Mihinui v Bowman
[2021] NZHC 1991
•3 August 2021
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.
[7] The deceased and the respondent are adopted brother and sister. On 1 November 2019 their mother died. In accordance with her will she left all her property to the deceased. No provision was made for the respondent.
[8] The mother’s estate was distributed in or about 24 March 2020. At the time the deceased was advised by Ms Managh that he should himself make a will, especially given his inheritance. She provided him with a will instruction sheet for that purpose. I note that the deceased had health issues — he was confined to a wheelchair and also suffered from cancer.
[9] On 13 July 2020 Ms Managh received a phone call from the deceased’s aunt, Ms Mahara Johnstone, advising that she was assisting him with his will and that he was currently in hospital in relation to his cancer.2 She gave instructions on his behalf that Ms Managh prepare enduring powers of attorney for personal care and health, and in relation to property. Those instructions involved Ms Johnstone being appointed the attorney for both. 30 July was agreed as the date for Ms Managh to attend the deceased’s home to arrange execution of those documents.
[10] Those documents were prepared, and Ms Managh and Ms Butler attended on the deceased at his home to have them signed on 30 July. When they did so he told them that he wished to change who was to hold his enduring power of attorney in relation to property matters. He said that rather than Ms Johnstone, Mr Roku Mihinui should be appointed as the attorney for his property matters. The power of attorney in relation to personal care and health was then signed, and it was agreed that the power of attorney for property would be re-drafted by Ms Managh.
[11] Following executing the power of attorney for personal care and health Mr Bowman then gave instructions as to what should be in his will. I accept Ms Managh’s evidence that this took her by surprise. She explained that she did not expect to receive these instructions, and initially struggled to find paper in which to write them down. But I also accept her evidence that he nevertheless gave clear instructions on what was to happen with his estate. Ms Managh made handwritten notes of those instructions. Ms Managh and Ms Butler later used those notes to create a typed-up file note, which recorded the instructions. Both of them signed that file note.
2 Ms Johnstone has herself since died.
[12] Ms Johnstone was present when Mr Bowman gave the instructions, at least for part of the time. Ms Managh asked Mr Bowman whether he had any objection to her being present while he gave the instructions, and he said that he did not. Ms Johnstone also made a note of what he said.
[13] Ms Johnstone was also tasked with providing the proper names of the deceased’s cousins who had been identified as one of the beneficiaries in these instructions, and she subsequently sent through the names of the cousins to Ms Managh on 2 August.
[14] On 6 August Ms Managh received a phone call from the deceased’s aunt, Ms Ngaroimata Mihinui advising the deceased had had a heart attack and was in Tauranga public hospital intensive care unit. Ms Managh was requested to attend the hospital to have the deceased’s will signed. Ms Managh phoned Ms Johnstone to confirm the situation.
[15] Prior to attending the hospital Ms Managh and Ms Butler prepared a will for execution in accordance with the instructions, but which included some suggestions they had on his instructions which they intended to discuss with him.
[16] Ms Managh and Ms Butler and a legal secretary then went to the hospital. On arrival it was established that Mr Bowman was unconscious and unresponsive and they were advised he would not survive. The deceased died on 6 August 2020 without having executed the draft will.
[17] The application seeks that the typed up record of the instructions (and/or associated documents) be recognised as Mr Bowman’s will under s 14 of the Act.
The relevant principles
[18]Section 14 of the Act provides as follows:
14 High Court may declare will valid
(1)This section applies to a document that—
(a)appears to be a will; and
(b)does not comply with section 11; and
(c)came into existence in or out of New Zealand.
(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
The court may consider—
(a)the document; and
(b)evidence on the signing and witnessing of the document; and
(c)evidence on the deceased person’s testamentary intentions; and
(d)evidence of statements made by the deceased person.
[19]In Re Estate of Campbell MacKenzie J held:3
[11] That document must meet the three requirements in s 14(1). The first is that it appears to be a will. From the cases in which the section has been applied, it emerges that this requirement is concerned with the content of the document and what it conveys, rather than its form. As well as documents which have the physical form of a will, such as draft wills and unsigned or wrongly signed wills, documents which do not have a form customarily expected of a will have been accepted as meeting this requirement. Informal documents which have been validated include documents which the deceased has prepared, such as a suicide note.4 They also include documents which the deceased has not prepared, such as a solicitor’s file note of instructions.5 The essential inquiry, under s 14(1)(a), is whether the document does any or all of the things described in the definition of the word “will” in s 8 of the Act. The document sought to be declared valid here meets that requirement, in that it was in a form suitable for signature.
[20]In Re Estate of Feron Whata J held:6
[11] In Re Estate of Murray7 MacKenzie J helpfully essays a number of authorities dealing with section 14. Those authorities illustrate that a robust approach to the application of section 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person. Section 14 (2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not form. Furthermore, in reaching a conclusion I am also
3 Re Estate of Campbell [2014] 3 NZLR 706.
4 Re MacNeil (2009) 10 NZCPR 770 (HC).
5 Re Taigel [2014] NZHC 844.
6 Re Estate of Feron [2012] 2 NZLR 551.
7 Re Murray (deceased) HC Masterton CIV 2011-435-000178, 20 December 2011
afforded a broad power to consider evidence on the deceased’s testamentary intentions and of statements made by the deceased person.
[21] I apply that approach in the present case. The relevant document here is a document prepared by an Estate Manager and a Solicitor, signed by both of them, recording the instructions the deceased gave for the preparation of a will.
[22] I am satisfied the relevant document here is a document that appears to be a will in the sense that it records what the deceased intended to happen to his estate on his death. It plainly does not comply with s 11, and came into existence in New Zealand. The key question is whether it properly records what the deceased intended. I accept Mr Sparrow’s submission that whilst the instructions took Ms Managh by surprise, that Mr Bowman had clearly been thinking about what he wanted to do with his property after being advised that he should prepare a will, and he duly gave his reasonably carefully thought out instructions for the very purpose of them being recorded in a formal will. The record of those instructions accordingly appears to meet the requirements of s 14.
[23] The content of what was outlined by Mr Bowman demonstrates the point. The relevant parts of the file note state:
Broadly, the instructions were as follows :
1.Executor
Andrew instructed us that he wished to appoint his uncle Roku Adrian Mihinui as sole executor.
We recommended to Andrew that he appoint a second executor. He laughed and said his uncle was the best in the family with finances and he wanted to appoint him only.
2.Bonus Bonds
Andrew instructed us that his $150,000 in bonus bonds was to go to his five cousins Rawiri, Waretini, Matetu, Aneta and Niki. Each cousin was to receive $30,000 each except for Niki who was to receive
$10,000 due to her already having received $20,000.
Andrew asked Mahara to write down the names of the cousins and his executor Roku . Mahara did so (attached) they were not 100% sure that the names were correct so Mahara was going to check and email us the full names and details later.
3.House
Andrew instructed us that his main place of residence, 50 Tutauanui Crescent, was to go to his cousin Rawiri Clark Johnstone. He expressed the wish that Rawiri rent out sections of the house as a means of income for himself.
4.Cars
Andrew instructed us that if his two cars were sold that the proceeds of these were to go towards maintenance and costs of the house.
5.Residue to go to Trust for the benefit of his whanau
Andrew instructed us that the residue of his estate was to be used for the benefit of his whānau including his first cousins, aunties and uncles. Andrew said he thinks they might have a family Trust named the “DH Mihinui Trust” but he is unsure if the Trust is formally recorded, who the trustees are or even who to ask to check if there was a trust (he was not aware of a lawyer who might hold it). Maraha, likewise, was unsure if it the trust is formally recorded
[24] There are some questions arising from the document. The full names of each of the cousins mentioned in cl 2 have not been recorded, but it is clear who each of them are. The document mentioned in cl 5 as the “D H Mihinui Trust” is actually called the “D H Mihinui Whānau Trust”. But there is no uncertainty about what Mr Bowman was contemplating in either respect. In any event the fact there are ambiguities does not mean that a document does not comply with the requirements of s 14.
[25]There are $150,000 of bonus bonds provided for in this document.8 After the
$20,000 reduction for Nikora Mihinui there is $20,000 left over that is not subject to a specific bequest. But again there is no ambiguity as a consequence. The additional
$20,000 falls into the residue of the estate.
[26] There is a final peculiarity. The cars mentioned in cl 4 have some value. Mr Sparrow provided a document to suggest that there is a Mercedes Benz which has an insurance value of $119,200 as well as three other less valuable vehicles. It would appear that the value that might be derived from those vehicles is only to be used for the purposes of upkeeping the house referred to in cl 3 if they are sold. If the proposed
8 The value of the bonds as indicated to me is actually $150,062, with that value realised when the scheme is wound-up on 31 October 2021.
executor decides not to sell the vehicles they become assets forming part of the residue of the estate to be transferred to the trustees of the D H Mihinui Whānau Trust. But any peculiarities about what a deceased intended in this respect does not affect the application of s 14 which is based primarily on whether the document records the deceased’s intentions in relation to his estate.
[27] For the above reasons I accept the requirements of s 14 appear to be met in relation to this document. But Ms Bowman has filed a formal notice of opposition, and an affidavit in support of her opposition, and it is appropriate to consider what she has raised.
[28] Having done so, I conclude that none of the pleaded grounds of opposition seem to me to go to the grounds under s 14 for making the orders sought. There is a suggestion by Ms Bowman she has been unfairly treated, and that the deceased may have been improperly pressured to benefit those who will benefit under the document at her expense. Subject to the point I make below about the Trust it is true that she will be deprived of what she would otherwise receive under the rules of intestacy. But I do not see grounds for suggesting that the deceased has been improperly pressured. I accept Ms Managh’s evidence that he was clear and unambiguous in outlining his intentions, and that she saw no evidence to suggest he was being pressured. Neither do I see any basis to a suggestion that Holland Beckett had conflict of interest as Ms Bowman suggests.
[29] There is a final aspect of the matter that is appropriate to record. The entity which is the residual beneficiary of Mr Bowman’s estate is the D H Mihinui Whānau Trust (the Trust). Although I did not receive a copy of the Trust Deed, Mr Sparrow explained that it was a whānau trust established under s 214 of the Te Ture Whenua Maori Act 1993. I was provided a copy of the order constituting the Trust. I am advised there are three surviving trustees, Mr Roku Mihinui, Ms Ngaroimata Mihinui and Ms Watu Mihinui. They are Ms Bowman’s uncle and aunts. Mr Sparrow provided me a document which summarised the objects of the Trust, the powers of the trustees, and also the relevant provisions from s 214 in relation to the legitimate use of trust funds. Under s 214(3) of the Te Ture Whenua Maori Act the assets of the Trust are held “… for the purpose of promoting the health, social, cultural and economic
welfare, education and vocational training, and general advancement of life of the descendants of any tipuna (whether living or dead) named in the order”. The persons named in the order include Ms Bowman’s mother. Accordingly Ms Bowman appears to be one of those who may benefit from the Trust.
[30] The upshot of this is that Ms Bowman appears to be entitled to be considered as a beneficiary under the D H Mihinui Whānau Trust. She can ask the trustees to consider exercising their powers to benefit her provided it is consistent with the object and purposes of the Trust. I advised Mr Sparrow that the trustees should now formally communicate with Ms Bowman about her status as a beneficiary, and what her entitlements might be.
[31] All of this came as some surprise to Ms Bowman. Mr Sparrow explained that she may not have been previously aware that she was a beneficiary of the Trust as its role has been primarily to hold Māori land. The position may now be different should this application be granted. Mr Sparrow advised that it was estimated that something in the order of $450,000 would be received by this Trust as part of the residue of the estate. In addition there may be an addition benefit in the form of the vehicles if they are not sold.
[32] But in any event I am satisfied that none of the grounds of the opposition set out by Ms Bowman mean that the order should not be made.
Conclusion
[33] I accordingly grant the application and declare that the parts of the document from the file note dated 30 July 2020 that I have quoted above are to be treated as Mr Bowman’s will in accordance with s 14 of the Act.
[34] The application was advanced on the basis that other documents might need to be incorporated in the order to make up the relevant documents that comprise the will. I do not apprehend that that is necessary or appropriate in the present case. The document in question is a typed-up note prepared on the basis of reasonably clear instructions given by the deceased to representatives of a firm of solicitors. That document alone should be regarded as his will.
[35]For those reasons the application is granted.
Cooke J
Solicitors:
Holland Beckett Law, Tauranga for the Applicant
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