McGarvey v Temo as Temporary Administraro of the Estate of Heremia HC Rotorua CIV 2006-463-69
[2007] NZHC 1779
•1 June 2007
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CIV 2006-463-69
IN THE MATTER OF HOHAPATA HEREMIA of Tuatoki, deceased
BETWEEN HAKEKE JACKIE MCGARVEY Plaintiff
ANDHINO TEMO AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF HOHAPATA HEREMIA
Defendant
Hearing: 26-28 March 2007
Appearances: M Armstrong and J Pou for plaintiff
JAN Patuawa and L Carter for defendant
Judgment: 1 June 2007 at 3 p.m.
JUDGMENT OF POTTER J
This judgment was delivered by me on 1 June 2007 at 3:00 p.m. pursuant to r 540(4)
of the High Court Rules 1985.
Registrar / Deputy Registrar
Solicitors:
Rangitauira & Co, PO Box 1693, Rotorua
Kensington Swan, PO Box 10246, The Terrace, Wellington
MCGARVEY V HINO TEMO AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF HOHAPATA HEREMIA HC ROT CIV 2006-463-69 1 June 2007
CONTENTS
Introduction [1] Issue [3] Burden of proof [4] Parties [5] Land interests of the testator [8] The will [11] Positions of the parties [19] Factual background [22]
Some terms and expressions [38] Whangai [39] Whakapapa [44]
The testator’s knowledge of English [51]
Alleged promises by the testator
Te Umu Mary Williams (nee McGarvey) [56]
Mohi John Rogers [69]
Other evidence
Te Hina Temo [78]
Te Hina Iti (Hiki) Toko [85] Legal principles [90] Summary [91] Application of the principles [94] Whakapapa [104] Result [107] Costs [109]
Introduction
[1] The plaintiff seeks declarations that:
a) a will dated 17 March 1945 (“the will”) purportedly made by
Hohapata Heremia is invalid; and b) Hohapata Heremia died intestate.
[2] The defendant opposes the making of the declarations and says the will is valid and enforceable.
Issue
[3] The fundamental issue in this case is whether, when the will was signed, the named testator, Hohapata Heremia –
a) had knowledge of the contents of the will; and b) approved the contents of the will.
Burden of proof
[4] The defendant accepts 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 defendant, who seeks to enforce the will to prove its validity: Chatterton v Howie [1926] NZLR 595. The standard of proof is the civil standard, on the balance of probabilities: R v Burke [1991] 2 NZLR 312 (HC).
Parties
[5] The plaintiff, Hakeke Jackie McGarvey (“Mr McGarvey” and “the plaintiff”), comes from Ruatoki in the Bay of Plenty. He is one of a number of people who succeeded to certain interests in land of the testator, by order of the Maori Land Court made on 8 November 2003 (“the MLC order”), and subsequent succession orders made on 11 June 1984 and 16 September 1986.
[6] The defendant, Te Hina Temo (“Mr Temo” and “the defendant”) comes from Taneatua in the Bay of Plenty. He is the sole beneficiary of the estate of Waimatao Temo (formerly Kohunui). She is the sole beneficiary under the will.
[7] Hohapata Heremia (“the testator”) was of Ngai Tuhoe, as are the plaintiff and the defendant, and most of the people involved in this case.
Land interests of the testator
[8] At the time of his death, the testator held interests in land (“the interests in land”) as follows:
1. Ruatoki A section 15A Papakainga No.23;
2. Pawharaputoko A No.3;
3. Pawharaputoko B No.1;
4. Pawharaputoko T;
5. Ruatahuna Farm;
6. Manawa-o-Tuhoe;
7. Ruatoki B sec 19.
[9] As the result of the MLC order and the two subsequent orders of the Maori Land Court in 1984 and 1986, Mr McGarvey and others have succeeded to part of the testator’s interests in land, including the Ruatoki B19 block. Their interests in that block are now held by the Paki Ameria Whanau Trust. Mr McGarvey and his family live on the Ruatoki B19 block.
[10] On 20 January 2004, the defendant filed an application under s 45 of the Te Ture Whenua Maori Act 1993, to overturn the MLC order and succeed to the testator’s land interests, on the basis of the will. The defendant’s application was opposed by Mr McGarvey. The Maori Land Court referred to this Court, the issue of the validity of the will.
The will
[11] When the will was made on 17 March 1945, the testator was aged about 51 years. The full text of the will is 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 time “Hohapata Heremia”
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 a Whakatane” 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 Farmer witness 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.
[12] The will is stated to be that of Hohapata Heremia and it is stated that he has signed and acknowledged the will. Neither party has been able to locate any other document with the testator’s signature on it, by way of verification or otherwise that his is the signature on the will. However, Mr Temo gave evidence about seeing the testator sign milk cheques, to which I refer in [82].
[13] Waimatao is named as the sole beneficiary under the will. She was a whangai child of the testator.
[14] Tui Tawera was a brother-in-law of the testator (his wife’s brother). The evidence was that he was proficient in English and Maori, and was used by the testator as a translator or interpreter when the testator was dealing with the English language and Pakeha people. Mr Tawera was also used as an interpreter by others in the district.
[15] No information has been able to be located about “R F Smith”, solicitor of
Whakatane, who witnessed the will.
[16] Robert Biddle, who witnessed the will and described himself as “Farmer, Wainui” was a neighbouring farmer of the testator. He was described by witnesses as of Scots and Maori ancestry and proficient in both the English and Maori languages.
[17] The evidence was that both Tui Tawera and Robert Biddle spoke Te Reo o
Tuhoe, the dialect of Tuhoe.
[18] It will be observed that the signatures of Mr Smith and Mr Biddle appear against the other’s attestation clause. I deal with this at [99] - [100].
Positions of the parties
[19] The plaintiff pleads that the testator did not have knowledge of the contents of the will because.
• The will was written in English.
• The testator could speak, read and understand only minimal English.
• The will was not read over to the testator in the Maori language, nor in the Maori language using the Tuhoe dialect.
• The certifications on the will are incorrect.
• The testator was a member and leader of Ngai Tuhoe which strictly adhered to the tikanga (customs and laws) of Ngai Tuhoe.
• The customs and laws of Ngai Tuhoe regulate whakapapa (genealogy) links between a member of Ngai Tuhoe and the land and prevents succession to the land by any person who does not have a direct whakapapa link to the land.
• Waimatao does not have a direct whakapapa link to the land, and the will is in breach of the customs and laws of Ngai Tuhoe.
• The testator had a close relationship to the plaintiff and his family.
• The testator would not have agreed to the contents of the will. [20] The defendant’s case is:
• Despite the use of the English language in the will, the attestations made by the witnesses to the will show clearly that the will was sufficiently explained to the testator so he understood the contents and effect of the will.
• The will carried into effect the testator’s intention to benefit his whangai child Waimatao, who was his favourite.
• The alleged breach of tikanga as a reason for the testator’s lack of understanding of the will, cannot stand in the circumstances of this case.
[21] (A pleading in the amended statement of defence that Waimatao had a whakapapa link to the land was not pursued in closing submissions.)
Factual background
[22] Much of the factual background is not in dispute. The following summary includes matters not in dispute and uncontested evidence.
[23] The testator was a man of mana and high esteem within Ngai Tuhoe. His decisions were respected and his word had authority. He was a distinguished orator and had a profound knowledge of tikanga o Tuhoe. He was widely consulted.
[24] The testator was a brother of Peehimana Karaehe Heremia, who married Beau McGarvey. Their son, Tamahou Peehi Heremia McGarvey (known as Paki or Kupai), was the father of the plaintiff, and of his siblings who gave evidence, Hohapata Daniel McGarvey, Timi-Pokai McGarvey and Te Umu Mary Williams. Thus the testator was their great-uncle whom they regarded as their koru (grandfather/ancestor).
[25] Colleen Kataraina Mohi, who gave evidence, is a daughter of Ngarimu, a sister of the plaintiff, and is therefore a great-grand niece of the testator.
[26] The testator had a close relationship with the McGarvey family and a strong influence on their lives. He would regularly confer with Paki McGarvey and after Paki’s death with, in particular, his eldest son Piki, who worked at Maori Affairs pursuant to a decision taken by the testator.
[27] The testator had no biological children. His wife was Tikina Te Orohi (who also had interests in the Ruatoki B 19 blocks).
[28] The testator had a number of whangai children of whom Waimatao was one. Waimatao bears the name of the testator’s mother, Waimatao Tangatahira. Te Hina Iti Toko (known as Hiki) was a contemporary of Waimatao and also a whangai child of the testator.
[29] When Waimatao and Mr Temo were married in 1942 they lived on the farm on Ruatoki B19 block with the testator. They had six children, of whom some became whangai children of the testator. These included Joseph Tiotio Temo (known as Joe) named after the testator whose Pakeha name was “Joe”, and Hine Ki Runga Temo (known as Irene), now deceased, whose husband Mohi John Rogers gave evidence.
[30] Tikina Te Orohi was a cousin of Waimatao’s biological father, Kohunui Tupaea who married Huka Hiki, Waimatao’s biological mother. The respective mothers of Tikina Te Orohi and Kohinui Tupaea were sisters.
[31] Waimatao was a favourite of the testator among his whangai children (this was the evidence of Mr Temo and Hiki Toko which was not disputed by the plaintiff).
[32] When the testator died in 1972 at the age of approximately 78, no will was found. Mr Temo gave evidence about inquiring of a firm of solicitors in Whakatane for a will, because he believed there was one, but this was not successful.
[33] Over a decade later when application was made to the Maori Land Court for a succession order in respect of the testator’s interests in land, Piki McGarvey, the
eldest brother of the plaintiff, gave evidence that the testator was intestate and did not have any issue. The outcome was the MLC order made in 1983.
[34] Waimatao died on 5 November 1998 and by her will dated 9 September
1987, left everything to her husband Mr Temo, and appointed him sole executor.
[35] In March 2003 Mr Temo conferred with Mr Tahu Weeks, a solicitor at Robinson Law in Whakatane. Mr Weeks wrote to all the law firms in Whakatane, inquiring whether they held a will for the testator. DMQ Lawyers responded that they held a will. Mr Vinay Deobhakta, at that time a partner in DMQ Lawyers, now a barrister in Tauranga, deposed that a search of the firm’s Deeds safe, in response to the letter from Robinson Law, had revealed the will. He said the will was not prepared by DMQ Lawyers, as it was extremely old, but would have been prepared by a predecessor firm and passed on in the normal course.
[36] The discovery of the will led to Mr Temo’s application to the Maori Land Court on 20 January 2004 to overturn the MLC order, and subsequently to these proceedings which were filed on 1 February 2006.
[37] It was common ground that at the time the will was made and at the time of the testator’s death there was no legal impediment to the testator bequeathing his property to Waimatao nor in her being the beneficiary under his will. Further, there is no legal impediment to Mr Temo being the beneficiary under the will of Waimatao.
Some terms and expressions
[38] Many of the witnesses were fluent in both the Maori and English languages. For some, Maori was their first language. The Court was greatly assisted by the services of Mrs Doreen Herehere McCorkindale who acted as interpreter throughout the hearing. The parties agreed upon Mrs McCorkindale as interpreter, she being proficient in both languages and in the dialect of Tuhoe. It will be helpful to explain the following terms and concepts which are important in the case.
[39] Mr George Frederick Hori Thrupp of Taneatua filed an affidavit for the plaintiff but was unwell and unable to give oral evidence, which situation the defendant accepted. Mr Thrupp gave evidence as an expert. He described himself as of Tuhoe descent, born in Ruatoki, whose first language is Te Reo Maori. In relation to the custom of whangai he referred to the evidence given by Professor James Wharehuia Milroy of the Faculty of Waikato University in the appeal of Tangi Biddle or Hohua in the Maori Land Court at Rotorua on 16 February 2001 (2001) 10
APRO 43 (Appeal 2000/8). While Professor Milroy’s evidence in that proceeding was an exhibit to Mr Thrupp’s affidavit, it is a matter of public record in the Maori Land Court having been given before the Maori Appellate Court in appeal 2000/8 and referred to in the decision of that Court delivered on 21 May 2001.
[40] Professor Milroy described the process of whangai as follows:
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.
[41] Mr Thrupp said in his affidavit sworn 30 October 2006:
Whangai would be sent to be raised by the elders but that would not break the whakapapa lines. They would always return to their own whakapapa. They would retain their own name and their own identity. The whangai did not take the name of the elder who was looking after them. They would go to the elders to be raised in the proper way until such an age that they had learnt the necessary ways and it was safe to go back to their parents.
Whangai was a practice that was practised extensively when we were growing up. The extended whanau looked after the children of the whanau and some members looked after certain children until those children were grown up and ready to make their way in life. Others chose to return to their biological parents just as Te Waimatao Temo (“Waimatao”) had chosen to do when they moved off the farm. Whangai could be as permanent or as interim as any of the parties concerned deemed it to be.
[43] In the decision in Hohua the Maori Appellate Court at page 74 summarised the evidence of Professor Milroy in relation to whangai as follows:
Expert evidence presented by Professor Wharehuia Milroy clearly identified in Tuhoe a whangai who cannot readily establish a whakapapa link (or blood relationship) cannot take rights to family land unless the whanau or hapu agree.
Whakapapa
[44] Mr Thrupp said in his affidavit:
In terms of the tikanga to succeed to land it is based on whakapapa. If you don’t have the right whakapapa to that piece of land you cannot succeed to it. That is in breach of tikanga.
[45] Mr McGarvey said in relation to whangai and whakapapa:
[Whangai] does not change the whakapapa that is required in order to have rights to the land … For this reason if Waimatao succeeded to these lands this would be in breach of Tuhoe Tikanga. Our koru would have known this so no matter what, he would not have agreed to this. Our koru would not intentionally breach Tuhoe Tikanga for anybody. This is especially so when it relates to such an important issue as land, which as I say, was one of the most important taonga to him as it is to all Maori.
[46] Colleen Mohi, a great grand-niece of the testator, said that in 1976 she became the first female clerk of the Maori Land Court and worked there for six years. She said under Tuhoe tikanga, it is unusual for whangai to succeed to lands that they could not whakapapa to. She said:
I have had the opportunity to look at the evidence of Te Wharehuia Milroy in the Hohua case which was before the Maori Appellate Court, and I agree with his observation that if succession occurred it was rare and only after agreement by the extended whanau and hapu, usually after a hui had been called for that particular purpose. It is also clear to me that if a whangai did
receive such a sanction by the hapu they would never then succeed to their birth parents’ lands and other taonga.
[47] Ms Mohi had conducted searches of Maori Land Court records which she produced. She said they showed that Waimatao can whakapapa to the lands of her birth parents, Huka Hiki and Kohinui Tupaea, but the relationship between Waimatao and the testator was through Te Orohi, that is through marriage and not through any familial relationship by whakapapa to the Heremia whanau. She said:
The importance of this discussion is that it [sic] no direct whakapapa to the Heremia whanau and therefore under Tuhoe Tikanga her [Waimatao’s] entitlement would have to arise through whanau discussion, extended whanau and hapu consent.
[48] Mr Joe Temo claimed that his mother, Waimatao, whakapapas to the testator’s land interests through:
a) her biological father, Kohinui Tupaea; and b) her whangai mother, Te Orohi.
[49] In answer to cross-examination Joe Temo accepted that to establish the connection in a) it was necessary to go back six generations on one side and five generations on the other side of the whakapapa he exhibited to his affidavit. In the case of b) the connection shown was to Te Orohi’s land interests, not those of the testator, her husband.
[50] The plaintiff submitted that neither whakapapa establishes a close blood relationship to the testator as defined by Professor Milroy. I accept that submission. The evidence does not establish a direct whakapapa link by Waimatao to the testator and the testator’s lands which requires blood relationship. As I noted above, while the claim to whakapapa by Waimatao was made by the defendant in the amended statement of defence, it was not pursued in closing submissions.
The testator’s knowledge of English
[51] Many witnesses who knew the testator, including Mr Thrupp, said he had a very limited understanding of the English language. Mr McGarvey said the only language he heard the testator speak was Te Reo Maori. This was the language of the community in Ruatoki in 1945. Mr McGarvey said that when the testator interacted with Pakeha, for example on farming issues, he always had someone with him acting as an interpreter.
[52] Mr Timi Pokai McGarvey said he rarely heard the testator speaking English;
the whanau conversed only in Maori.
[53] Mr Hiki Toko said in his affidavit, sworn 27 November 2006, that the testator could understand some English but usually used Tui Tawera as a translator.
[54] Mr Joe Temo said he believed the testator’s English was “good enough to get by” when he was dealing with Pakeha. He referred to a negotiation for the first David Brown tractor in Whakatane which he said the testator conducted with “two Poms”, and to the testator’s attendance at Ruakura Farming School and A&P Shows.
[55] There seems to be little dispute that any knowledge or understanding of English the testator may have had, was limited. He would use the services of someone such as Tui Tawera who, it was generally agreed, was proficient in both languages to act as an interpreter when he needed to engage with Pakeha or use the English language.
Alleged promises by the testator
Te Umu Mary Williams (nee McGarvey)
[56] Mrs Williams spoke of the close relationship between the testator and her father, Paki McGarvey. Her understanding was, she said, that the testator would leave his land interests to her father, but that changed after her mother’s death and her father’s remarriage.
[57] Mrs Williams referred to a discussion with Piki, her eldest brother, in which she said Piki related to her that the testator had told him, Piki, that he had not made a will and proposed to make one naming Piki as beneficiary. Unsurprisingly, counsel for the defendant submitted the Court could place no reliance on this hearsay evidence. In fact there is an element of double hearsay – evidence of what the testator is said to have told Piki, and what Piki told Mrs Williams.
[58] Hearsay statements are not admissible as evidence of the truth of what was said. The basis for this well-established rule of evidence is the inherent risk of unreliability of hearsay statements. That risk is present in this case and I must therefore set to one side this aspect of the evidence of Mrs Williams. I place no reliance upon it.
[59] Mrs Williams gave evidence of an event concerning the testator in about May
1972, shortly before the testator died. She said she returned home from teaching in Waimana, about half an hour away from Ruatoki. She was told by her daughter that the testator wanted to see her urgently. She described how when she arrived at his home he was dressed in a suit and tie. He invited her in to the house and they were alone. She said he then made a statement addressed to her and her younger siblings, which was a series of blessings.
No koutou te mana körero. No koutou te mana whenua.
No koutou te mana o runga i te Marae. No koutou te mana tangata.
No koutou te mana o tua.
[60] The English interpretation as given by Mrs McCorkindale is:
Yours is the voice of authority.
Yours is the power, the authority over the land. Yours is the authority on the Marae.
Yours is the power of the people.
Yours is the power from your ancestors.
Yours is the power from the Marae that is located at Ruatahuna.
[61] Mrs Williams said that she had the realisation her koru, the testator, was making an ohaaki, an oral will. She thought it should have been said to the male members of the family, as her father and her two elders brothers were then still alive, but now, 33 years later with those people having all passed on, she said it “makes sense”. In answer to cross-examination, she said that as eldest girl of the whanau she had that mana as well and it was for the testator to dictate to whom he gave his blessings.
[62] She said she considered these actions showed the testator intended the land to be succeeded to in accordance with Tuhoe Tikanga, that he had no knowledge of any previous will, and no intention of leaving the land to Waimatao.
[63] In answer to cross-examination, Mrs Williams agreed there was never anything formally recorded of this statement she believed was an ohaaki.
[64] Mrs Williams was articulate and gave her evidence in a considered manner. While I have no reason to doubt her evidence about this incident with the testator, it has some puzzling aspects.
[65] Mrs Williams said, in answer to a question in cross-examination:
… [it was] the nature of our whanau that everything our koru did he discussed it with our father and with my brothers. That was the practice of tikanga.
Yet, it appears on this occasion the testator did not. Nor did Mrs Williams say she discussed what would have been a momentous event, with anyone else at the time.
[66] While Mrs Williams drew her own inferences and deductions from the testator’s blessings set forth above, exactly what the testator was bestowing on her and her younger siblings is less than clear. Did the testator really intend to confer this power and authority on Mrs Williams and her younger siblings to the exclusion of her father and her two elder brothers who were then still alive? Did he really
intend to convey to them, the younger siblings, his land interests, again, to the exclusion of the two elder brothers and their father?
[67] The younger members of the McGarvey family would succeed to interests in the same blocks of land in which the testator held interests, other than through the testator (Mr McGarvey gave evidence about those successions). What did the testator mean and intend when he referred to “authority over the land”? It may well have been a reference to land to which he knew the younger McGarvey family members would succeed through whakapapa to persons other than him.
[68] On the basis of this evidence I am not able to draw the clear inferences and reach the firm conclusions that Mrs Williams said she did. In particular, I do not consider the evidence provides a sound basis for concluding that the testator had no intention of leaving his land interests to Waimatao.
Mohi John Rogers
[69] It is convenient at this point to refer to another intention regarding the disposition of land interests said to have been expressed by the testator.
[70] Mr Rogers was married to Hine Ki Runga (Irene), a daughter of Waimatao, who was also a whangai child of the testator, both mother and daughter being whangai children to the testator.
[71] Mr Rogers said in his affidavit that in approximately 1967 the testator’s wife, Tikina Te Orohi came to get him and his wife as the testator was gravely ill. In giving oral evidence he corrected that date to 1970.
[72] He said Tikina’s two sons, Henare and Bana, were also present. He said the testator showed him a copy of the will, which was the same will as has now been located. This will left all the testator’s lands to Waimatao. He said the testator stated he wanted to put Irene into the house block, “to make sure she got something as well”. But this was not done. Irene died in the year 2000.
[73] Mr Rogers said he was aware that Tui (Tawera) signed the will as a witness. This is not correct; Tui Tawera was named as executor of the will. Mr Rogers corrected his evidence on this point in his oral testimony.
[74] In answer to questions from the Court, Mr Rogers said he did not read the document he saw in 1970 – “I just read the top piece of the will where it stated Waimatao’s name and Tui Tawera there”. He said he next mentioned seeing the will when they met with the Whakatane lawyer, Mr Weeks, about trying to form a family trust (which as we know from the evidence of Mr Temo and Mr Weeks, was in
2003).
[75] Mr Rogers was very vague in his evidence and there were several inconsistencies. His identification of the document he saw in 1970 as being the will, was unsatisfactory. If, as he said, he only looked at “the top piece” and did not read it he could not be satisfied that it was the will, which was an exhibit to his affidavit sworn 27 November 2006.
[76] There is also the factor that neither of Tikina Te Orohi’s two sons, who he said were present on this occasion, gave evidence. There may be very understandable reasons for this, but the situation is that independent witnesses who may have been able to confirm Mr Rogers’ evidence were not called by the defendant.
[77] For all those reasons I conclude that I cannot rely on the evidence of Mr
Rogers on this matter. I set it to one side.
Other evidence
Te Hina Temo
[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. This was approximately a year after the testator’s death in 1972. When they made inquiry at a lawyer’s office they were told that there had been a fire and there was no record of the testator’s will. He said that on that basis they gave up looking. However, in 2003, after discussion with Mr Tahu Weeks, a solicitor in Whakatane who was also a relative of Mr Temo, it was decided to search other law firms for the testator’s will. Mr Weeks was able to locate the will.
[80] Mr Temo said he was completely unsurprised at the contents of the will. He was aware of the close relationship between the testator and Waimatao and believed in the testator’s “word” through his will. He said that Waimatao was the testator’s “pet” and very loved by the testator.
[81] He emphasised that the testator knew they were aware he had made a will, it was because they knew the testator had made a will that they went looking for it.
[82] Mr Temo said of the testator’s signature on the will:
His signature is neat and practised. I used to see him sign his name on cheques for the milk factory. The signature on the will is the same.
[83] I consider Mr Temo’s evidence to be significant. His belief that the testator had made a will dated from the visit to Whakatane in 1945, and he acted pursuant to that belief following the testator’s death in 1972 when he made inquiries in Whakatane for a will, and again in 2003 when the opportunity presented itself to discuss the matter with a lawyer who was both a relative and a partner in a Whakatane legal firm. He had a long and close association with the testator from the time he met Waimatao until they left the farm approximately six years after their
marriage, when Te Orohi died and the testator took another wife. Throughout that period Waimatao continued to live on the farm with the testator as she had as a whangai child.
[84] While Mr Temo and Waimatao did not make further inquiries for the will after their inquiry of one firm of lawyers in Whakatane in about 1993 (which may well have revealed the will at that stage), Mr Temo’s conduct when the topic was again raised in 2003 was entirely consistent with the belief he held all along. Though he may have been uncertain about some details of some events in the distant past, I found Mr Temo a consistent and credible witness.
Te Hina Iti (Hiki) Toko
[85] Mr Toko said he was a whangai son of the testator who was brought up with Waimatao, who was his whangai sister. They were raised by the testator on his farm. Mr Toko said that he lived “a slave’s life”. He worked very hard on the farm and was treated harshly.
[86] His only happiness was in his sister Waimatao. She would often shield him from hidings knowing that the testator would not hit her. He said “growing up on the farm, Waimatao and I were the princess and the slave”. He described how Waimatao, as they grew older, “met this flash joker, Hina Temo”. He described Mr Temo as a hard worker who would work in the factory and on the land as well. Mr Temo’s presence on the land improved life for Mr Toko because they worked it together.
[87] He said he did not want the land for himself. He believes it should be his sister’s because it was she who looked after the testator. He was not surprised to find that she had been left the land. He said of Waimatao in relation to the testator “my sister was his heart”.
[88] Mr Toko is an elderly gentleman with a serious hearing impediment. His first language is Maori. He found giving evidence quite difficult, but I have no reason to doubt his credibility.
[89] It is relevant that under the MLC order Mr Toko is entitled, pursuant to the succession order which vested the testator’s interests in land in a number of persons including Paki McGarvey (one-tenth), that Mr Toko is also named as a successor as to one-twenty-fifth. If the will is upheld Mr Toko stands to lose the interest to which he succeeded under the MLC order. Nonetheless, he supports the defendant’s claim to succeed to the land through Waimatao.
Legal principles
[90] From analysis of relevant authorities the following principles emerge:
a) It is essential to the validity of a will that the testator knew and approved its contents at the time of execution: Hastilow v Stobie (1865) LR 1 P&D 64.
b)In Guardhouse v Blackburn (1866) LR 1 P&D 109 a judgment of Sir J P Wilde, as was that in Hastilow v Stobie, a number of propositions referred to as rules were stated at p 116. Those relevant to this case are first, that before a paper duly executed is entitled to probate, the Court must be satisfied that the testator knew and approved of the contents at the time he signed it. Secondly, that except in certain circumstances, where suspicion attaches to the document, the fact of the testator’s execution is sufficient proof that he knew and approved the contents. Fifthly, that (subject to fraud in obtaining execution of the document) the fact that the will has been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with his execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof. (Emphasis added.)
The fifth proposition or rule stated by Sir J P Wilde, makes it clear that reading the will over to the testator, is only one way in which the contents may be brought to his notice. There is no absolute or strict requirement that the will be read over to the testator.
c) In Re Morris [1970] 1 All ER 1057 it was held that the fact a testator read and executed a document raised a prima facie inference that he knew and approved its contents, but there was no rule precluding the Court from considering all the evidence in order to arrive at the truth, whether fraud was suggested or merely a mistake. Guardhouse (where the Court had declined to look at evidence outside a will which was read over and duly attested, despite clear evidence of mistake) was no longer binding in that respect. There had, said Latey J at 1063, been “… a progressive erosion of the rigidity of the rule”.
Latey J went on to refer with approval to a statement by Sachs J in
Crerar v Crerar (1956) unreported, that the Court has:
… to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of the material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive nor do they raise a presumption of law.
d)In Tanner v The Public Trustee [1973] NZLR 68 the Court of Appeal in New Zealand adopted the reasoning in Crerar and Morris.
e) In Howie v Chatterton where there were grave suspicions about the validity of a will (a will providing for all the children of the testatrix was revoked by one in favour of only one child and there was evidence of serious mental deterioration of the testatrix) Herdman J said, at 601, that the relevant question for the Court is “Has the defendant affirmatively established to my satisfaction that the testatrix
knew what she was doing when she executed this will?”, looking at all the evidence and considering all the circumstances. The approach of Herdman J was upheld on appeal.
f) In these cases the Court looked at all the circumstances surrounding the execution of the will to determine whether the testator knew and approved of its contents, even when the will or codicil had been read over to the testator. A like inquiry could surely lead to the conclusion that there was in fact, knowledge and approval by the testator of the contents of the will sufficient to answer the suspicion raised by the party challenging the will, such that the Court can be satisfied that the testator knew what he was doing when he executed the will (to adopt the words of Herdman J in Howie v Chatterton), even though it had not been read over to him. The cases do not establish or support a strict requirement that the will be read over to the testator. In this respect, I have previously referred to the fifth proposition stated in Guardhouse v Blackburn.
g) In Barry v Butlin (1838) 2 Moo PCC 480,488 it was stated, in the context of determining knowledge and validity where the party who prepared the will took a legacy under it, that although evidence of the instructions given by the testator and the reading over of the instrument are the most satisfactory proofs of the testator’s knowledge of the contents, they are not the only description of proof by which the cognisance of the contents of the will may be brought home to the testator, even in a case of doubtful capacity. The Court stated at 485-
486:
The Court would naturally look for such evidence; in some cases it might be impossible to establish a will without it, but it has no right in every case to require it.
h)In Re Whyte [1969] NZLR 519 the will was not read over to the testatrix because she expressed the wish that it should not be. But it was explained to her that the new will contained exactly the same provisions as her previous will with the substitution of a new trustee.
However, by mistake, the provision devising and bequeathing her whole estate to her husband was omitted. The Court confirmed it was essential to the validity of a will that the testator should know and approve of its contents. The Court was satisfied that this was not the case and the will was declared to be invalid. However, the case is of note for the fact that validity was not expressed to turn on whether or not the will was read over, and there was no suggestion that having the will explained but not read over would have been insufficient if the will had in fact replicated the previous will in accordance with the instructions of the testatrix.
i)In Hannah v Hannah [1954] NZLR 837 the testatrix was Lebanese and her will had been lost. In establishing the existence of the will and whether the testatrix knew and approved of its contents, reference was made to r 521 of the Code of Civil Procedure (now r 658 of the High Court Rules pursuant to SR 1985/328) which provided that where it appears that the testator was blind or illiterate and there is no certification in an attestation clause that the will was read over to and understood by the testator before execution thereof, the applicant for probate must show by affidavit from at least one of the subscribing witnesses, if they or either of them be living, that it was read over to the testator before its execution, or that the testator had at such time knowledge of its contents. The Court held the rule did not mean that other means of proof could not be put forward, and if satisfactory be accepted as proof, if the means of proof required by the rule could not be provided.
j)In Re Erepata (M12/96, 16 December 1997) the testatrix’s preferred tongue was Maori and she had difficulty understanding anything other than simple English. She also had difficulty in writing. In 1990 she executed a will leaving her whole estate to the defendant and appointing him sole executor. In 1992 she executed a codicil to the will confirming the will. In 1993 she revoked all previous wills and left her whole estate to the plaintiff and appointed the plaintiff sole
executor. At issue were the testamentary capacity of the testatrix and whether the 1993 will had been entered into under undue influence of the plaintiff. The evidence was that the 1993 will was explained to the testatrix by her solicitor in English and the contents were explained to her in Maori by one of the attesting witnesses. He stated that he satisfied himself that she fully understood the will and the contents of the codicil subsequently executed. The decision in that case focussed primarily on the issues of testamentary capacity and undue influence, so the decision is not of direct application to the circumstances in this case. However, Morris J at p 11 adopted as the “locus classicus” the statement from Banks v Goodfellow (1870) LR 5
QB 549,567 where Cockburn CJ said:
As to the testator’s capacity, he must, in the language of the law, have a sound and disposing mind and memory … It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
Summary
[91] The authorities establish that when determining whether a testator had knowledge and approval of the contents of his will, the Court is entitled to consider all the evidence in order to arrive at the truth, no matter what the basis for challenging the will.
[92] In the cases referred to, the inquiry has generally led to the conclusion that the testator did not know and approve of the contents of the will. But it must be the case that the same inquiry may lead to the conclusion that the party propounding the will has discharged the onus to satisfy the Court that such knowledge and approval did exist in the mind of the testator.
[93] The authorities also establish that the reading over of the will creates only a prima facie inference that there was sufficient knowledge and approval. There is no requirement that the will is in fact read over.
Application of the principles
[94] The plaintiff’s closing submissions placed much reliance on the fact that the will had not been read over to the testator. That inference was drawn from the attestations of the two witnesses – in the case of the Maori witness, that I have a 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. In the case of the solicitor – that before attesting the said will I did satisfy myself that the said testator did understand and I verily believe that he does understand the effect of the said will.
[95] The attestations do not state that the will was read over to the testator. Nor do they state that the English language of the will was translated to the testator in Maori or more specifically, Tuhoe dialect. However, both witnesses were prepared to certify and did certify, that they were satisfied that the testator understood the effect of the will. That to my mind meets the essential criterion that the testator must know and understand the contents of the will and must approve it. If having had made known to him the effect of the will, the testator did not approve it then he would not have signed it.
[96] On the 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.
[97] The will was after all, a fairly straightforward document. In this respect I do not accept the submission for the plaintiff that the complex language used in the will (e.g. … all my real and personal property of whatsoever nature and wheresoever situate …) is difficult to understand, particularly by a person with limited knowledge of the English language. The will comprises a single paragraph. In it the names of the testator, Hohapata Heremia, and the sole beneficiary, Waimatao Kohunui, appear in capitals. They are clearly visible and would have been readily recognisable by the testator. The only other name that appears in the text of the will is that of Tui Tawera. That name is not in capital letters, but again, would have been readily recognisable by the testator. It would have been clear to Mr Heremia that no other names are mentioned. It would have been a straightforward matter for an explanation of the provisions of the will to be provided in Maori to the testator, as it applied to and in respect of each of the named persons. I am quite satisfied that the contents of the will could have been simply and accurately explained to the testator in Tuhoe Maori.
[98] A further, to my mind very relevant point, is the care that was taken in preparing this will, including the attestation clauses to recognise the significance of the two languages involved. R F Smith, one of the witnesses to the will, in Whakatane in 1945 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. That he was alert to the necessity to ensure that his client, the testator, understood the will is evidenced by the care with which the attestation clauses were drafted. They recognised the different roles and abilities of the Maori witness and the solicitor, in being satisfied that the testator understood the effect of the will. It is significant to my mind that the solicitor was prepared to certify that he satisfied himself and verily believed that the testator understood the effect of the will. It is a reasonable inference, and indeed has to be assumed, that the solicitor would not have so certified unless he was so satisfied.
[99] The plaintiff in submissions made something of the fact that the signature of the solicitor appears against the attestation clause for the Maori witness and the signature of Mr Biddle appears against the attestation clause for the solicitor. It was
submitted that, contrary to the defendant’s submissions, this showed a lack of care in the preparation and execution of the will.
[100] I do not accept that submission. It is more likely that simply by mistake, each signed in the place intended for the other. The attestation clauses are carefully drafted with discrete application for each of the two witnesses. I do not consider that either could have been confused as to what it was he was certifying.
[101] Section 9 of the Wills Act 1837 (imp) states that no will should be valid unless it is in writing, signed at the foot or end by the testator, or by some other person at the testator’s direction, and that the testator’s signature:
… shall be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.
[102] To meet the circumstances of this case the solicitor preparing the will has gone much further than the standard requirement of s 9. He has ensured that the circumstances of the case have been assessed and reflected in the particular forms of attestation applicable to each of the two witnesses.
[103] The authorities I have referred to above make it clear that, even though the will has not been read over, there is no impediment to the Court coming to the conclusion that the testator had sufficient knowledge of the contents of the will and approved the contents of the will. For all the reasons stated above, that is the conclusion I reach.
Whakapapa
[104] That brings me back to the issue of whakapapa and the plaintiff’s contention that the testator would not have made this will in favour of Waimatao because it is in breach of Tuhoe tikanga. That opinion was expressed, I have no doubt sincerely, and certainly fervently, at many points in the evidence of the witnesses for the plaintiff. I have accepted the plaintiff’s evidence that Waimatao did not whakapapa to the testator’s interests in land. That 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, but there are contrary indications that might equally explain his bequeathing all his property to Waimatao.
• 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.
[105] In summary, there is evidence which establishes to my satisfaction that the testator knew what he was doing when he made his will.
[106] Finally, I would observe that there is no explanation or evidence available as to how or why the will might exist, if it were not the will of the testator as acknowledged by his signature on the will.
Result
[107] The plaintiff’s application for declarations is dismissed. There will be judgment for the defendant.
[108] I direct that a copy of this judgment be forwarded to the Maori Land Court.
Costs
[109] I was advised that both parties are legally aided. In those circumstances no order for costs may be made. I reject the pleading of the defendant that the application of the plaintiff was frivolous and vexatious. The application raised
serious issues.
Potter J
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