Mihinui v Bowman - [2021] NZHC 1991

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-657

[2021] NZHC 1991

UNDER the Wills Act 2007

IN THE MATTER

of an application by Roku Adrian Mihinui of Rotorua, contracts manager, for an order under section 14 of the Wills Act 2007 re the estate of Andrew Ranireti Bowman

BETWEEN

ROKU ADRIAN MIHINUI

Applicant

AND

NGAWINI ANNE BOWMAN

Respondent

Hearing: 2 August 2021

Appearances:

J R Sparrow for the Applicant

N Bowman self-represented Respondent

Judgment:

3 August 2021

JUDGMENT OF COOKE J

[1] By application dated 27 October 2020 Mr Roku Mihinui seeks an order under s 14 of the Wills Act 2007 (the Act) that a document prepared by Holland Beckett solicitors be declared the valid will of his late nephew Mr Andrew Bowman. Under that document Mr Mihinui is appointed executor.

[2] The application is opposed by Ms Ngawini Bowman who was the adoptive sister of Mr Andrew Bowman. Under the rules of intestacy the deceased’s entire estate would be distributed to Ms Bowman.1 Under the document to which the application

1 Both the deceased and his sister were adopted, but that would not affect the distribution of the intestate estate.

MIHINUI v BOWMAN [2021] NZHC 1991 [3 August 2021]

relates the respondent is effectively excluded from directly benefitting, and the estate would be distributed to cousins and the wider whānau, although she would be a discretionary beneficiary of a trust that receives the residue of the estate.

[3] The application is supported by three affidavits, one from the applicant, and two from the employees of Holland Beckett who attended upon Mr Bowman, took his instructions and authored the document to which the application relates. The first is from an Estates Manager at Holland Beckett, Ms Fiona Managh who was the senior person who dealt with the instructions, and who is the primary author of the document. The second is from Ms Elizabeth Butler, a solicitor at Holland Beckett who attended with Ms Managh on the deceased, and who confirmed the correctness of the document.

[4] As indicated, Ms Bowman opposes the application and has also filed an affidavit in opposition. Ms Bowman also sought that the witnesses who had prepared affidavits in support of the application be available for cross-examination at the hearing. Ms Bowman represented herself. Prior to the hearing, Mallon J directed that she provide a list of the questions that she wanted to put to the witnesses. She duly did so and I discussed the list with Ms Bowman, and with Mr Sparrow for the applicant, and ruled that some of the matters she wanted to ask about were not admissible, whilst recognising the need for a degree of latitude for questioning by a litigant in person.

[5] I also record that at the hearing there was more general discussion about Ms Bowman’s situation should this application be granted.

The facts

[6]I begin by recording the facts. This will involve making some factual findings.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mihinui v Bowman

Details

AGLC: Mihinui v Bowman [2021] NZHC 1991
Case: [2021] NZHC 1991
Decision Date: 3 August 2021

CaseChat Overview and Summary

Mihinui applied for a declaration that a document prepared by Holland Beckett solicitors be recognised as the will of his late nephew, Andrew Bowman, under s 14 of the Wills Act 2007. The application was opposed by Bowman's adoptive sister, Ngawini Bowman, who would inherit under the rules of intestacy. The document in question was a typed note prepared by Ms Fiona Managh, an Estates Manager at Holland Beckett, recording instructions given by the deceased to Ms Managh and another solicitor, Ms Elizabeth Butler. The court was required to decide whether the document met the requirements of s 14 of the Act, and if so, whether the opposition raised any grounds for denying the application. The court considered the content of the document, the deceased's testamentary intentions, and the opposition's arguments. It found that the document appeared to be a will, did not comply with s 11, and came into existence in New Zealand. The court accepted that the document recorded the deceased's reasonably clear and unambiguous instructions for the preparation of a will. It concluded that the opposition's grounds did not go to the grounds for making the orders sought under s 14. The court granted the application and declared that the document was to be treated as the deceased's will in accordance with s 14 of the Act.

The court's orders included that the parts of the document from the file note dated 30 July 2020 quoted in the judgment are to be treated as Mr Bowman's will in accordance with s 14 of the Act. The court did not consider it necessary or appropriate to incorporate other documents in the order to make up the relevant documents that comprise the will. The document in question was a typed-up note prepared on the basis of reasonably clear instructions given by the deceased to representatives of a firm of solicitors, and that document alone should be regarded as his will.

Orders