McGarvey v Temo
[2008] NZCA 375
•19 September 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA315/07
[2008] NZCA 375BETWEENHAKEKE 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” has assumed discernible patterns based on traditional custom but has undergone change particularly as a result of Pakeha contact … Tuhoe iwi determines “whangai” as any customary and optional procedure for taking as one’s own, a child of other parents. The main principle in “whangai” is kinship. Tuhoe regard it as important in the “whangai” of a child that there has to be a whakapapa link, which is readily established in that taking the point of relationship in the whangai situation outside the fourth cousin status is too far removed to allow a “whangai” to have rights in the use of family land. Thus, a close blood relationship is a pre-requisite to the “whangai” eventually assuming rights in family land.
[7] The respondent, Te Hina Temo, is Waimatao’s husband. Waimatao Temo died in 1988 and the respondent is the sole beneficiary of her estate.
The will
[8] The testator’s will was not discovered until 2003. The respondent explained that he had been to inquire about the will at a lawyer’s office in Whakatane about a year after the testator’s death but ceased inquiries after he was told there had been a fire and the will burnt. Then, in 2003, the respondent conferred with a solicitor in Whakatane. Inquiries made by that solicitor of other Whakatane firms led to a response from DMQ Lawyers that they held a will prepared by a predecessor firm.
[9] The will, made on 17 March 1945 when the testator was aged about 51 years, reads in full as follows:
THIS IS THE LAST WILL AND TESTAMENT of me HOHAPATA HEREMIA of Ruatoki in the Provincial District of Auckland and Dominion of New Zealand Aboriginal Native. I GIVE DEVISE AND BEQUEATH all my real and personal property of whatsoever nature and wheresoever situate that I may die possessed of unto WAIMATAO KOHUNUI of Ruatoki aforesaid absolutely AND I HEREBY APPOINT Tui Tawera of Ruatoki aforesaid Aboriginal Native to be the Executor and Trustee of this my Will.
IN WITNESS WHEREOF I the Testator have hereunto set my hand to this my Will this seventeenth day of March One thousand nine hundred and forty-five.
SIGNED and acknowledged by the
said Hohapata Heremia as and for
his last will in the presence of us
both together present at the same “Hohapata Heremia”
time who at his request in his sight
and presence and in the sight and
presence of each other have hereunto
subscribed our names as witnesses.“R F Smith AND I the undersigned Maori witness
Solicitor do hereby certify that I have aWhakatane” sufficient knowledge of the English
and Maori languages to enable me
to be satisfied and I am duly
satisfied that the said testator
has a knowledge of the English
language sufficient to enable him
to understand and that he does
understand the effect of the said
will.“Robert Biddle And I the undersigned Solicitor
Farmerwitness do hereby certify that
Wainui”before attesting the said Will I
did satisfy myself that the said
testator did understand and I
verily believe that he does under-
stand the effect of the said will.
The challenge to the will
[10] After discovering the will, rather than seeking probate, the respondent applied to the Maori Land Court under s 45 of the Te Ture Whenua Maori Act 1993 to have the earlier vesting orders set aside. (On an application under s 45, the Chief Judge of the Maori Land Court may correct errors if the Chief Judge considers that is necessary in the interests of justice (s 44).) It appears that this course was taken for pragmatic reasons relating to the fact that the respondent was legally aided. The appellant opposed the s 45 application. The appellant also filed proceedings in the High Court seeking declarations that the will was invalid and that Hohapata Heremia died intestate. The Maori Land Court then adjourned the s 45 application pending resolution of the High Court proceedings.
[11] Despite the slightly odd procedural history, we treat the case as a challenge not to the form of the will but to whether the testator understood what he was doing. We add that there is no suggestion that the testator was not legally able to bequeath the land to a whangai child at the relevant time.
[12] In summary form, the basis on which the appellant puts the respondent to the proof is that:
(a)The will departs from Tuhoe tikanga (or custom). The appellant says the testator was a person who adhered to tikanga and so was unlikely to have understood or approved such a departure.
(b)The will is in English and the testator, on the Judge’s finding, had a “limited” understanding of English: at [55]. The appellant says that without a translator, the testator could not have had knowledge of the will and the attestation clauses do not suggest the will was translated to him.
(c)The will disinherits the appellant’s family. Given his close relationship with that family, the testator was unlikely to have done this.
The High Court decision
[13] The Judge responded to the points made by the appellant by emphasising, first, that the will on its face recorded the witnesses were satisfied that the testator had understood the effect of the will. Second, the Judge considered that the will was one which, in the circumstances, the testator might have made. Third, Potter J concluded that the limited available evidence surrounding the signing of the will supported the accuracy of the attestation clauses. On this basis, the application for declarations was dismissed and judgment entered for the respondent.
The appeal
[14] On appeal, in broad terms, the appellant challenges whether the evidence allowed the Judge to reach these conclusions. The appellant also says the Judge allowed the respondent to change its case without any correlative amendment to the pleadings. We expand on the appellant’s submissions in the discussion which follows.
Discussion
Overview
[15] We consider it is important to start by observing that the context is a will that is valid on its face. It is apparent from the will itself that it was prepared in advance. Apart from the misplacement of the signatures of the two attesting witnesses, which is not significant, there is nothing to suggest anything untoward in its execution. It appears to be a legitimate will and, although found rather late in the piece, has been produced from a reliable source.
[16] It is also relevant that the will met the specific requirements applicable to the making of a will by a Maori at the time. Those requirements are set out in full in the appendix attached. For these purposes, we note that s 169 of the Maori Land Act 1931 said that a will made by a Maori had to be executed in the manner required by the law relating to the will of a European.
[17] Section 170(1) stipulated the requirements as to witnesses for a will made by a Maori. The attesting witnesses could include a solicitor. Section 170(2) and (3) dealt with the requirements for attestation clauses and provided:
(2) In every case where a will is written in the English language one of the attesting witnesses shall have a sufficient knowledge of the Maori and English languages to enable him to be satisfied that the testator does understand the effect of the will. This shall not apply where the Court in dealing with any will is satisfied that the testator had a knowledge of the English language sufficient to enable him to understand the effect of the will.
(3) Every person whose attestation is rendered necessary by this section shall, before attesting the will, satisfy himself, so far as practicable, that the testator understands the effect thereof, and shall certify on the will that he believes the testator to understand the effect thereof; but no will shall be invalidated or deemed to be informally attested by reason of any breach of the provisions of this section.
(Emphasis added.)
[18] Against this background, we do not see it as significant as the appellant contends that the clauses do not say that the will was translated to the testator. Further, although it is accepted that his understanding of English was limited, it is of some relevance that the testator was a successful farmer and there was evidence of his involvement in a commercial transaction (the purchase of a tractor) relating to the farm. The will was fairly straightforward and both witnesses have certified that the testator did understand its effect.
[19] It follows also that Potter J was right to give weight to these formalities, to the presence of Robert Biddle and to the role of the solicitor.
[20] There was evidence that Mr Biddle, the second of the attesting witnesses, “was of Scots and Maori ancestry and conversant with both [English and Maori], including the Tuhoe dialect”: at [96]. In terms of the solicitor, as Potter J said, it was relevant that in Whakatane in 1945 he:
[98] … was practising in a region and at a period when Maori and the Tuhoe dialect were frequently spoken not only by Maori but by Pakeha, and indeed in the case of many Maori people, was their first language.
[21] It was not therefore necessary, as the appellant submits, to require evidence about the factual underpinning of the clauses. The analogy drawn by the appellant to cases involving testamentary capacity and undue influence is not an apt one.
[22] We add that Potter J recorded (at [4]) that the respondent accepted that “the knowledge and understanding of the testator as to the contents of the will having been put in issue, the onus falls on the [respondent]”. Before us, the appellant placed some emphasis on the fact that the respondent had the onus. We note that in the context of an application for a grant of probate, the authors of Earles and others Dobbie’s Probate and Administration Practice (5ed 2008) at [50.5.2] record, as the first relevant principle, that the Court must be satisfied that the testator knew and approved of the contents at the time the will was signed but, second, that except in those cases “where suspicion attaches to the document”, the fact of the testator’s execution is “sufficient proof that [the testator] knew and approved of the contents” (citing Guardhouse v Blackburn (1866) 1 LR P & D 109 at 116). It may have been arguable that in this case none of the matters relied on by the appellant were such as to have raised suspicion but given the way the parties have approached the matter we deal with it in the way they have advanced the case.
[23] We turn then to address the specific evidential points made by the appellant.
The visit to Whakatane
[24] The appellant challenges the Judge’s reliance on the respondent’s evidence about the testator’s trip to Whakatane to make the will. Of this evidence, Potter J said:
[78] In his affidavit sworn 23 November 2006, Mr Temo described a trip to Whakatane he recalled when a group of people had gone with the testator to Whakatane. The testator had gone to a lawyer there to make a will. He said Tui Tawera went to the lawyer’s office with the testator. Other persons present were Waimatao, Kohinui Tupaea, Waimatao’s biological father, and Robert Biddle, who he described as a well known man involved with the testator through the Ringatu Church, who was fluent in Maori and English.
[79] He said they did not know what was in the will, just that the testator went to Whakatane to make a will. That was why he and his wife looked for it later, but they did not know at which lawyer’s office it was.
[25] As to the significance of this, Potter J said:
[96] On evidence of Mr Temo, Tui Tawera, was with the testator in the lawyer’s office while he and Waimatao waited outside. Mr Tawera would have been able to provide a translation, or at least an explanation, of the contents of the will to the testator. Mr Temo’s evidence that Tui Tawera was present at the lawyer’s office, is consistent with the evidence that Mr Tawera would interpret for the testator when the testator was dealing with the English language. Further, he was named as the sole executor of the will and it is a reasonable inference that the testator would have wished him to know of that appointment. But even if Tui Tawera were not present, the will was witnessed by Robert Biddle who was of Scots and Maori ancestry and conversant with both languages, including the Tuhoe dialect. He would have been able to ensure the testator understood the meaning and effect of the will, before he certified that he was “duly satisfied” that the testator did understand the effect of the will.
[26] The appellant says these findings were not open on the evidence and were based on hearsay. That is because, the appellant submits, the respondent’s evidence was based on a statement made to him by another. The appellant objected to this evidence at the time.
[27] The respondent’s evidence on this aspect is lacking in some clarity. When asked in cross-examination about the passage in his evidence in chief set out above, he said that he had “heard” others say that the testator was going to make a will and that he did not go with the others to the lawyer’s office. However, the Judge clarified the matter by asking, “who went to Whakatane?”, to which the respondent replied, “Hohapata Heremia, me, Waimatao, Robert Biddle, and other whanau Tui Tawera”. The Judge asked how they had travelled to Whakatane and the respondent explained that the testator was one of the few with a car and so they had gone in his car.
[28] Against that background, where there plainly was a will signed by the testator, the inference drawn by the Judge was an available one, particularly, that Tui Tawera was present. That inference is consistent with the fact that Mr Tawera was named as the executor in the will. In any event, Potter J also considered that if Tui Tawera was not there that was not the end of the matter because of the presence of Robert Biddle which, as we have said, we agree was important.
Was there evidence of a willingness to depart from protocol?
[29] The next submission we address is that the Judge’s finding that the testator was willing to depart from protocol was not open on the evidence. This argument relates to the evidence of Te Umu Mary Williams. To put this in context, we need to describe the relevant passages from the judgment.
[30] The first point to note is that Potter J accepted that Waimatao did not whakapapa to the testator’s interests in the land. She also accepted that this fact and the importance of Tuhoe tikanga “may be relevant to the testator’s intention and also in determining his understanding and knowledge of the will”: at [104].
[31] However, the Judge said (at [104]) there were “contrary indications that might equally explain his bequeathing all his property to Waimatao”. Those “contrary indications” were identified in [104] as follows:
· The testator had no biological children.
· Waimatao was his favourite whangai child, described as his “pet” and his “heart”.
· Steeped in Tuhoe tikanga, as he clearly was, the testator would have known that as a whangai child, Waimatao could not whakapapa to his interests in land.
· He would therefore have known that in order to benefit her, he would need to make a “Pakeha will”, by which I mean a will that complied with New Zealand law – Waimatao would not benefit through any succession order made by the Maori Land Court.
· Although the testator was extremely knowledgeable about Tuhoe tikanga and practised it, it is clear that when he considered the occasion demanded it, he was prepared to depart from protocol. I refer to the evidence of Te Umu Mary Williams, that the testator made what she believed to be an ohaaki to her when her two elder brothers and her father were alive and Tuhoe tikanga would have required that such a solemn act and blessing was made to them.
· The testator, aged 51 when he made the will, was mature, a leader of Ngai Tuhoe, a man whose decisions were respected and whose word had authority. He was accustomed to take decisions, not only for himself but for others, and to have those decisions respected and implemented. He would have expected no less in relation to his decision to make a will in favour of Waimatao, which is evidenced by the contingent of people that accompanied him into Whakatane on 17 March 1945, when he made the will.
(Emphasis added.)
[32] Mrs Williams is the eldest daughter of Paki McGarvey. Her grandmother, Peehimana Karaehe Heremia was a sister to the testator. In her brief of evidence she described a situation where the testator after greeting her began a blessing. She said:
I then realised what my koro [the testator] was doing. He was giving an ohaaki which is a traditional Maori custom for land similar to an oral will. But why would he do that? My father, along with my two eldest brothers were still alive and I felt that this information should have gone to them.
[33] In cross-examination, Mrs Williams maintained however that the testator was still acting in accordance with tikanga in what he did. She said that was because, in relation to an ohaaki, Tuhoe say the eldest girl of a whanau “has those rights as well”. She said she was surprised at his actions but also understanding of the tikanga.
[34] In answer to another question in cross-examination Mrs Williams said that it was “the nature of our whanau” that everything the testator did “he discussed it with our father and with my brothers. That was the practice of tikanga.”
[35] The Judge saw some aspects of Mrs Williams’ evidence as “puzzling” (at [64]) and did not consider her evidence provided a “sound basis” for concluding that the testator did not intend to leave his land interests to Waimatao: at [68].
[36] There is a sense in which the Judge has made adverse credibility findings in relation to Mrs Williams but in other respects has found her evidence helpful. In the end though not a great deal turns on this and nor does the appellant’s argument on this point ultimately detract from the Judge’s conclusion. That is because, first, although there is room for some uncertainty as to exactly where this evidence left matters, certainly what occurred was not what Mrs Williams had expected would happen. More importantly, this was only one of the indicators the Judge relied on.
Undue reliance on relationship with Waimatao
[37] The essential submission under this head is that Potter J has given no weight to the testator’s close relationship with the appellant’s family. If the testator had wanted to make provision for Waimatao that could have been done whilst still providing for the other family members.
[38] We do not see this factor as one which should disturb the Judge’s conclusions. The short point is that, while it is not separately addressed by Potter J, the indicators identified by the Judge at [104] especially those relating to the place Waimatao held in the testator’s mind explain why the testator may have acted as he did: see above at [31]. That is sufficient in this case especially where there is no question of any lack of testamentary capacity or undue influence.
The pleadings point
[39] Under this head, the appellant first makes an argument based on the pleadings. The amended statement of claim set out the various factual matters relied on in terms of the discovery of the will, the application to the Maori Land Court and so on. The pleading in paragraph 24 was that the testator did not have knowledge of the contents of the will. The relevant particulars of this pleading related, first, to the testator’s fluency in Maori and lack of familiarity with English. Second, the particulars addressed the testator’s membership of and role in Ngai Tuhoe. The particulars continued by averring that the testator:
24.11… was a member of Ngai Tuhoe;
24.12… a leader of Ngai Tuhoe;
24.13… strictly adhered to the customs and laws of Ngai Tuhoe; [and]
24.14… intended that the land be succeeded to in accordance with the customs and laws of Ngai Tuhoe.
[40] The particulars continued as follows:
24.15The customs and laws of Ngai Tuhoe regulate ‘whakapapa’ links between a member of Ngai Tuhoe and the land;
24.16The customs and laws of Ngai Tuhoe prevents the succession to the land by any person who does not have a direct ‘whakapapa’ link to the land;
24.17Waimatao does not have a direct ‘whakapapa’ link to the land;
24.18The will is a breach of the customs and laws of Ngai Tuhoe;
24.19The testator would not have agreed to the contents of the will;
24.20The testator had a close relationship with the plaintiff and his family; [and]
24.21The testator did not understand the will.
[41] In the statement of defence, the respondent denied any invalidity. In terms of the critical pleadings for the present argument, the respondent agreed with the particulars in 24.11 – 14. In terms of 24.14 relating to the testator’s intention to bequeath the land in accordance with tikanga, the respondent added:
[A]nd states further that the content of the will is clearly an indication that the transfer to Waimatao Temo was in accordance with the customs and laws of Ngai Tuhoe.
[42] The pleading on paragraph 24.15 concerning the customs and laws repeated that for pargraph 24.14. In terms of paragraph 24.16 relating to tikanga, again the respondent accepted that and stated further that Waimatao had a whakapapa link to the land. Paragraphs 24.17 to 24.19 were accordingly denied.
[43] The appellant says these pleadings reflected the respondent’s initial approach to the case, namely, that there was no breach of tikanga because Waimatao had the requisite whakapapa links to the land. It was not open to the respondent, the appellant says, to then “change tack” and without seeking to amend the pleadings put his case on the basis that the testator had the authority to depart from tikanga.
[44] The appellant’s argument may have some force in a strictly technical sense. However, ultimately it is not realistic to say that the respondent accepted that adverse answers to the questions raised by these particulars would dispose of the case. Rather, the question about consistency with Tuhoe tikanga was a contextual one. The fundamental question was as to the testator’s knowledge and approval.
[45] Further, this is not a case where the appellant has been prejudiced by any shift in the respondent’s case. The main thrust of the evidence was that the testator would not have departed from Tuhoe tikanga. It is difficult to see what other evidence could have been called that might have affected the position and the appellant did not identify any.
Conclusion
[46] Accepting Potter J’s credibility findings, on our review we reach the same conclusion. We come back to the fact the will is valid on its face and none of the matters relied on are such as to support the contrary view.
Costs
[47] We understand that both of the parties are legally aided. Costs are reserved.
Solicitors:
Rangitauira & Co, Rotorua for Appellant
Kensington Swan, Wellington for RespondentAPPENDIX OF STATUTORY PROVISIONS APPLICABLE AT THE TIME THE WILL WAS MADE
The Maori Land Act 1931
[48] The execution of wills was governed by s 169 which provided that:
169. Maori wills to be executed in same manner as wills by Europeans. – No will made by a Maori, whether before or after the commencement of this Act, shall be valid unless executed in the same manner as is required by the law in force for the time being in respect of the will of a European, and all the provisions of that law as to the execution of a will and as to the attesting witnesses thereof shall apply accordingly.
(Compare with s 110 of the Maori Affairs Act 1953.)
[49] Requirements as to witnesses were set out in s 170 as follows:
170. Requirements as to witnesses. – (1) No will made by a Maori after the commencement of this Act shall be valid unless one of the attesting witnesses thereof is –
(a) A solicitor;
(b) A Justice of the Peace;
(c) A Stipendiary Magistrate;
(d) A registered medical practitioner;
(e) An Officiating Minister under the Marriage Act, 1908;
(f) A licensed Interpreter of the first grade;
(g) A Postmaster; or
(h) A teacher of a Maori school under the Education Act, 1914.
(2) In every case where a will is written in the English language one of the attesting witnesses shall have a sufficient knowledge of the Maori and English languages to enable him to be satisfied that the testator does understand the effect of the will. This shall not apply where the Court in dealing with any will is satisfied that the testator had a knowledge of the English language sufficient to enable him to understand the effect of the will.
(3) Every person whose attestation is rendered necessary by this section shall, before attesting the will, satisfy himself, so far as practicable, that the testator understands the effect thereof, and shall certify on the will that he believes the testator to understand the effect thereof; but no will shall be invalidated or deemed to be informally attested by reason of any breach of the provisions of this section.
(4) Notwithstanding anything in this section, a will may be executed by a Maori in any place out of New Zealand in the same manner as if he was a European.
(Compare with s 111 of the 1953 Act.)
[50] Section 175 of the 1931 Act also provided a time limit for making applications for probate:
175. Time for application for probate. – Every will made by a Maori shall, on the expiration of two years from the death of the testator, become absolutely null and void as from the death of the testator, unless before the expiration of that period application has been made to the Court for a grant of probate of that will, or for a grant of letters of administration with that will annexed, or for a succession order in pursuance of the dispositions of that will.
Special provisions relating to the time for application for probate of wills of Maori servicepersons were provided for in s 4 of the Maori Purposes Act 1946.
[51] Section 175 of the 1931 Act was reenacted in similar terms by s 124 of the 1953 Act. That section was repealed by s 8(1) of the Maori Purposes Act 1964 with effect from 11 November 1964, almost seven years before the testator’s death. Accordingly, the time limit provisions were not applicable in the present appeal.
[52] For an account of issues relating to Maori wills and succession see: Smith Maori Land Law (1960), chapter 6.
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