Decision Date: 19 September 2008

CaseChat Overview and Summary

This appeal concerns the validity of a will made by Hohapata Heremia on 17 March 1945. The will left his estate to his whangai child, Waimatao. The appellant, Hakeke Jackie McGarvey, who has since succeeded to land interests from the testator’s estate, challenges the will on the basis that the testator did not have knowledge of or approve the contents of the will. The Court of Appeal dismisses the appeal and upholds the decision of Potter J that the will is valid.

The Court of Appeal first considered the legal issues arising from the challenge to the validity of the will. The will was valid on its face and complied with the statutory requirements for a will made by a Maori. The testator’s knowledge and approval of the will was the fundamental question. The Court of Appeal then considered the specific evidential points made by the appellant. The Court of Appeal found that the Judge was entitled to draw the inference that Tui Tawera, the sole executor named in the will, was present when the will was made and would have been able to ensure the testator understood the meaning and effect of the will. The Court of Appeal also found that the Judge was entitled to find that the testator was willing to depart from Tuhoe tikanga when necessary. The Court of Appeal rejected the appellant’s argument that the respondent had changed its case without amending the pleadings. The Court of Appeal found that the fundamental question was as to the testator’s knowledge and approval and that the appellant had not been prejudiced by the shift in the respondent’s case.

The Court of Appeal found that, accepting Potter J’s credibility findings, it reached the same conclusion as Potter J. The will was valid on its face and none of the matters relied on by the appellant were such as to support the contrary view. The Court of Appeal reserved costs as both parties were legally aided.

Orders