Meredith v Meredith

[2023] NZHC 2354

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000114

[2023] NZHC 2354

IN THE MATTER OF

An Application for Probate in Solemn Form.

AND

The Wills and Estate of the late ANI HOSE

UNDER

Section 5(1) of the Administration Act 1969

BETWEEN

SONIA MEREDITH

Plaintiff

AND

PAUL MEREDITH

First Defendant

AND

LORNA MANAWA HOSE

Second Defendant

Hearing:

5 July 2023

Appearances:

M G Locke for the Plaintiff

No appearance by or on behalf of the First Defendant Second Defendant in Person supported by June Manu

Judgment:

28 August 2023

JUDGMENT OF POWELL J

This judgment was delivered by me on 28 August 2023 at 3.30 pm pursuant to

R 11.5 of the High Court Rules

…………………..

Registrar/Deputy Registrar

SONIA MEREDITH v PAUL MEREDITH [2023] NZHC 2354 [28 August 2023]

[1]    The plaintiff, Sonia Meredith (“Sonia”),1 has applied for probate in respect of a will dated 20 September 2004 (“the 2004 will”) made by her mother, Ani Hose (“Ms Hose”). Ms Hose died at Te Awamutu on 15 July 2021.

[2]    There is no dispute Ms Hose made the 2004 will, but the question that falls for determination in these proceedings is whether it was replaced by another will, apparently executed by Ms Hose on 14 June 2021 (“the 2021 instrument”).

[3]    As members of the whānau identified as potentially having an interest in the proceeding have been served and no steps have been taken in opposition, the hearing proceeded by way of formal proof. The second defendant, Lorna Hose (“Lorna”), who appeared at the hearing of the proceedings agrees that the 2021 instrument was not a valid will but questions whether Sonia should be the executor of the 2004 will, given her role with regard to the 2021 instrument.

The issues with the 2021 instrument

[4]    In the supporting affidavit filed by Sonia, she has detailed the reasons why she believes the 2021 instrument was not valid and/or did not reflect Ms Hose’s intentions. Specifically, Sonia raised issues as to whether her mother had sound mind, memory and understanding at the time the 2021 instrument was apparently executed, and also noted a number of issues with regard to the way in which the 2021 instrument had apparently been executed by Ms Hose.

[5]    Although much of the information Sonia has set out in her affidavit is hearsay and therefore technically inadmissible, I am nonetheless satisfied it should be admitted in order to determine the proceedings. Specifically I note that no member of the whānau has taken any steps in those proceedings to support the 2021 instrument. Instead there now appears to be a clear consensus, confirmed by Lorna, that the 2021 instrument is not a valid will and it is the 2004 will that reflects Ms Hose’s testamentary intentions. Given that position I consider the circumstances relating to the various statements appended to Sonia’s affidavit provide reasonable assurance that

1      Due to the commonality of surnames, and meaning no disrespect, I generally refer to individuals in this judgment by their first name.

the statements contained in the affidavit are reliable, and that undue expense or delay would be caused if the makers of the statements were required to be witnesses.2

[6]    It is apparent from the material provided by Sonia that the whānau had concerns with Ms Hose’s mental state after she apparently failed a Mini- Addenbrooke’s Cognitive Examination (Mini-ACE or M-ACE) on 23 April 2021. Those results had led to a whānau meeting on 2 May 2021 to discuss concerns regarding their mother. At the same time it appears there was some impetus for Ms Hose to prepare a new will. This was provided by one of her sons, Edward Hose (“Edward”), for whom no provision had been made in the 2004 will.

[7]    Against that background a new will was drafted by Sonia’s son Paul Meredith (“Paul”). Paul has a law degree but is not a practicing lawyer. He met with Ms Hose and prepared a new will but was not, however, present when it was executed on 14 June 2021, only a month before Ms Hose passed away.

[8]    Since Ms Hose passed away, various issues have come to light. First, it is apparent that neither Ms Hose nor the witnesses initialled the first four pages of the 2021 instrument, nor was a handwritten amendment dating the document initialled. Lorna has likewise noted that at the time the 2021 instrument was purportedly executed Ms Hose had taken medication which made her drowsy and unable to concentrate. Finally, three emails have been received from Paul that shed light on the circumstances under which the 2021 instrument was drafted. In the first, dated 20 July 2021, he stated:

Kia ora James

Lorna Hose, who is my aunty, has asked me to provide you a copy of the Will attached of which I am the named executor. I am the grandson of Ani Hose, son of her eldest child, Sonia Meredith. I offer a bit of a background which may be of assistance in your consideration of this Will.

This Will was written at the direction of my grandmother. We visited her the weekend of 15/16 May. My Mother was present. There was some discussion in relation to who was to be included in the Will. I subsequently came home, and that week drafted up a Will for signing according to her wishes. I am happy to sign and swear an affidavit to that effect. I also believe she was of sound mind. My partner has recordings of her from the Saturday night

2      Evidence Act 2006, ss 18(1)(a) and 18(1)(b)(ii).

discussing family history which clearly illustrate this. I can supply these recordings.

I emailed the Will to my brother on the 21st of May to print out and take down to Kihikihi for signing and witnessing, however he do this so he sent the Will on to our Uncle Edward Hose to organise.

Uncle Edward subsequently printed the Will out and took it over for signing and witnessing on. I understand there is some conjecture over the mental capacity of my grandmother at that time. I understand Lorraine Anderson who was one witness believes she wasn’t of fit mind. I discussed the matter with my Uncle Edward who is of the opinion that she knew that she was signing the Will prepared by me. My cousin, Angie Hose, daughter of Edward took a video of the signing. I can supply this. It appears to me she is comprehensible of what is happening, albeit in some considerable discomfort.

I would merely say that the named beneficiaries and the distribution of assets in the signed Will is what my grandmother decided on when we discussed her will the weekend 15/16. Again, there is no doubt in my mind that she was of sound mind and knew what she was doing.

I note that each page of the Will was not initialled. I just assumed this would have been done. However, I can attest that the signed Will and its contents is the one I drafted. The only change is that at one point I refer to my grandmother as Annie rather than Ani. My brother corrected that before forwarding on the document to my Uncle Edward. Annie is the English equivalent of Ani. My grandmother used both names which is common for Māori of her generation.

I also note that the month of May has been crossed out on the Will and June written in. Thinking that the Will would be signed quite readily after I sent it off, I typed in May. However, it was not done until the following month in June. When I learned of this, I told my mother to tell my uncle that he needs to cross out May, write in June and get my grandmother and witnesses to initial this. The typed month was crossed out and June written, but he did not get around to going across to Kihikihi and getting this initialled.

Please note there is another Will from 2004. The named beneficiaries are Sonia Meredith, Raewyn Heke and Lorna Hose. Edward Hose is not included in this Will. That named executor is Sonia Meredith. The Will is held by Jespersen & Associates, Henderson, Auckland.

I hope this information helps. Paul Meredith

027[xxx-xxxx]

[9]Paul went on to add in a second email dated 8 November 2021:

Sorry, my partner recalled my Grandmother saying a few times during that weekend of the 15/16 May that Edward had had [sic] her share and he wasn’t to be included. I don’t recall but my partner spent some time with [her] alone. I know she didn’t want my Aunty Raewyn in as they had had a falling out.

My mother relayed this to me and my advice was just divide it equally otherwise you will end up in Court. I was more thinking of my Aunty Raewyn who I had heard was taking advice at the time about what she was entitled to., Anyway, what I wrote was what my grandmother finally instructed but I would probably say on reflection that I did influence her.

Cheers Paul

(Emphasis added)

[10]Finally, Paul emailed on 15 November 2021:

Hi Kristina. Please see attached as requested. I should say the reason for the second Will was that my grandmother did not want to include my Aunty Raewyn and was thus wanting a new one. There was some animosity there in recent times. I understood that my Aunty intended to contest the Will if she was not included. My advice to my grandmother was to include her in the Will to avoid litigation. My grandmother then took the same position with my Uncle Edward, i.e. include him as well to avoid him contesting the Will. Her position before that was that she thought he had his share. She particularly communicated that to my partner. This was during the weekend 15/16 May 2021 which my partner and I spent with my grandmother. My mother was present as well. After that weekend, I came home and drafted the Will attached. If it helps, I could outline everything I know in chronological order?

Further, my mother has indicated her reluctance to renounce herself as executor of the Will and is prepared to fly back from Melbourne to sign any papers. It might be good for her to understand timeframes and what it looks like if Graham is the executor.

Cheers Paul

Discussion

[11]   As Mr Locke, on behalf of Sonia submitted, none of the matters raised by themselves would ordinarily result in the rejection of the 2021 instrument but cumulatively I accept it is appropriate for probate to issue in relation to the 2004 will rather than the 2021 instrument. In the circumstances I accept Mr Locke’s submission that the 2021 instrument, and the necessity for this application, “has arisen due to an unfortunate series of events”, where despite the best intention of individuals there was a likelihood of inappropriate interference on a person made vulnerable because of her medical issues. In addition the delay between the identified meeting between Paul and Ms Hose and the purported signing of the 2021 instrument raises further issues about Ms Hose’s ability to understand what she was signing at the time it was signed.

[12]   I have also taken seriously Lorna’s concerns, explained at the hearing at Sonia being appointed executor. There is no formal opposition to the application however, and I note the reason Lorna now opposes Sonia being appointed executor was because of Sonia’s role with regard to the 2021 instrument. As it is Sonia that has taken responsibility for the present proceedings in order to have probate granted for the 2004 will rather than the 2021 instrument I am satisfied there is no basis for not now appointing Sonia as executor of the 2004 will.

Decision

[13]   Probate is granted in respect of the 2004 will and Sonia Meredith, the sole executor named in that Will, is appointed the sole administrator of Ms Hose’s estate.

[14]   Given the circumstances, and noting the request of Sonia, there is no order as to costs.

Powell J

Solicitors:

Jespersen and Associates, Swarbricks, Te Awamutu

Counsel:
M G Locke

Copy to: L M Hose