Nelson v Codilla
[2021] NZHC 1958
•30 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2821 CIV-2019-404-2822 CIV-2019-404-1516 CIV-2020-404-2151
[2021] NZHC 1958
IN THE MATTER of the Estate of Tihomir Posa (Deceased) BETWEEN
LALE AVATAEO NELSON
Plaintiff
AND
ADRIAN CAMPANA CODILLA
First Defendant
ORTENCIA LAURENTE TENCHAVEZ
Second Defendant
Hearing: 3-6, 12 and 14 May 2021 Appearances:
R P McCutcheon for the Plaintiff R J Connell for the First Defendant
P J Clark and N P Tetzlaff for the Second Defendant
Judgment:
30 July 2021
JUDGMENT OF GORDON J
This judgment was delivered by me
on 30 July 2021 at 2.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Reuben & McGeachie Law, Henderson
Connell & Connell, Auckland Smith and Partners, Henderson
Counsel: P McCutcheon, Auckland
NELSON v CODILLA [2021] NZHC 1958 [30 July 2021]
TABLE OF CONTENTS
Background [6]
Claim under the Property (Relationships) Act 1976 (first cause of action) [78]
Legal Principles [83]
Credibility issues [90]
The duration of the relationship [107]
The nature and extent of common residence [108]
Whether or not a sexual relationship existed [109]
Degree of financial dependence or inter-dependence and any financial
support [111]
Ownership, use and acquisition of property [114]
Degree of mutual commitment to a shared life [115]
Care and support of children [116]
Performance of household duties [117]
Reputation and public aspects of the relationship [118]
Decision [124]
Claim under s 13 of the Property (Relationships) Act (second cause
of action) [131]
Testamentary promises claim (third cause of action) [133]
Legal principles [133]
Discussion [144]
Testamentary capacity and undue influence - standing [156]
Discussion [160]
Testamentary capacity (fourth cause of action) [170]
Legal principles [170]
Discussion [174]
Undue influence (fifth cause of action) [206]
Legal principles [209]
Discussion [211]
Did Mr Posa revoke the 2016 will? [220]
Result [231]
Orders [232]
Costs [233]
[1] Tihomir (Tim) Posa died on 2 October 2018 at the age of 86 years. In his last will made on 12 May 2016 (2016 will), Mr Posa left his estate to his caregiver, the second defendant, Ortencia (Ninnen) Tenchavez. The estate now comprises simply a residential property at 188 Fred Taylor Drive, Whenuapai (the house), which was Mr Posa’s home. An amount of cash that initially formed part of the estate has been used up in legal fees in this ensuing litigation.
[2] The plaintiff, Lale Nelson, claims she was Mr Posa’s de facto partner for a period of around 45 years since the early 1970s up until Mr Posa’s death. Mrs Nelson brings a claim under the Property (Relationships) Act 1976 (PRA) seeking an equal division of what she says is relationship property (effectively now just the house). As an alternative claim under the PRA, Mrs Nelson seeks an unequal sharing in the division of the alleged relationship property greater than 50 per cent.
[3]There are three further causes of action in the amended statement of claim:
(a)Under the Law Reform (Testamentary Promises) Act 1949 (Testamentary Promises Act), Mrs Nelson says that Mr Posa made many express and implied promises that he would leave her “everything” in his will. She says from the very early days of their relationship she rendered services or performed work for Mr Posa until the date of his death. She seeks an order vesting in her the land at 188 Fred Taylor Drive and the house or alternatively payment that is reasonable and just in all the circumstances for her services;
(b)Mrs Nelson claims that Mr Posa lacked testamentary capacity at the time he made the 2016 will. She says therefore, that will is invalid, probate should be recalled and an intestacy arises, subject to her other claims. She says that as Mr Posa’s de facto partner, she is eligible to take all of the estate under s 77 of the Administration Act 1969; and
(c)Mrs Nelson claims that the last will is invalid for another reason, that is because of undue influence from the first defendant, Adrian Codilla, and Ms Tenchavez. Mrs Nelson seeks a recall of probate and a finding
that an intestacy arises subject to her other claims. Under this cause of action Mrs Nelson also says that as Mr Posa’s de facto partner she is eligible to take all of his estate under s 77 of the Administration Act.
[4] Mr Codilla is the executor of the 2016 will. He is a pastor in the Baptist Church which Ms Tenchavez attends.
[5]Mr Codilla and Ms Tenchavez both defend the proceeding.
Background
[6] Mrs Nelson, known as Ava, was born in Samoa in October 1940 and worked for a school there before she moved to Auckland in around 1962. She first met Mr Posa in Auckland around 1970 or in the early 1970s (different dates are given). Mrs Nelson was in her early thirties at the time. She is now aged 80.
[7] Mr Posa was born in Croatia and had emigrated to New Zealand in 1964. He spoke very little English when Mrs Nelson first met him. She says Mr Posa never learned to speak English properly. Other witnesses agree. She says people often had trouble understanding him. Other witnesses also agree with that. Mrs Nelson said Mr Posa never learned to write English properly either. He spent most of his time in a Croatian community in West Auckland. Most of his closest friends had emigrated from Croatia in the 1960s and 1970s.
[8] Mrs Nelson’s only child a son, Rodney, who was a witness, was around three or five years old (different ages are given) at the time she and Mr Posa met. He is now aged 53.
[9] Mrs Nelson says that Mr Posa and she were constantly in each other’s day-to-day lives from the time they met.
[10] In 1981, Mrs Nelson purchased a property at 21 Arlette Place, Massey (Arlette Place). In around 1982, Mr Posa purchased land at 188 Fred Taylor Drive from his employer who operated a light construction and engineering business on the next door
property. Mrs Nelson describes Mr Posa as a self-taught engineer, panel beater and panel painter.
[11] In 1985, Mr Posa went to Croatia for around six months to sort out family property after his parents had died. On his return from Croatia in 1986, Mrs Nelson and Mr Posa began living together at Arlette Place. By that time Rodney was no longer living at home having joined the Navy.
[12] Mrs Nelson said she and Mr Posa would go out to 188 Fred Taylor Drive every weekend and worked on developing the property together. She says she spent countless hours at 188 Fred Taylor Drive helping Mr Posa and generally operating as a labourer’s assistant. Rodney also assisted with wiring, plumbing and other labouring tasks at the property when he had leave from the Navy. Once the house became habitable in around 1986 or 1987, Mrs Nelson and Mr Posa moved in there. She rented out Arlette Place to family members. For over 10 years, Mrs Nelson and Mr Posa lived together in the house. When Rodney came home on leave that was the home he went back to.
[13] However, in February 1998 there was a home invasion at the house by members or associates of the Mongrel Mob. Rodney was not there at the time, but Mrs Nelson and Mr Posa were both severely beaten by the offenders who were looking for cash. There was no dispute in this proceeding that the attack occurred and was savage and unprovoked.
[14] Mrs Nelson says that after the home invasion she and Mr Posa both moved back to Arlette Place to recuperate. She says she was so traumatised by the home invasion she could not bear to stay overnight at the house. She was terrified that the Mongrel Mob would come back and attack them again. She says after a period of recuperation Mr Posa wanted to move back to the house. It was his house; it was right next door to where he worked in paid employment with a friend; his Croatian community lived nearby; and all of his hobbies were in the house. The lounge contained Mr Posa’s electronic stereo and audio equipment, a ceiling-mounted projector and large screen and seating that accommodated a large gathering of people. Next to that was his hobby room full of electronic equipment and tools.
[15] Mrs Nelson said that Mr Posa had begged her to come back and stay at the house overnight. She said she could manage being there during the day, but simply could not manage to stay overnight because of her fear of another home invasion. They had arguments about her not joining him there full time.
[16] However, she says that the relationship continued in just the same way as it had before the home invasion, except that she did not stay at the house overnight. She says she did everything else but that. The defendants contend that even if there was a de facto relationship in earlier days, it ended in 1998 after Mr Posa moved back to the house. Mrs Nelson’s position is that the de facto relationship continued.
[17] Mrs Nelson says she spent most of her free time with Mr Posa at the house. She estimates she would have been there at least three to five times a week between 1998 and when she moved back into the house full time in (she says) late 2016. Other witnesses suggest it was 2017. She says their sexual relationship continued until around 2004 when Mr Posa’s sexual health declined.1
[18] Mrs Nelson says she was most frequently there in the weekends, after work and in the evenings. She continued to cook for Mr Posa, clean for him, did washing, ran errands, and did anything he wanted to make his life better and more comfortable. She says Mr Posa was no good at looking after himself and doing cleaning, cooking and washing. She says the parties at the house with Mr Posa’s Croatian friends continued as before.
[19] She says every time Mr Posa asked her to come to him she went to him. She did everything he asked, but just could not stay overnight. She said they had constant rows about that. Mrs Nelson says that because Mr Posa was busy during the day she started training as an early childhood teacher, having been involved in early childhood education in Samoa before coming to New Zealand. In 2001 she started working at a childcare centre in Mt Albert. She continued working there until 2011 when she says she resigned to spend more time looking at Mr Posa after his stroke (which I will discuss shortly).
1 In an earlier affidavit, Mrs Nelson said she and Mr Posa “always maintained a sexual relationship”. She later amended that statement, saying the sexual relationship continued until around 2004.
[20] Mrs Nelson says that so Mr Posa would not be alone overnight they agreed he would get a flatmate who would also help with the chores that needed to be done for him including cooking and housework on a paid basis. She says in 2004, a Chinese woman, Xiao Wang, with the English name of Linda, responded to a newspaper advertisement and moved in with her young son as Mr Posa’s flatmate and to help Mrs Nelson look after Mr Posa. A tenancy/flat sharing agreement was signed by Mr Posa, Ms Wang and Mrs Nelson in June 2004.
[21] The designation of “flatmate” in relation to Ms Wang is disputed by the defendants. One of Mr Posa’s friends, Geoffrey O’Leary who gave evidence on behalf of Mr Codilla, said he was the one who had put the advertisement in the newspaper in August 2003, which was answered by Ms Wang. Mr O’Leary’s evidence was that Ms Wang moved into Mr Posa’s bed and had an intimate relationship with him. Ms Wang was not called as a witness. I refer to Mr O’Leary’s evidence further at [49] below.
[22] At a later date, on 12 September 2005, Ms Wang and Mr Posa signed a contracting out agreement under the PRA. I will refer to that agreement in the context of my discussion of whether, if there had been a de facto relationship between Mrs Nelson and Mr Posa, it continued after 1998.
[23] Mrs Nelson says that after 2004 when Ms Wang began living at the house, she continued to visit Mr Posa very regularly and continued to look after him. It was just that now Ms Wang was assisting as well. Ms Wang had a second job during the day. Mrs Nelson says she was not aware of any sexual relationship between Ms Wang and Mr Posa. She also notes that the date of the tenancy agreement with Ms Wang was around the time that Mr Posa’s sexual health declined. Mrs Nelson says she and Ms Wang became good friends.
[24] In July 2005, Anthony Vlatkovich, a solicitor and partner in the firm of Vlatkovich & McGowan, received instructions from Mr Posa to prepare two enduring powers of attorney (EPAs), one for personal care and welfare and the other for property. Both named his close friend, George Vezich, as attorney and are dated 22 July 2005.
[25] It appears that Mr Posa, as well as executing the two EPAs on 22 July 2005, also made a will on that day. Mr Vlatkovich says that during September 2007 he received a request from Mr Posa to uplift a will dated 22 July 2005 (the 2005 will) that Mr Vlatkovich’s firm was apparently holding in its deeds storage. On 10 December 2007, Mr Posa signed a receipt acknowledging he had uplifted the 2005 will. Mr Vlatkovich says they have no records of having prepared the will, nor do they have a copy of it in their computer system. A copy was not produced at the hearing.
[26] Then in September 2005, Mr Vlatkovich received instructions to prepare a relationship property contracting out agreement for Mr Posa. The agreement, signed and dated 12 September 2005, records that Mr Posa and Linda Wang were entering into a de facto relationship and wished to sign a contracting out agreement.
[27] Ms Wang remained living at the house for around two or three years (the date is not clear) before she and her son moved into their own property in around 2006 or 2007. Later, in 2011, she returned to assist Mr Posa.
[28] In April 2011, Mr Posa had a significant disabling stroke. After his discharge from hospital he used a walker to get around but was not very mobile. He also needed assistance bathing, toileting, and getting in and out of bed.
[29] By all accounts, Mr Posa had a challenging personality. He could be disrespectful in his general attitude towards women, and a number of witnesses from both sides of the case referred to his view that it was “my way or the highway”. After his stroke he became even more temperamental, impatient and was not an easy person to deal with. As I have noted, he had never learned to speak English properly and his stroke affected his ability to open and use his mouth. He became more difficult to understand. At times he declined to take medical advice and prescribed medication, he swore at people and was often abusive to caregivers. He could be challenging to care for and help. He was very easily upset and could become angry, rude and belittling if he felt slighted or did not get what he wanted. He could change moods quickly. Witnesses for both sides gave evidence of receiving phone calls from Mr Posa requesting, or more accurately demanding, their attendance at the house to assist him. As against all of that, Mr Posa was said to have a heart of gold.
[30] When Mr Posa was admitted to hospital after his stroke, Mrs Nelson and Rodney attended family conferences at the hospital. Mrs Nelson says she resigned from her job at the pre-school to spend more time helping Mr Posa after his stroke. She says she went to the house every day to see Mr Posa and to assist with bathing, showering and helping him move around the place. She says Rodney took three months’ leave from work to help care for Mr Posa and Ms Wang returned to assist on a paid basis.
[31] Mrs Nelson’s evidence was that when Ms Wang returned to assist Mr Posa after his stroke, it was for two or three hours a day for five days a week and she was paid by an external care provider for her work. Mrs Nelson says she was the one who cooked for Mr Posa and fed him breakfast in the morning and dinner at night. She says she was the one who cleaned, except for light cleaning that Ms Wang assisted with. Mrs Nelson says she helped with the service providers assisting Mr Posa with his healthcare needs and appointments, such as with doctors and dentists. She helped him to care for himself, toileted him and went shopping for him, getting whatever he needed when he asked for (demanded) it. She said she supported Mr Posa physically and psychologically in whatever way he wanted, but she went home to her place in the evenings because of her fear of staying in the house overnight.
[32] On 30 April 2012, Mr Posa signed a will prepared by Mr Vlatkovich on Mr Posa’s instructions (2012 will). There is no issue over Mr Posa’s testamentary capacity at that time. A copy of the 2012 will was produced in evidence. Mr Vlatkovich and George Vezich were the executors. The beneficiaries were Mr Vezich (all Mr Posa’s money in his bank accounts) and Ms Wang (the house). The signing of the 2012 will revoked the 2005 will.2
[33] Mr Vlatkovich’s undated note of Mr Posa’s instructions in relation to the 2012 will includes the following:
She good to him – stays overnight. Helps in mornings.
There was no dispute that this note was a reference to Ms Wang.
2 Wills Act 2007, s 16(a).
[34] In a separate document signed by Mr Posa on 30 April 2012, he stated that he wished any car he owned at the date of his death to go to Ms Wang. Mr Vlatkovich says at no time during Mr Posa’s instructions to him, or in his discussions with him, did Mr Posa mention Mrs Nelson.
[35] I move forward briefly at this point to mention further events in relation to the 2012 will before returning to the narrative. When Mr Posa made the 2016 will, Mr Kemp, the solicitor who took Mr Posa’s instructions, recorded in his notes that Mr Posa told him he had destroyed his existing will. It seems this must have been the 2012 will (either the original or a copy) based on the evidence referred to below. Mr Kemp’s notes do not record if Mr Posa said when he did this.
[36] Mr Vezich, who described himself as one of Mr Posa’s best friends, says he was probably the friend Mr Posa talked to most about his money and his will. He said at the time of the 2012 will Mr Posa’s assets comprised about $100,000 in a bank account and the property at 188 Fred Taylor Drive. He was aware that in the 2012 will Mr Posa left him the money in the bank accounts and Ms Wang the house. He said that Mr Posa said to him on a number of occasions that he no longer wanted Ms Wang to have the house and he ripped up the will in front of Mr Vezich. He does not say when this was but the evidence is consistent with what Mr Posa told Mr Kemp.
[37] Mr Vezich said that Mr Posa had written to Vlatkovich & McGowan asking for the original 2012 will to be sent to him. This is consistent with the evidence of Mr Vlatkovich who produced a copy letter from his firm dated 15 October 2013 sending the (original) 2012 will to Mr Posa by post to his home address, as requested by Mr Posa. Mr Vezich does not know whether the will Mr Posa tore up in front of him was the original 2012 will or a copy. In his oral evidence, Mr Vezich said he did not actually see the document Mr Posa was ripping up.
[38] Although Mr Vezich did not see what the document was, I accept that the combination of the evidence of Mr Kemp, Mr Vlatkovich and Mr Vezich is sufficient to establish that Mr Posa revoked the 2012 will.3
3 Either by destroying the original 2012 will (Wills Act 2007, s 16(e)) or by destroying a copy (Wills Act 2007, s 16(g)).
[39] I return to the narrative. Lorelie Trinidad gave evidence that she met Mr Posa in December 2012. At that time she was aged 52 years and had come from the Philippines without any other members of her family. She happened to stop at a roadside stall where Mr Vezich’s son was selling produce. At that time, Ms Trinidad was looking for a job and asked Mr Vezich’s son whether he could hire her to look after the stall. Mr Vezich’s son said he knew someone (Mr Posa) who needed help. A week or so later, Mrs Nelson picked up Ms Trinidad and took her to Mr Posa’s house. Ms Trinidad was engaged to assist Mr Posa.
[40] I mention the sleeping arrangements for Ms Trinidad as they bear some resemblance to the arrangements Ms Tenchavez describes after she began living at the house and which I will refer to in due course. Ms Trinidad stayed with Mr Posa during the Christmas holidays at the end of 2012 and after that she stayed four nights a week. She initially slept in the spare room but she said Mr Posa banged on the wall calling her during the night, so she first slept “lying on the foot of his bed, but sitting in the chair”. She says Mr Posa told her that he wanted to have someone to look after him while he was in his present situation and that he would look after her financially. She says at no time did she have a sexual relationship with Mr Posa.
[41] She said that because Mr Posa kept banging on the wall and disturbing her sleep it was easier to sleep in his bed, even though there was no sexual relationship. She said she commenced sleeping in his bed probably about a month after she met him. The arrangement carried on until February 2014. She then left to take up a job in Christchurch. Mrs Nelson thinks this was in 2015. Ms Trinidad said Mr Posa kept telephoning her even when she was in Christchurch and she would visit him when she came back to Auckland every two to three months. She did not see Mrs Nelson on those visits, but Ms Wang was there.
[42] While Ms Trinidad was living at Mr Posa’s she attended the Baptist Church which was where she met Mr Codilla. Mr Codilla would collect Ms Trinidad from Mr Posa’s house to take her to the church and return her in the evening. This is how Mr Codilla met Mr Posa.
[43] In February 2013, during the period Ms Trinidad was engaged to assist him, Mr Posa consulted an immigration consultant about bringing a woman by the name of Chiryl Volante from the Philippines to New Zealand. The notes on the consultant’s file state “partner and Phil.38YO … have been in touch for two years over the phone and … and letters. Never lived together but willing to marry her. … Partner (Tihomir) need to go to Phil’s to live together …”. Mrs Nelson says that at the time she was helping Mr Posa bathe and get in and out of bed after his stroke and he could not walk unaided. She says there was no way that Mr Posa could have travelled to the Philippines in 2013 without significant assistance. She describes the whole scheme as “completely fanciful”. Nothing eventuated from Mr Posa’s consultation with the immigration consultant in relation to Ms Volante.
[44] This was not the first occasion on which Mr Posa had communicated with a woman in the Philippines. There was evidence from Roma De Vega, who had been a bank teller at the Westgate branch of Westpac Bank. She recalled Mr Posa coming in to the bank to make telegraphic transfers of money to the Philippines. She said he told her he was looking for a caretaker or someone he could marry. She said she asked him whether he knew the people he was sending money to. He provided female names but said he had not met them. She said the transactions occurred approximately once a month over a period of around two or three years. She said this would have started around 2005 (when she commenced work at the Westgate branch) and continued until around 2007 or 2008 (when she no longer worked as a teller at that branch).
[45] Mr Posa did not tell Mrs Nelson about the money he was sending to the Philippines. However, she acknowledged that he put advertisements in the newspaper for somebody to look after him at night but if he wanted something during the day then she said she would attend to him.
[46] In hospital notes dated 5 April 2011 during Mr Posa’s hospital admission after his stroke, it is recorded that Ms Wang would look after him during the day and overnight and would do this “until his girlfriend arrives from the Philippines”. It is not clear who this person was. But this is consistent with the evidence of Mr Posa’s friend, Robert Craig, who said that Mr Posa was always trying to get someone from overseas to live with him. It appears this continued after his stroke. Mr Posa’s friend,
Mirko Ujdur, said that over the years Mr Posa had a number of people move in with him to assist him as home help. Mr Ujdur’s impression was this was in order that the State could see that he did not need to be put into a rest home. To Mr Ujdur’s knowledge, Mr Posa was not romantically involved with any of the women who assisted him in the home, including Ms Wang.
[47] Choonhee Bae, known as Jenny, was one of those women who assisted Mr Posa at home. Ms Bae’s evidence was that when the caregiver she knew as Linda (it seems this must have been Ms Wang) went to China, which was, to the best of her memory, around 2015, she began working for Mr Posa as a home helper. She said that Linda was still working for Mr Posa. She described Linda’s role as a home helper at this time, but she had a house of her own and did not live there. Ms Bae said she worked for Mr Posa about three hours a day while Linda was in China.
[48] She said Mr Posa rapidly became too personal, stroking her hand and asking her if she had a boyfriend or husband. Ms Bae said she told him she had a husband and two daughters. She said Mr Posa asked her if he could be her “boyfriend”. She said he told her he would give her his house if she became his girlfriend. Ms Bae said she declined, telling Mr Posa she was there to work only. He said to her not to worry about cleaning and that Mrs Nelson would do it. Ms Bae said Mr Posa told her that Linda was his caregiver. He said he had given her the house but after she moved out he “cancelled giving her the house”. Ms Bae said Mr Posa told her that Ava was a very good person who looked after him. He said even after Ava moved out, she was always there for him. Mr Posa also told Ms Bae that a girl from the Philippines was coming and that Mr Posa had said his friend George was arranging this. Ms Bae said she left when Linda came back from China after about a month away.
[49] Mr O’Leary also commented on women who had stayed in Mr Posa’s house. He said he had been involved in making a number of those arrangements, including the arrangement involving Ms Wang (referred to in [20] above) because Mr Posa liked someone to be with him. Mr O’Leary said he was aware of Ms Trinidad also living in the house, but he did not know if they had a sexual relationship. He said after Ms Wang left there was a girl called Helen from Malaysia. She came and went daily, but did not live at the house. Mr O’Leary says there was also a Chinese woman who
was married, who used to come and go during the day. This arrangement was for approximately six or seven months. Mr O’Leary does not state when that was.
[50] I turn now to the arrival of Ms Tenchavez in New Zealand in 2015. Mr Posa and Ms Tenchavez had communicated with each other since around February or March 2014 prior to her arrival in New Zealand. They were introduced to each other (with Ms Tenchavez in the Philippines and Mr Posa in New Zealand) by Mr Codilla, who had been Mr Tenchavez’s Sunday school teacher in the Philippines. Ms Tenchavez says Mr Posa telephoned her about three or four times a week. The conversations were initially short, just two to three minutes. Initially, they had difficulty understanding each other because of their accents.
[51] Ms Tenchavez said they got along very well over the phone and Mr Posa encouraged her to come to New Zealand. She said they spoke over the phone during the year about her visa and coming to New Zealand. She said Mr Posa told her he wanted to have a companion living with him and was sick of living on his own. She says she did not commit over the phone to staying with him.
[52] Mr Posa paid for her airfare which she says was given to her through Mr Codilla. Ms Tenchavez says the purpose of her coming to New Zealand at the end of 2015 was to attend a church anniversary, to visit Mr Codilla and his family and to meet Mr Posa.
[53] In November 2015, the day after her arrival in New Zealand, Mr Codilla took Ms Tenchavez to meet Mr Posa at the house. Mr Posa asked her to stay with him and she agreed. From that day onwards she lived there. She said Mr Posa said that she would look after him and he would look after her. But she says there was no long- term plan as the length of her stay in New Zealand was uncertain.
[54] Ms Tenchavez said once she got a job as a rest home worker she worked some night shifts from late June 2018. Otherwise she and Mr Posa shared his bedroom for convenience as it was easier for her to assist Mr Posa during the night. This arrangement continued from the early days until Mr Posa’s death. She said they did not have a sexual relationship. He asked her but she said “no”.
[55] Ms Tenchavez said that in early or mid-2016, Mr Posa asked her to marry him. She said Mr Posa telephoned Mr Codilla and requested that he drive the two of them to a Croatian immigration consultant. Mr Posa and Ms Tenchavez met the consultant together. She said Mr Posa asked how Ms Tenchavez could get an extended visa and they were told the best way to get that was to get a student visa. She said Mr Posa suggested to the consultant that he marry Ms Tenchavez but the consultant indicated that because of the age gap it would not be accepted by the Immigration Service. Ms Tenchavez said they were told that the only way to extend her stay in New Zealand would be to have a work visa and a willing employer, or a student visa. She said they took that advice. Her student visa was fully approved on 2 September 2016.
[56] Ms Tenchavez enrolled at the Kauri Academy where she studied for one and a half years completing a Certificate of Diversional Therapy and Community Health. Mr Posa paid the $11,500 tuition fee and for Ms Tenchavez’s bus fare every week. Ms Tenchavez said from August 2016 until February 2018 she attended classes on Monday and Tuesday from 8 am to 4 pm and on a Wednesday from 8 am to 12 pm. She said Ms Wang would come, in the morning, to look after Mr Posa for three hours.
[57] Ms Tenchavez said Mr Posa also assisted by sending $100 to Ms Tenchavez’s mother “every month and he did that but not every month” between 21 December 2016 and 7 February 2018. In about April 2017 Ms Tenchavez got a driver’s licence and Mr Posa purchased a car he allowed her to use with his supervision.
[58] Ms Tenchavez says that on some occasions Mr Posa promised to give her his house and all that he had. She says one of those occasions was in October 2017. She says she did not take what he was saying seriously because she was not expecting anything from him. She was looking after him because he had no one else to look after him.
[59] There is a dispute between Mrs Nelson and Ms Tenchavez as to their respective contributions to Mr Posa’s care. In short, Ms Tenchavez says she did everything she could to look after Mr Posa and to be his companion. She says Mrs Nelson visited Mr Posa approximately twice a month and did not have any part in caring for him or helping him with his day-to-day living.
[60] By contrast, Mrs Nelson’s case is that she was there “24/7” and cared for Mr Posa with Ms Tenchavez assisting. I consider both Mrs Nelson and Ms Tenchavez overstated their roles in Mr Posa’s care and understated the role of the other. But I accept that each of them was involved in his care.
[61] Turning to Mr Codilla’s involvement in Mr Posa’s life, Ms Tenchavez says in 2016 Mr Codilla visited her and Mr Posa around three to five times a month, sometimes more. The following year, Mr Codilla visited about twice a month, although this decreased over time. She said he visited less frequently after Mr Posa purchased a car for Ms Tenchavez to drive in mid-2017.
[62] She said that mostly Mr Posa telephoned Mr Codilla and he visited when Mr Posa wanted help with something. She said this type of relationship between Mr Posa and Mr Codilla was how Mr Posa treated a lot of people. This description is consistent with the evidence of other witnesses on each side of the case.
[63] Between 1 and 4 May 2016, Mr Posa had two suspected transient ischaemic episodes with loss of vision “for sec and feeling weakness right side (previous stroke same side)” as recorded in the notes of Mr Posa’s general practitioner, Dr Wasfy Shahin. Dr Shahin gave evidence that the episodes involved Mr Posa’s motor function, and were not events involving cognitive functions.
[64] I turn to the events around the signing of the 2016 will. Ms Tenchavez says around the end of April 2016 Mr Posa told her he wanted to go to a law firm to see a lawyer, but did not tell her why. At that time she did not drive and Mr Posa sought the assistance of Mr Codilla who drove Mr Posa and Ms Tenchavez to the law firm. She says she does not know who chose the firm.
[65] Mr Codilla’s evidence was that one day during early 2016, Mr Posa asked him to find a lawyer. He said Mr Posa said he wanted to “sign for Ortencia”. Mr Codilla said he looked in the Yellow Pages online for the closest available lawyers. He said he rang Morris & Quinn but they did not have a lawyer available. He then rang Mr Kemp’s office and made an appointment. He said he took Mr Posa in his car with Ms Tenchavez. He said that initially the three of them were in Mr Kemp’s office and
then Mr Kemp saw Mr Posa on his own for about an hour. Mr Posa then came out with Mr Kemp who advised that Mr Posa needed to have a certificate from a doctor.
[66] Mr Codilla booked an appointment with Mr Posa’s GP, Dr Shahin, for 12 May 2016. On that day, Dr Shahin saw Mr Posa and provided him with a certificate. The three of them (Mr Posa, Ms Tenchavez and Mr Codilla) then went back to Mr Kemp’s office and gave the certificate to him. I will discuss this evidence in more detail when considering the issue of testamentary capacity. I simply note at this point that Mr Codilla’s evidence is consistent with that of Mr Kemp and Dr Shahin in relation to events that each is able to comment on in common with the others.
[67] Mr Codilla said some days later Mr Posa showed Mr Codilla a large envelope containing papers. Mr Posa showed him a document which Mr Codilla said he did not attempt to read, he only looked at it. He said Mr Posa said he did not want Ms Tenchavez to sell the house. Mr Codilla said Mr Posa stated, “She will live here. It is hers”.
[68] Mr Vezich’s evidence was that Mr Posa spoke to him about a week after he had signed the 2016 will, worried about what he had done. Mr Vezich said Mr Posa told him on several occasions after he had signed the 2016 will that he did not want that will anymore and he did not like the “Filipino people” in his life. Mr Vezich said he phoned Mr Kemp at that time (Mr Kemp was not then his lawyer but he is now). Mr Vezich said he told Mr Kemp he was worried that Mr Posa was being exploited by “these Filipino people”. Mr Vezich said towards the end of his life Mr Posa regretted signing the 2016 will. He wanted that will “cancelled” and he wanted a new will. He said Mr Posa asked him to drive him out to Mr Kemp to make a new will but Mr Vezich said he was so busy he never did that.
[69] I return to Mrs Nelson. In December 2016 her trust, the LRN Trust, settled the purchase of a property at 131 Fred Taylor Drive. Mrs Nelson’s position is that in conjunction with that forthcoming purchase she moved into the house (at 188 Fred Taylor Drive) in August 2016. The defendants say it was early 2017. There is also a dispute as to why Mrs Nelson began living in the house. Mrs Nelson says Ms Tenchavez was away from the house a lot and not providing sufficient care for
Mr Posa and she was doing most of the caring for him. She says this is the reason she moved into the house full time, including overnight, to look after Mr Posa.
[70] The defendants say that the reason Mrs Nelson began staying overnight at the house was because the property at 131 Fred Taylor Drive did not have sufficient bedrooms to accommodate her. Rodney and Mrs Nelson’s sister Rosa occupied the available bedrooms.
[71] After she began staying overnight at the house (whether late 2016 or early 2017), Mrs Nelson slept in the spare room. That much is agreed.
[72] Mrs Nelson said that in 2017 Mr Posa asked her to take him to Kemp Lawyers. She said that when Mr Posa went into the lawyer’s office she sat outside. Mr Kemp’s evidence was that although he had no formal notes he recalled that Mr Posa came to see him again in 2017 without an appointment. Mr Kemp’s evidence was that it was something to do with the will but he was not clear about what it was. Mr Kemp’s recollection was that he gave Mr Posa a copy of his 2016 will at that meeting and he heard no further from him.
[73] Mr Kemp said he saw a lady with Mr Posa. He introduced himself and he now believes the lady was Mrs Nelson. There is disagreement between Mrs Nelson and Mr Kemp about what was discussed. Mrs Nelson’s evidence was that Mr Kemp asked her about her relationship with Mr Posa. She said she told him she was Mr Posa’s de facto. Mr Kemp asked for how long and she told him since 1972. Mr Kemp says that discussion did not occur.
[74] Mrs Nelson’s evidence was that later Mr Posa cut up a copy of the 2016 will. She said he asked her to burn it. She said she did burn most of it but she had a few cut up pieces left. Those pieces were exhibited to one of her affidavits. The pieces exhibited contain sufficient content to allow the inference to be drawn that they were part of the 2016 will.
[75] Mrs Nelson said in the last six months of his life, Mr Posa was always talking about his will. She said he asked Mr Vezich on a number of occasions to take him to
the lawyers for a new will. She said she told Mr Vezich not to worry about taking Mr Posa to the lawyers because his will had already been sorted out. She said she had not seen what was in the envelope he brought back from the lawyers in 2017, but she said she thought, on the basis of that visit to the lawyers, that Mr Posa had changed his will to give everything to her.
[76] Mr Posa was hospitalised in November 2017. He returned home in the first week of January 2018. His health declined during 2018. For the last six months of Mr Posa’s life, Hospice nurses visited him. Professional home carers also assisted with his care. Mrs Nelson and Ms Tenchavez both continued to assist. During the last six months of his life Mr Posa was not able to sit up.
[77] Mrs Nelson’s evidence was that Mr Posa died on 2 October 2018. At that time Mr Codilla was in Australia. Mrs Nelson arranged and paid for his funeral, and paid for a suit for Mr Posa, his casket and the function afterwards out of her savings. She also paid for the burial plot.
Claim under the Property (Relationships) Act 1976 (first cause of action)
[78] It is convenient to first consider Mrs Nelson’s claim under the PRA. The Court is required to determine whether Mrs Nelson and Mr Posa were in a “de facto relationship” as at the date of Mr Posa’s death on 2 October 2018. A decision on this issue may have a bearing on the consequences of my decision on the other claims.
[79] Mrs Nelson’s position is that she was in a continuous de facto relationship with Mr Posa from the early 1970s until the date of his death. She says although there were different living arrangements throughout that period, that did not change the fact that the de facto relationship nevertheless continued. Mr McCutcheon, for Mrs Nelson, submits that Mrs Nelson has established on the balance of probabilities she and Mr Posa lived together as a de facto couple from the time they moved into Arlett Place together until Mr Posa’s death on 2 October 2018.
[80] Mr McCutcheon submits they were helping each other and experiencing life’s events together. Although the two did not necessarily live under the same roof all of the time, and Mr Posa behaved badly by not providing for Mrs Nelson in his will, and
in relation to his conduct with other women, he submits that there was nevertheless a de facto relationship in the sense that they were bound together on life’s journey. He submits it is evident that Mrs Nelson cared for Mr Posa from the outset and during the times he had other carers. He submits the common refrain of Mrs Nelson’s witnesses was that it was Mrs Nelson who was fundamentally looking after Mr Posa right throughout from the early 1970s until his death.
[81] Mr Codilla says, in short, whatever the relationship was before 1998, it changed its character significantly thereafter.
[82] Ms Tenchavez denies that Mrs Nelson and Mr Posa were in a de facto relationship or had any close or intimate relationship beyond friendship, from at least November 2015 when Ms Tenchavez began living at the house.
Legal Principles
[83] A de facto relationship is a relationship between two persons who are both aged 18 years or older; who live together as a couple and who are not married or are in a civil union with one another.4 In determining whether two persons live together as a couple, all the circumstances of the relationship are to be taken into account, including the following matters:5
(a)the duration of the relationship;
(b)the nature and extent of common residence;
(c)whether or not a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(e)the ownership, use, and acquisition of property;
(f)the degree of mutual commitment to a shared life;
(g)the care and support of children;
(h)the performance of household duties; and
(i)the reputation and public aspects of the relationship.
4 Property (Relationships) Act 1976, s 2D.
5 Section 2D(2).
[84] In determining whether two persons live together as a couple, no finding in respect of the above matters or in respect of any combination of them is to be regarded as necessary, and the Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.6
[85] For the purposes of the PRA, a de facto relationship ends if the de facto partners cease to live together as a couple. Unlike a marriage and civil union, there is no public record of de facto relationships. It is therefore a matter of evidence and degree whether a couple are in a de facto relationship. The following cases provide some assistance.
[86] Despite the unusual facts in Z v F, the High Court upheld the findings of the Family Court that the parties lived together as a couple.7 Although the parties had signed a document described as a “divorce agreement” in China, on their return to New Zealand they continued to live together with their son for more than three years. Although they had no expressed commitment to a shared life together in the future, they continued to conduct their relationship in a shared way. The Family Court Judge’s finding, upheld in the High Court, was that it was very difficult to see much difference between the way they conducted themselves from 2004 onwards (when they returned to New Zealand) and the way they had conducted themselves before then.
[87] In B v F, Ms B and Mr F had a relationship between 1994 and 2004 but never “lived together” in the traditional sense.8 Although Mr F often spent nights at Ms B’s property, and cooked and socialised there, he continued to keep his clothing and personal possessions at his parents’ home, where he would also regularly sleep and bathe and where his mother did his washing and ironing. Ms B and Mr F did not have a joint account nor were their financial affairs entwined. Nonetheless, Mr F provided very significant financial support to Ms B and her two children. To most of their acquaintances, they presented themselves as a couple. In holding that the Family Court had erred in holding that in order to reside in a place, a person must spend time exclusively at that place, Heath J observed:
6 Section 2D(3)(a) and 2D(3)(b).
7 Z v F HC Auckland CIV-2010-404-1424, 10 December 2010 at [62].
8 B v F [2010] NZFLR 67.
[54] … disputes of this type which fall to be resolved by the Court will often arise out of the unconventional living arrangements of particular individuals. To some extent, there will always be the problem of trying to fit a square peg (representing the parties’ choices about their own living arrangements) into a round hole (representing the concept of a de facto relationship for the purposes of the Act). Nevertheless, even in an unusual relationship, the law requires a Court to evaluate the evidence to determine whether the legal threshold is met.
[88] More recently in Moon v Public Trust, the High Court found that Mr Moon and Ms Doyle were in a de facto relationship.9 Ms Doyle suffered from a chronic medical condition leaving her tired and confined to a wheelchair. Although they did not live together in the same residence and were not financially inter-dependent, they maintained a sexual relationship, and Mr Moon visited most evenings, cooked and cared for Ms Doyle. In the High Court, Powell J held:
[47] … that when viewed objectively and in its totality the substance of [the] relationship can be dismissed as merely a “friendship” or “companionship” but rather in legal terms it was indeed a de facto relationship for the purposes of the [Property (Relationships)] Act.
[89]Finally, in the High Court judgment of Scragg v Scott it was said:10
[64] In determining whether a de facto relationship exists Courts are often required to assess multiple pieces of circumstantial evidence. That is why the indicia set out in s 2D are inclusive but not exhaustive. If sufficient pieces of evidence exist which, when viewed cumulatively, and through the application of common sense and proper reasoning, satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met. Weight to be given to individual pieces of circumstantial evidence may vary. If both parties say they are in a de facto relationship that may well be decisive direct evidence, depending upon the existence of other characteristics. Parties may simply present to the outside world in a particular way. They may share an emotional bond or association over an extended period and act in a way, inconsistent with any view other than that they are in a de facto relationship. It is the cumulative weight of all factors whether specified in the Act or not (because as was made clear by the minority judgment in Ruka (above) “there will be others”), which is decisive. The approach must be broad, with various factors to be weighed up in an evaluative task, similar to those the Courts are frequently called upon to undertake when drawing conclusions from circumstantial evidence.
9 Moon v Public Trust [2018] NZHC 1169 at [47].
10 Scragg v Scott [2006] NZFLR 1076, (2006) 25 FRNZ 942 (HC) at [64].
Credibility issues
[90] Before applying the s 2D factors and assessing their cumulative weight, I make the following observation. Mrs Nelson’s case relies in significant part on the Court accepting her recitation of facts and events. It has to be said that there are question marks over her reliability, and in some instances her credibility. There are the following matters.
[91] In her first affidavit, Mrs Nelson said that her sexual relationship with Mr Posa continued until the end of his life. In a subsequent affidavit she said their relationship continued until Mr Posa could no longer function sexually in around 2004.
[92] Next, Mrs Nelson produced in evidence a note she made in her diary which she initially claimed was made on the day it was dated, namely 1 June 2018. The date was given by reference to both the date itself and by reference to circumstances, namely four months before Mr Posa died. The diary note purports to be a contemporaneous record of a conversation between Mr Posa and Mrs Nelson where: Mr Posa requested that Mrs Nelson write the diary note in case something happened to him; he demanded that Mrs Nelson arrange a lawyer to attend on him at his home; and the purpose of the attendance would be to “sign everything + property to Ava Nelson”. The diary note states “Please this [sic] an agreement”.
[93] In a subsequent affidavit, Mrs Nelson acknowledged that the diary note was not written until after Mr Posa’s death and was written after her lawyer sought information from her. But she does not explain in her subsequent affidavit why the diary note was dated as it was or why her sworn statement confirming that date was made.
[94] Under cross-examination, Mrs Nelson claimed that the diary note accurately recorded a conversation on 1 June 2018. However, the fact is Mrs Nelson did not carry out the instructions purportedly from Mr Posa in the diary note by arranging an attendance by a lawyer for Mr Posa to execute a new will, within the four months between the purported date of the diary note and Mr Posa’s death. Further, in that regard, the telephone number in the diary note — which Mrs Nelson says in the note that she called and on which she left a message — is the mobile telephone number for
Reuben & McGeachie Law. Mrs Nelson has admitted they were her own lawyers. The note records that the call is, “… an emergency call …” and “I left the message to ring me tonight any time”. There was no evidence from anyone in Reuben & McGeachie Law stating they received such a phone message on 1 June 2018 requesting urgent help and setting out steps they took in response.
[95] There is a further issue in relation to this diary entry. In her affidavit of 17 July 2020, Mrs Nelson refers to an occasion in 2017 when she took Mr Posa to Kemp Lawyers (mentioned at [72] above). Her affidavit evidence was that she and Mr Posa had discussed the purpose of the trip. It was to change Mr Posa’s will to leave everything to her. She said that Mr Posa went into a room with the lawyer for about 15 minutes and she was sitting outside. She said she heard Mr Posa say “Ava, everything”. She says the lawyer came out and asked her questions: what was her name, what was her relationship with Mr Posa, and how long had she known Mr Posa. She said when they left Mr Posa had a large envelope with him. She said she did not see what was in it. Mr Posa told her that he had rewritten his will to give everything to her.
[96] This evidence conflicts with Mr Kemp’s evidence. He says no new will was executed on that occasion and (as noted in [72] above) he did not have such a conversation with Mrs Nelson. Further, if Mrs Nelson truly believed Mr Posa had rewritten his will when he visited Mr Kemp in 2017 so that she was the beneficiary of his estate, then the alleged events in the diary note do not make sense.
[97] Additionally, in relation to the visit to Kemp Lawyers, in her affidavit evidence Mrs Nelson said that she took Mr Posa there for the purpose of changing his will. However, under cross-examination Mrs Nelson insisted that she did not know the purpose of the visit to Kemp Lawyers in 2017. She said they never talked about the will and Mr Posa only told her he wanted to go to Kumeu and she thought they were going shopping. She said when they finally went to Kumeu, she said she saw the sign saying it was a lawyer’s office and she waited outside the door.
[98] Then there are handwritten notes Mrs Nelson made relating to Mr Posa’s hospitalisation after his stroke in April 2011. The notes are dated 10 April 2011 and
her affidavit of 17 July 2020, to which they are annexed, presents them as if they were a contemporaneous record. The notes (if accepted) lend weight to the proposition that following Mr Posa’s 2011 stroke, Mrs Nelson and her son Rodney provided support to Mr Posa in the nature of a family unit.
[99] Under cross-examination, Mrs Nelson conceded that the notes were in fact prepared in 2018 after the proceedings were issued, to assist her legal adviser. She accepted that she gave them to her lawyer without clarifying that they were not written on the date at the top of the document, namely 10 April 2011. Without the cross- examination, the way the material was presented risked misleading the Court.
[100] Next, a letter from Work and Income dated 28 February 2020 shows that Mrs Nelson’s superannuation payment has been paid at the single person rate since the initial grant in 2006. The letter states that the writer could not find any changes to Mrs Nelson’s pension due to “Relationship”. The schedule of contact details attached to the letter shows that Mrs Nelson’s address was given as 131 Fred Taylor Drive from 23 May 2017 to 25 March 2018 and from 25 March 2018 to 14 November 2018. Mrs Nelson accepted she told Work and Income that she was living together with her sister (at 131 Fred Taylor Drive).
[101] There is a further Work and Income document which is at odds with Mrs Nelson’s evidence that she and Mr Posa maintained a de facto relationship until his death. There is a change of circumstances Client Event Record dated 14 November 2018 which records “client has been caring for her ex-husband”. The document is dated after Mr Posa’s death so that might provide an explanation for Mr Posa being described as “ex-husband”. However, that statement does not stand on its own. There is the additional statement “while the new wife was out at work”. With the addition of that further statement, I do not consider the use of the expression “ex-husband” was a reference to the fact that Mr Posa had since died. Under cross-examination, Mrs Nelson accepted that she supplied this information to Work and Income but then suggested an unknown third party, pretending to be her, must have supplied this “incorrect” information to Work and Income. I do not accept that is a credible explanation.
[102] Additionally, there is another Work and Income document, being a change of address form, signed by Mrs Nelson and dated 14 November 2018 – the same day as the information she claims was given by a third party to Work and Income regarding her status. The inference to be drawn is that Mrs Nelson provided the information in both documents herself.
[103] Next, Mrs Nelson gave incomplete answers in response to questions about her sister Rosa’s health conditions. The extent to which Rosa suffers a disability is a relevant issue which goes to the question of whether Mrs Nelson spent most of her time caring for her sister, who lived at 131 Fred Taylor Drive, or caring for Mr Posa. In her affidavit, Mrs Nelson said her sister was intellectually disabled. In her oral evidence, Mrs Nelson said that her sister had problems with her vision as she was blind in one eye and she could hardly see from the other. She said her sister was able to walk but could not sometimes see where she was walking. When asked if she needed “24/7 care” she said her sister did not want it. She then said it did not take her up to 24 hours for her to go and see her sister. I found the answers were evasive and they were not followed up in re-examination.
[104] The next matter is more a matter of reliability rather than credibility. It relates to the dates and circumstances of Mrs Nelson’s moving in to live at the house. The dates variously given are August 2016, late 2016, and December 2016. I accept that a certain degree of innocent variation might occur and thus uncertainty about exact dates is potentially understandable. However, there is the availability of fixed external reference dates, such as the dates of the sale of the previous property, the purchase of 131 Fred Taylor Drive and Christmas 2016.
[105] In summary, having regard to the above matters, the Court is cautious about the weight it places on Mrs Nelson’s evidence where it does not have support from other witnesses or from documentary evidence.
[106]I now turn to the individual factors in s 2D of the PRA.
The duration of the relationship
[107] This is a key issue in this case. It is part of the question of whether there was a de facto relationship as at Mr Posa’s death. A determination of the duration will depend on a number of the other factors below.
The nature and extent of common residence
[108] Mrs Nelson’s evidence was that she and Mr Posa lived together first in her property in Arlett Place and then in the house, after it had been completed. That evidence was not seriously contested and I accept it. The cohabitation at the house ended in 1998 after the home invasion. After this, Mrs Nelson did not return to the house but Mr Posa did after a short period at Arlett Place. Mrs Nelson’s evidence was that Mr Posa begged her to come and live with him again but she says she consistently refused to do so until August or December 2016. Other witnesses say early 2017. Whichever of those dates is correct (and it is not necessary to decide the exact date) there is no suggestion by Mrs Nelson that she occupied the bedroom with Mr Posa. She stayed in the spare bedroom while Ms Tenchavez slept in Mr Posa’s bedroom.
Whether or not a sexual relationship existed
[109] After deposing in her first affidavit that she and Mr Posa had sex “right up to the end”, in later affidavits Mrs Nelson acknowledged that the sexual relationship ended around 2004 when Mr Posa could no longer function sexually.
[110] Other evidence, which I accept, is that Mr Posa liked to have relations, whether sexual or not, with women and did not like living on his own. I accept that after 1998 Mr Posa did search for female companions. He suggested marriage in respect of at least some of them.
Degree of financial dependence or inter-dependence and any financial support
[111] Mrs Nelson accepted under cross-examination that she and Mr Posa had led entirely independent financial lives from each other. They were not financially inter-dependent. Nor did she allege she received financial support from Mr Posa. Mrs Nelson is now 80 years old and is retired. A brief summary of her assets over the
years is that she purchased Arlett Place in 1981, a year before Mr Posa purchased the land at 188 Fred Taylor Drive. She (alone) purchased two units in Te Atatu Road. She lived in one and she rented out the other. She sold the units in 2016 in order to purchase the property at 131 Fred Taylor Drive. That latter property is worth approximately
$755,000 with a mortgage of $280,000. On 28 November 2016, Mrs Nelson loaned
$200,000 to her trust, the LRN Trust, through a Deed of Acknowledgment of Debt. On the same day, Mrs Nelson signed a Deed of Gift extinguishing the debt the LRN Trust owed to her. Those were decisions and choices she made. As a consequence, Mrs Nelson’s interest in 131 Fred Taylor Drive is as a discretionary beneficiary. The trustees of the trust are her son Rodney and LRN Trustees Ltd. Mr Posa was not a beneficiary of Mrs Nelson’s trust.
[112] Mrs Nelson and Mr Posa maintained separate bank accounts as, she said, “We just had friendship”. She had no signing authority over Mr Posa’s account, although she may have had his PIN number. Both Mrs Nelson and Mr Posa always received the “single”, “Living Alone” National Superannuation payments. Mr Posa paid the rates on the house, although Mrs Nelson says he gave her cash at times to go to the Council to pay them.
[113] There has been no evidence from Mrs Nelson that Mr Posa gave her any direct financial support either to help with payment of her own mortgages or monthly bills and other such expenses. Mrs Nelson’s evidence was that the mortgage for the Te Atatu Road units was funded by renting out one of the two units.
Ownership, use and acquisition of property
[114] Mrs Nelson and Mr Posa kept ownership of their respective properties entirely separate: Arlett Place, two units in Te Atatu, 131 Fred Taylor Drive and 188 Fred Taylor Drive.
Degree of mutual commitment to a shared life
[115] Mr Connell, for Mr Codilla, submits that after 1998 there was no mutual commitment by Mrs Nelson and Mr Posa to a shared life. I am not so certain that 1998 is the correct date but at least at some stage in the period after 1998 the evidence
demonstrates a lack of commitment on the part of Mr Posa to a shared life. Even accepting Mrs Nelson’s evidence that she was solely committed to Mr Posa, it was not mutual. Mr Posa was not solely committed to Mrs Nelson. The evidence which supports the lack of mutual commitment includes the following:
(a)Mr Posa made a contracting out agreement under the PRA in September 2005 with Ms Wang;
(b)Mr Posa’s EPA for personal care and welfare was in favour of Mr Vezich rather than Mrs Nelson;
(c)Neither Mr Posa nor Mrs Nelson made wills in favour of each other, not even to the level of each leaving the other some sort of keepsake as recognition of at least some shared history;
(d)There was Mr Posa’s attempt to bring Chiryl to New Zealand in 2013. Although Mrs Nelson, on finding this out after Mr Posa’s death, scoffed at this as fanciful, it does demonstrate there was a lack of commitment on Mr Posa’s part to Mrs Nelson. Mr Posa regularly sought other companions suggesting marriage to more than one;
(e)Mr Vezich had been sending funds to the Philippines for Mr Posa, before Mr Posa met either Mr Codilla or Ms Tenchavez. Whether or not that was a sensible or wise course of action is not the issue. The evidence was that Mr Posa was searching for a younger Filipino lady. This was not just a one-off event but went on over a number of years;
(f)There were no recent photos produced by Mrs Nelson evidencing a shared life; and
(g)In the period after Ms Tenchavez’s arrival there were three Christmas Days and three Valentines Days. Mr Posa and Mrs Nelson did not celebrate any of those days together.
Care and support of children
[116] Rodney’s evidence was that he regarded Mr Posa as the senior male figure in his life. However, there is no evidence that Mr Posa supported Rodney financially even in the early years when the relationship commenced.
Performance of household duties
[117] Mrs Nelson’s evidence was that she carried out household duties throughout the period of the alleged relationship. But even on her own evidence she did not carry out the duties entirely by herself. There were others involved including Ms Wang, Ms Trinidad and Ms Tenchavez.
Reputation and public aspects of the relationship
[118] There was evidence from Mr Vezich, who knew Mr Posa very well. He had knowledge of the relationship between Mr Posa and Mrs Nelson from the early days when Mr Posa and Mrs Nelson lived at the house before the home invasion in 1998. He states that Mr Posa had a heart of gold but he would not have been very good for a woman to live with. He says Mr Posa was not very good to Mrs Nelson. He said “She put up with a whole lot of rubbish from Mr Posa for over 40 years”.
[119] The evidence of Mrs Nelson’s sister (Lele Paterson), Mrs Nelson’s friend (Heather Anderson) and Mrs Nelson’s son (Rodney) was largely supportive of Mrs Nelson’s position that they were a couple and continued to be viewed as a couple throughout the entire 40 to 45 year period. Mr McCutcheon acknowledges that there are issues with Mrs Anderson’s credibility as a consequence of her changing her position in her oral evidence. In her affidavit she referred to Mr Posa’s “dalliances” with other women. In her oral evidence she denied that this was a reference to sexual relationships with other women.
[120] One of Mr Posa’s friends, Mr Ujdur, gave evidence for Mrs Nelson. He said he always considered Mr Posa and Mrs Nelson boyfriend and girlfriend before and after 1998. He said over the years Mr Posa had a number of people move in with him to assist him and be home help so the State could see that he did not need to be put
into a rest home. However, there is a basis for considering Mr Ujdur’s evidence as somewhat historical. He accepted he had not seen Mr Posa more often than four times a year on average for the several years preceding Mr Posa’s death.
[121] On the other hand, there was evidence from two others who were close friends of Mr Posa, Mr Craig and Mr O’Leary. Mr O’Leary’s belief was that Mr Posa hated Mrs Nelson, that he tried to get her to leave the house but she would not go. He said over the four years preceding Mr Posa’s death he might have been to the house 20 times. He said he saw Mrs Nelson only once at the house, around six months before Mr Posa’s death.
[122] Another public aspect of the relationship is the way in which Mrs Nelson described herself to others. On the one hand there is a note by the social worker in Mr Posa’s hospital records in April 2011, after Mr Posa had his stroke, where Mrs Nelson describes herself as his partner. However, in other hospital notes she is described as “ex-wife” or “friend”. Some of those descriptions may have been the interpretation placed on the relationship by the person recording the notes, and I do not place a lot of weight on them. However, Mrs Nelson accepted that she described herself on occasion as the “ex-wife”.
[123] There was evidence that Mr Posa and Mrs Nelson repeatedly argued and there were raised voices during the period when Mrs Nelson was living at the house in 2017 and 2018. However, I do not consider the fact of those arguments is particularly helpful in determining the reputation and public aspects of the relationship. Mr Posa was a difficult man and argued, sometimes vigorously, with others, even those he was close to.
Decision
[124] The Court must view the evidence in its totality and on an objective basis. I ask the question whether, as at the date of Mr Posa’s death, was there an unusual relationship when measured against conventional terms, or had any relationship changed to the extent that Mr Posa and Mrs Nelson were no longer in a de facto relationship? Weighing up all of the evidence, I do not consider that Mrs Nelson and Mr Posa were in a de facto relationship at the date of Mr Posa’s death. In particular, I
place weight on the lack of commitment on Mr Posa’s part to a shared life with Mrs Nelson.
[125] I accept there had been a de facto relationship which commenced in the 1970s. I accept the relationship continued after 1998 when Mr Posa moved back to live in the house and when Mrs Nelson continued to live at Arlett Place. But in my view the de facto relationship came to an end at least by 12 September 2005 when Mr Posa signed the contracting out agreement with Ms Wang. I acknowledge that simply because a person may have a sexual relationship with another outside his or her relationship with a de facto partner does not necessarily mean the relationship with the de facto partner has come to an end. But in this case, Mr Posa and Ms Wang signed a contracting out agreement under the PRA which recorded that they were entering into a de facto relationship. Further when searching for female companions, Mr Posa indicated he was interested in marriage, in relation to more than one of them.
[126] I accept that Mrs Nelson continued to associate with and care for Mr Posa for many years after September 2005 until his death. But that was out of friendship and loyalty. It was not a de facto relationship in a changed form. I accept that Mrs Nelson gave up her job in 2011 to assist Mr Posa after his stroke. That is a matter I will take into account in considering Mrs Nelson’s claim under the Testamentary Promises Act. But of itself and considered under this first cause of action, it is not of sufficient weight against the cumulative weight of the other factors which point away from the existence of a de facto relationship.
[127] Nor does the fact that Mrs Nelson moved into the house in either late 2016 or early 2017 change matters. I find that this living arrangement was as much a matter of convenience for Mrs Nelson given the lack of bedroom space at the property at 131 Fred Taylor Drive, as it was to enable her to assist with Mr Posa’s care. I do accept that Mrs Nelson was involved in Mr Posa’s care after she moved into the house, but (as I have already found) she over-stated the amount of care and assistance she provided. But in any event that care and assistance provided was out of loyalty and friendship.
[128] My findings above dispose of Mrs Nelson’s alternative argument that there was a relationship of short duration which commenced when she began living at the house in late 2016 or early 2017.
[129] Finally, it is also necessary to address the issue of whether the Court should grant an extension under s 24 of the PRA to allow Mrs Nelson to make an application for orders for division of relationship property. Section 24(1) provides that an application made after a de facto relationship has ended must be made no later than three years after the de facto relationship ended. I have found that the de facto relationship had ended by September 2005. Although the Court may extend the time for making an application and the Court’s power to do so extends to cases where the time for applying has already expired, in this case not only is any such application significantly out of time, a greater impediment is that there is no evidence as to the value of relationship property as at the date the de facto relationship ended. In those circumstances the Court does not exercise its discretion to extend time under s 24 of the PRA.
[130]For all the above reasons, I find against Mrs Nelson on her first cause of action.
Claim under s 13 of the Property (Relationships) Act (second cause of action)
[131] In her second cause of action Mrs Nelson asks the Court to make an order under s 13 of the PRA to depart from equal sharing. The Court may exercise its discretion to do so if there are extraordinary circumstances which render equal sharing repugnant to justice. Section 13 can be applied in circumstances in which one partner has made more effort in the relationship to care for the other, or where one is significantly disabled.
[132] However, given that I have found that there is no qualifying relationship, this further claim under the PRA does not need to be considered.
Testamentary promises claim (third cause of action)
Legal principles
[133] Mrs Nelson makes her claim under the Testamentary Promises Act. This legislation is aimed at protecting persons who performed work for another in their lifetime in reliance of some unhonoured promise to leave them benefits by a will. Section 3(1) provides in full:
3Estate of deceased person liable to remunerate persons for work done under promise of testamentary provision
(1)Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may be reasonable, having regard to all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate, whether as creditors, beneficiaries, wife, husband, civil union partner, children, next-of- kin, or otherwise.
[134]Under s 3(1) of the Testamentary Promises Act, Mrs Nelson must prove:
(a)she rendered services to Mr Posa or performed work for Mr Posa in his lifetime;
(b)an express or implied promise was made to her by Mr Posa to reward her services or work by provision in his will;
(c)there is a nexus between the services and the promise;
(d)Mr Posa failed to make the promised testamentary provision or otherwise remunerate Mrs Nelson; and
(e)the amount by which the promise or claim is able to be enforced “is to be reasonable having regard to all the circumstances of the case”.
[135] The onus is on Mrs Nelson to establish that the promise was made, at least in part to reward her for services or work either rendered in the past or expected in the future. Mr Posa’s intention is to be objectively inferred, rather than from any belief on Mrs Nelson’s part. In Leach v Perpetual Trustees Estate and Agency Co of New Zealand Ltd, the Court of Appeal said:11
… That requirement [the nexus] is directed to the purpose of that provision rather than the motivation of the promisee. Whether that purpose is established as the necessary link between the provision promised and the services rendered is necessarily a matter of objective inference. …
[136] As to nexus, in keeping with the remedial intention of the Testamentary Promises Act, the courts have been prepared to interpret even very imprecise statements made by a deceased person so as to not deny relief where a reasonably plain case had been made out.12
[137]As to motivation, in the Law of Family Protection and Testamentary Promises
it is said:13
In a number of cases the evidence before the court has established that services were rendered or work performed by a claimant without any intention or even thought of reward. Notwithstanding this, if the deceased subsequently makes a promise to the claimant to make some testamentary provision and fails to carry that promise out a claim will still lie. The position will be similar if the promise is made prior to the rendering of the work and services, but it would be more usual in most cases for there to be a finding that the work or services were at least in part motivated by the promise.
[138]In Byrne v Bishop, the Court of Appeal commented as follows:14
11 Leach v Perpetual Trustees Estate and Agency Co of New Zealand Ltd CA48/88, 20 March 1990 at 9.
12 See cases discussed in W M Paterson Law of Family Protection and Testamentary Promises
(5th ed, Lexis Nexis, Wellington, 2021) at 13.13.
13 At 13.16.
14 Byrne v Bishop [2001] 3 NZLR 780 (CA) at [10].
[10] The motive of the person rendering the services or doing the work is of little importance. In truth, it can really be of no importance where the promise is to reward things done for the promisor in the past (Jones v Public Trustee at 375). The requirement that there must have been a “promise” to reward the claimant is directed to the purpose of the promisor’s provision rather than the motivation of the promisee and it is sufficient that the promise be in part only as a reward for services; family ties and other considerations may also have influenced the making of the promise (Leach v Perpetual Trustees Estate and Agency Company of New Zealand Ltd, CA48/88, 20 March 1990). It would be repugnant if the fact that the services or work were performed out of a generous spirit and not for mercenary reasons or in the hope of reward should count against claimants by way of depriving them of a claim or devaluing it.
[139] The principle referred to above (that the motive of the person rendering the services or doing the work is of little importance) is relevant here. It was put to Mrs Nelson in cross-examination that it was fair to say it was her Christian duty to help out and assist Mr Posa and that she wanted to help people with no expectation of selfish reward. She agreed with that. It was also put to her that she helped Mr Posa sometimes with his care because that was the right thing to do and not because of any expectation of making any money or receiving any reward for that. She accepted that.
[140]There is then the question of quantum. The factors in s 3(1) are:
(a)the circumstances in which the promise was made, and the services rendered or the work was performed;
(b)the value of the services or work;
(c)the value of the testamentary provision promised;
(d)the amount of the estate; and
(e)the nature and amounts of the claims of other persons whether as creditors, beneficiaries, relatives or otherwise.
[141] In Kite v May, Hammond J reviewed a claim by a de facto partner (pre the 2002 amendment to the PRA) of four years’ standing prior to death and after an interval in-between of some five years. The Judge stated:15
[20] The present position is that if services have been rendered to or work performed for the deceased, and there are promises made by that deceased to reward the claimant for those services, the claimant may bring a claim against the estate of the deceased where that promise has not been fulfilled.
[21] The promise need not be a contractually binding one; and it may be made either before or after the services have been rendered or the work performed. Our Courts have taken a liberal approach to what amounts to a promise, which includes, by virtue of amendments to the Act, a statement of intention (Jones v Public Trustee [1962] NZLR 363). But our Courts have stressed that there must be a nexus between the promise on the one hand and the work or services on the other (see e.g. Tucker v Guardian Trust [1961] NZLR 773).
[22] It has also been said that a wide and liberal approach is appropriate as to what are “services” as a necessary ingredient of any claim under the Act. But on the present law, those which are a natural incident and consequence of the family relationship do not qualify as a “service” within the terms of the Act (Re Welch [1990] 3 NZLR 1 (PC)). Hence, where a claimant is a de facto partner of the deceased, the plaintiff must establish services of some particular nature over and above that which naturally flows from the de facto relationship.
[23] If a claimant establishes his or her claim, regardless of the amount or property actually promised by the deceased, the Court has a discretion to award an amount which reasonable in all the circumstances. It is not uncommon to come across cases where Courts have awarded less to a claimant than the amount promised to him or her by the deceased.
[142] Any award should only recognise services and work that were provided beyond those arising from natural love and affection for the deceased. A discussion of these principles is to be found in PH v GH, where Katz J said:16
[95] Services that are provided in the context of a family relationship are usually driven by the natural love and affection arising in such relationships, rather than a promise of testamentary reward. In Byrn [sic] v Bishop the Court of Appeal recognised however that “services” in terms of the LRTPA could include companionship, affection and emotional support that exceeded what was normally to be expected of a relative, a member of the same household, a neighbour, or a friend. In order for relatives’ conduct to qualify as “services”, however, it must go beyond “the normal incidence of their family relationship”. The relatives must undertake burdens and obligations “extending well beyond the give and take of family life”.
Discussion
[174] I first address the issue of onus. If the 2016 will is rational on its face, then Mrs Nelson must establish a tenable case that Mr Posa lacked capacity. If she can do this, then the onus shifts to the defendants to show that Mr Posa had capacity.30 On one view it might be said that a will leaving the estate to a caregiver who Mr Posa had known only since 2014 is not rational on its face. As against that, the 2016 will is consistent with the 2012 will in which Mr Posa left the house to Ms Wang who was only a part-time caregiver by 2012. As already noted, there was no issue over
26 Loosley v Powell, above n 23, at [19].
27 At [20]; and Bishop v O’Dea (1999) 18 FRNZ 492 (CA).
28 Loosley v Powell, above n 23, at [21].
29 Nijsse v Squires CA53/04, 15 December 2004 at [12].
30 Bishop v O’Dea, above n 27, at [3]–[5].
Mr Posa’s testamentary capacity when he made the 2012 will. I will address the relevant evidence and then return to the question of onus.
[175]Mr Posa must have had sufficient understanding of the following three matters:
(a)that he was making a will and the effect of doing so;
(b)the extent of the property being disposed of; and
(c)the moral claims to which he ought to give effect when making the testamentary disposition.
[176] In this case, Mr Posa was not an existing client of Mr Kemp. He had not instructed Mr Kemp before he instructed him on 10 May 2016 to prepare a new will. Mr Kemp’s evidence was that Mr Posa came to his office with Ms Tenchavez and Mr Codilla, who had made the appointment for Mr Posa. Mr Kemp had not met any of the three before. He said for the first 10 minutes he had all three in his meeting room. He then explained to them that he needed to hear directly from Mr Posa about his position, and so Mr Codilla and Ms Tenchavez left the room.
[177] Mr Kemp’s observations in his file note, dated 12 May 2016, were that Mr Posa presented as a person who had impeded speech and he walked with the aid of a frame. Mr Kemp found Mr Posa difficult to understand and he frequently had to repeat back to him what Mr Kemp thought Mr Posa had said.
[178] Mr Posa told Mr Kemp that he had never married, nor had any children. He told Mr Kemp he had a brother, but Mr Kemp gained the impression that he was not in communication with his brother because of a dispute over property in Croatia. Mr Posa told him that Ms Tenchavez lived with him and was very good to him. Mr Kemp obtained Mr Posa’s doctor’s name and he also took a photocopy of Mr Posa’s driver’s licence which verified Mr Posa’s spelling of his name and date of birth. He said Mr Posa had no trouble understanding those concepts.
[179] Mr Kemp said, on balance, Mr Posa gave him the impression of diminished capacity. That was because of his diminished capacity to communicate. Mr Posa also
told Mr Kemp his hearing was only about 20 per cent because of a work accident. But Mr Kemp’s view was that Mr Posa appeared to understand what it meant to make a will and that this involved disposing of his Whenuapai property to Ms Tenchavez and that he had the freedom to do so if there were no other family who had a claim on his estate or unless he had a duty to look after someone else. In that regard, in his covering letter of 12 May 2016 sending Mr Posa a copy of his will, Mr Kemp noted that Mr Posa told him he had no children, grandchildren, partner or any person who would have had a claim on his estate.
[180] At the end of the process on 10 May 2016, Mr Kemp asked Mr Codilla if Mr Posa had an existing will. Mr Codilla said that Mr Posa had screwed up the will or destroyed it. Mr Kemp’s file note at this point states:
I do not really know how Adrian [Codilla] fits into the picture except he seemed friendly with Ninnen [Ms Tenchavez] – that is friendly enough to be driving her around to find a lawyer for Tim to do a will. I checked this with Tim who said he had destroyed it.
[181] In his file note, Mr Kemp also records his thought that Mr Posa was probably vulnerable because he lived alone and no longer drove but was grateful for Ms Tenchavez’s help.
[182] Mr Kemp’s evidence was that he explained to Mr Posa that he would need something from his doctor that would help Mr Kemp understand that Mr Posa had capacity to make a will. The arrangement at the end of the 10 May 2016 meeting was that Mr Posa would come back to approve and sign his will and bring the certificate from his doctor. Mr Kemp said Mr Posa came back to his office on 12 May 2016. Mr Kemp is not clear whether Mr Posa had his doctor’s certificate with him, or whether he went away during the day of 12 May 2016 and came back later in the day with the certificate.
[183] Mr Kemp said the interviews on 10 and 12 May 2016 would have been an hour long. His impression was that Mr Posa could understand everything that Mr Kemp said to him. The difficulty was his speech and making his communications to Mr Kemp clear. He said Mr Posa also presented as somebody who knew his own mind and was insistent about what he was wanting to do with his property.
[184] Mr Kemp said that on 12 May 2016, before Mr Posa executed his will, he explained to him the main terms of the will except the last part of the will giving the executor the freedom to deal with the estate in order to achieve his objectives. He said he only explained the general nature of those powers. He said Mr Posa had his glasses with him and he would look at the relevant part of the will that Mr Kemp was explaining to him. Mr Kemp did not believe Mr Posa misunderstood what he was saying if it was an important point.
[185] Mr Kemp said he understood from Mr Posa that Ms Tenchavez was living in the house with him but Mr Kemp did not know whether she was merely a housekeeper or living there in another capacity.
[186] Dr Wasfy Shahin signed a medical certificate dated 12 May 2016. He is now retired but had been a medical practitioner for approximately 40 years, 12 of which were in general practice in New Zealand. Dr Shahin said that approximately 40 per cent of his patients had been older people over 60 years of age. Dr Shahin remembered Mr Posa as his patient for about four to six years. He said he saw him approximately once a month for general check-ups and in particular for his heart and breathing problems.
[187] Dr Shahin said he never had any doubts about Mr Posa’s mental ability. He described him as very sharp and said he could remember everything. He was often worried about his medication and he could remember the side-effects each medicine had. Dr Shahin said Mr Posa was very accurate in that regard and Mr Posa would discuss with Dr Shahin his concern about possible side-effects of his medication.
[188] Dr Shahin recalled signing the certificate on 12 May 2016, spending about 15 or 20 minutes with Mr Posa on that occasion. The certificate includes the following:
2.In my opinion, the will-maker:
(a)understands what a will is and what its consequences are;
(b)knows the nature and extent of the will-maker’s property;
(c)knows the name of the will-maker’s close relatives and can assess their claims to the will-maker’s property; and
(d)does not have any abnormal state of mind that might distort feelings or judgments relevant to making a will.
[189] Dr Shahin understood that Mr Posa had had a stroke before becoming his patient, but he said over the period that Mr Posa was his patient, his speech did not deteriorate and he could understand Mr Posa when he spoke to him. He said having known him for some years and having known his history he was happy to sign the certificate confirming Mr Posa’s ability to execute a will. Dr Shahin said although he did not know who Mr Posa was making the will in favour of, he was satisfied that he could make a will at that time.
[190] Mr Codilla also called evidence from Dr Jane Casey who is a consultant psychiatrist specialising in geriatric psychiatry. For the last 19 years, Dr Casey has worked in both a private capacity and at the Auckland District Health Board as a specialist in the Mental Health Service for Older People. She worked in Canterbury Hospitals for the 10 years prior to this as a consultant psychiatrist and psychogeriatrician and as a Senior Psychogeriatric Registrar. She is currently an honorary senior lecturer at the University of Auckland and previously worked as a senior lecturer in old age psychiatry for the University of Otago. She is a member of the International Psychogeriatric Association Capacity Shared Interest Forum and the Taskforce for Testamentary Capacity and Undue Influence.
[191] Dr Casey was instructed on 28 February 2020 and was asked to review Mr Posa’s clinical and medical records, in particular the records before and after his will was executed, and provide an independent expert opinion as to his capacity to make a will and to also provide an opinion whether there were any issues likely to be relevant to this case. She was provided with a copy of the amended statement of claim dated 21 October 2019 and some affidavit evidence of lay witnesses including Mr Kemp’s draft affidavit and Dr Shahin’s affidavit.
[192] Dr Casey conducted a thorough review of Mr Posa’s medical files and she summarised Mr Posa’s medical problems in the following way:
33. Mr Posa had multiple medical problems. These include cardiac and respiratory conditions and cerebrovascular disease. In May 2011 he suffered a small L basal ganglia haemorrhage. Assessment of
cognition during this time and in March 2012 demonstrated there to be patchy and variable deficits across the five cognitive domains of attention, memory, fluency, language and visuospatial function. On all testing it is noted that the assessments were constrained by Mr Posa’s thick accent and language difficulties. Further, it is probable that there was a lack of formal education as exemplified by the limitations in calculation and general knowledge. There was no formal diagnosis of a dementia, however, at face value the test results indicate cognitive impairment of at least a mild degree. Given the history and clinical findings, this is likely to have been a Vascular Cognitive Impairment.
[193] Dr Casey’s opinion is that the presence of cognitive impairment or a dementia does not preclude the capacity to decide. She says there is evidence that Mr Posa retained capacity in multiple domains such as the capacity to consent to and decline treatment and the capacity to appoint enduring powers of attorney. She refers to the affidavit evidence saying that he retained financial decision-making capacity.
[194] Dr Casey notes that capacity to decide is task-specific, situation specific and time-specific. She says that individuals may retain the capacity to decide in one domain and not in others. She also notes that individuals are entitled to change their minds. When considering testamentary capacity, she says the more complicated the estate and the situation, the higher the threshold for determination of capacity. She says in the case of Mr Posa, it was a straightforward estate and the rationale for the revision was explored and recorded.
[195] She notes there is evidence (from Mr Kemp) that Mr Posa knew he was revising his will, he knew that his residential property was his main asset, although there is no note as to whether he understood the broad value of the estate and the distribution of his money. He knew that he had no natural beneficiaries and he gave rational and consistent reasons for the distribution of his estate. She notes that Mr Posa revised the distribution from his previous caregiver (Ms Wang) to his current caregiver (Ms Tenchavez).
[196] Dr Casey was questioned about the transient ischaemic episodes in May 2016. She said the medical notes indicated that in this case it was Mr Posa’s vision that was affected and he was weak down his right-hand side. That indicated he had a slight obstruction in the left-middle cerebral artery. But it resolved.
[197] Dr Casey concludes that while Mr Posa had cognitive impairment, at the time he made the 2016 will, there is evidence that he had the requisite capacity to understand and make a consistent and sound assessment of his circumstances and to appreciate the consequences of his decision-making. Dr Casey concludes that on the balance of probabilities Mr Posa would have had testamentary capacity at the time he executed his will on 12 May 2016.
[198] It is necessary to consider Mr Posa’s capacity on 12 May 2016 when he executed the 2016 will. This is the day, subject to the rule in Parker v Felgate,31 on which Mr Posa must have had testamentary capacity in order for the 2016 will to be valid.
[199] Mr Posa’s medical history and presentation up to that date assists by providing context. Dr Shahin had no concerns about giving the certificate on 12 May 2016 on the basis of his questioning of Mr Posa that day and with the context of having treated Mr Posa as a patient for the previous four years.
[200] As far as Dr Casey’s evidence is concerned, while an expert may give opinion evidence on the ultimate issue, in the end the decision is for the Court. Further, Dr Casey did not examine Mr Posa herself. In Loosley v Powell,32 the Court of Appeal noted that the opinions of expert witnesses who did not know the will-maker, and who are making their assessments after the person’s death, must be treated with caution. They are trying to assess mental health from documentary evidence, and the observations of others, without the benefit of knowing or meeting the will-maker.33 However, this is not a case where Dr Casey is giving evidence of lack of capacity after the event. Dr Casey’s opinion is consistent with that of Dr Shahin, who did examine Mr Posa.
[201] Mr Codilla says he had no doubts about Mr Posa’s mental capacity. He said he was very sharp when he had discussions with him and, notwithstanding his thick
31 Parker v Felgate (1883) 8 PD 171 at 173–174. The rule (which is not relied on in this case) is that if, when instructions were given by a will-maker, that will-maker had testamentary capacity, the will can be valid even though that testamentary capacity had been lost by the time of execution.
32 Loosley v Powell, above n 23, at [94].
33 At [94].
accent, you could have a very sensible conversation with him and he was very sharp, particularly with figures. Mr Codilla gives the example of Mr Posa setting up items in his entertainment room. Mr Posa would give him instructions as to what he was to do, making it very clear what steps Mr Codilla was to follow step-by-step to achieve the installation of the piece of equipment. He says he first met Mr Posa when he was introduced to him by Ms Trinidad in 2013 and he never doubted Mr Posa’s mental capacity or determination.
[202] Ms Tenchavez says from the time she first started regularly speaking to Mr Posa by phone to when he began receiving palliative care (which was subsequent to the execution of the 2016 will) Mr Posa’s mental state was very clear. She says he was demanding and opinionated, but never confused or uncertain. She says he was not forgetful. He kept an eye on his financial affairs and would call his bank or visit the bank quite often to check his balances and transactions. She said that when bank statements arrived he would check them carefully. She said that Mr Posa enjoyed tinkering with appliances, electronic items and audio equipment. On several occasions he took an appliance apart to see how it worked and put it back together again.
[203] It can be inferred that Mrs Nelson considered Mr Posa had the requisite mental capacity as well, at the relevant time, because she says she took him to Kemp Lawyers in 2017 to make a will.
[204] I am satisfied on the evidence, particularly that of Mr Kemp and Dr Shahin, that Mr Posa knew he was making a will and the effect of doing so. I am also satisfied, based on the evidence of Mr Kemp, that Mr Posa knew that his estate consisted of his residential property. There were no details taken by Mr Kemp in relation to cash assets. However, that portion of his estate was relatively small. As far as Mr Posa’s understanding of any moral claims on his estate, there was no mention on his part of Mrs Nelson. But I have found that Mr Posa and Mrs Nelson were not in a de facto relationship at the relevant time. As against that, Mr Posa did not fulfil his duty as regards his testamentary promises to Mrs Nelson. But there was consistency in the identities of the beneficiaries of his estate as between his 2012 and 2016 wills. In 2012, the principal beneficiary was Ms Wang who had been his caregiver and who had then returned to assist with his care after his stroke in 2011.
[205] Having regard to all the above evidence, I do not consider that Mrs Nelson has established a tenable case that Mr Posa lacked testamentary capacity when he made the 2016 will. But in any event, had the onus shifted to the defendants, I accept that they have demonstrated, on the balance of probabilities, that Mr Posa did have testamentary capacity at the relevant time.
Undue influence (fifth cause of action)
[206] Mr McCutcheon submits it is apparent that the 2016 will was written on the basis of undue influence. Mr McCutcheon accepts that in this case where Mr Posa gifted his residential property that formed the bulk of his estate to someone engaged as a home helper who had arrived in the country six months or so earlier, does not necessarily mean that the will is the result of undue influence. But he submits it does invite the closer scrutiny of the Court.
[207] Mr McCutcheon further submits that it was obvious there was an arrangement whereby Ms Tenchavez would assist with Mr Posa’s care and would be rewarded by having her education paid for which would then allow her to stay in the country according to her visa conditions. He submits it seems reasonable to assume on the balance of probabilities that Ms Tenchavez being left Mr Posa’s house was also part of the arrangement.
[208] He submits that Mr Posa was clearly in a weakened state mentally and physically when he executed his 2016 will. He also had a fear that his house would be taken away from him unless he was seen by the State to be taking care of his day-to-day living needs. He had a need not to be left alone at night. He submits that overall the 2016 will was completed in haste and without sober judgment.
Legal principles
[209]There is a helpful summary of the applicable principles in Green v Green.34
Those legal principles are as follows:35
34 Green v Green [2015] NZHC 1218, at [100] adopting principles from the House of Lords in Royal Bank of Scotland v Etridge [2002] 2 AC 773 (HL), approved by the Court of Appeal in Hogan v Commercial Factors Ltd [2006] 3 NZLR 618 (CA) at [36].
35 At [100] (citations omitted).
(a)The overall burden of proof rests on the person seeking to establish undue influence.
(b)The burden of proof is the balance of probabilities. …
(c)The person asserting undue influence must show that the alleged influence led to the making of the impugned transaction, and that the influence was undue in the sense that the transaction was not the result of the free exercise of an independent will on the part of the person at whose expense the transaction was made.
(d)The question of whether a transaction was brought about by undue influence is a question of fact. A party can succeed in establishing this either directly by proving “actual undue influence” or recourse to an evidential presumption which arises where it is established that:
(i)the person said to have been subject to undue influence placed trust and confidence in the other; and
(ii)the transaction called for explanation.
(e)Whether there is a relationship of trust and confidence can either be established factually or by reference to a class of specific relationships such as lawyer/client; parent/child; doctor/patient. In the latter category the law presumes irrebutably that one party had influence over the other. The presumption is only as to proof of influence. The person alleging undue influence will still need to establish a transaction calling for an explanation.
(f)Whether a transaction calls for an explanation depends on the circumstances of the case. The question is simply whether “failing proof to the contrary, [the transaction] was explicable only on the basis that undue influence had been exercised to procure it”.
(g)Once the person claiming undue influence has established both the relationship of trust and confidence and a transaction calling for explanation, the evidential burden shifts to the person seeking to uphold the transaction to show that the transaction was not the result of undue influence. This however should not obscure the position that the overall burden of proof will always rest on the person alleging undue influence.
(h)The presence of independent advice is one of many factors that may be taken into account in determining whether undue influence is proved. Whether the independent advice helps to establish that the transaction was the result of a person’s free will depends on the facts of the case. Independent advice can help establish that a person understood the decision they were making. But establishing that a person fully understood the act is not the same as establishing that the act was not brought about by undue influence. A person can fully understand an act and still be subject to undue influence.
(i)Allegations of undue influence may succeed in relation to the exercise of powers not just the transfer of property.
[210] In relation to allegations of undue influence in the making of a new will, there were the following additional points in Green v Green:36
[101] In relation to the alleged undue influence in the making of a new will I recognise the following additional points:
(a)In relation to the alleged undue influence in the making of a new will, the burden of proof rests upon the plaintiff. …
(b)Pressure of whatever character can amount to undue influence if it overbears the will of the testator. As Sir JP Wilde recognised:
To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, — these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.
(c)It is not necessary to provide direct evidence of undue influence, circumstantial evidence is sufficient. However, as Fisher J observed in Hayden v Simeti:
…it is not enough to show that others had the means and opportunity to unduly influence the deceased and that there has been a recent testamentary disposition in their favour. The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.
36 Green v Green, above n 34, at [101] (citations omitted).
Discussion
[211] As against the submissions made on behalf of Mrs Nelson there is the following:
(a)Mr Posa was physically frail, but he was mentally determined. Evidence on this issue comes from witnesses on both sides of the case.
(b)In 2016, at the time of making his will (and afterwards) Mr Posa made demands of all manner of people and was determined to have his requests, or more accurately his demands, met. He had a very strong will. He was stubborn and if he did not want to do something, he did not do it.
[212] One example of Mr Posa knowing his own mind is that while relying on Mr Codilla for assistance in a number of matters, Mr Posa resolutely did not adopt Mr Codilla’s religious values, nor did he follow the teachings of Mr Codilla’s church.
[213] Next, Mr Posa made his will with an independent solicitor, Mr Kemp. As is apparent from my discussion in the previous part of this judgment, Mr Kemp considered he had reliable instructions from Mr Posa. However, as also discussed above, Mr Kemp took the precaution of obtaining a medical certificate from Mr Posa’s general practitioner which confirmed testamentary capacity. I acknowledge the point made in Green v Green that a person can fully understand an act and yet still be subject to undue influence. However there is further evidence the Court can rely on.
[214] Dr Casey also touched on the issue of undue influence in her evidence which was not challenged by way of other expert medical evidence. While her evidence needs to be considered on the basis that she did not in fact meet Mr Posa, on the other hand she has the advantage of being independent. She gives an opinion on this issue as follows:
38.Mr Posa had multiple medical problems and was dependent on others for physical cares and support. He was therefore a vulnerable individual due to his age, cognitive impairment, communication and language difficulties and a physical dependency on others. Mr Posa needed to be driven to his lawyer and General Practitioner
appointments. However, Mr Posa was interviewed on his own on several occasions during the process of the revision of the Will.
39.There was no clear evidence of psychological dependency. The Affidavit evidence is that Mr Posa was a reliable and loyal person who formed strong opinions and knew his own mind. In the literature, these characteristics maybe protective and render a person less susceptible to undue influence. The vulnerability of disabled older people to carers is a well-established phenomenon. It is also recognised that some older people use their financial resources to bargain with carers, using promises of Will bequests to secure promises of care. This is seen in the medical literature to be a possible protective or mitigating factor in the susceptibility to undue influence.
[215] Mr Posa’s financial support of Ms Tenchavez was not uncharacteristic of his behaviour towards other women he had made contact with in the Philippines. There is unchallenged evidence that Mr Posa had been sending money to different women in the Philippines over a number of years prior to his meeting Ms Tenchavez. Mr Posa’s gifts to her and his sending of money to her mother are consistent with that conduct.
[216] It is clear that Ms Tenchavez did have a large role in Mr Posa’s life. However, there were certain aspects of his life that he reserved for himself, such as his finances, which he carefully controlled. Mr Posa had communicated with Ms Tenchavez for around two years before she arrived in New Zealand. The evidence suggests he took an immediate liking to her notwithstanding they were not in an intimate relationship. This is consistent with Mr Posa’s relationships with previous caregivers, most notably Ms Wang, who was a principal beneficiary under Mr Posa’s 2012 will. In that sense there was nothing unusual about Mr Posa choosing to make Ms Tenchavez the beneficiary of the 2016 will.
[217] I also note that Mr Posa was not solely reliant on Ms Tenchavez after her arrival in New Zealand in 2015. He continued to call on male friends to assist him and Mrs Nelson was involved in his care as well as Ms Tenchavez.
[218] I do not accept there was any collusion between Mr Codilla and Ms Tenchavez as suggested by Mr McCutcheon. While Mr Codilla was instrumental in introducing Mr Posa to Ms Tenchavez, this sort of arrangement was no more than Mr Posa had sought to achieve through other avenues on many earlier occasions.
[219] In short, it cannot be said that the 2016 will was explicable only on the basis that undue influence had been exercised by Ms Tenchavez to procure it. Mrs Nelson fails on the burden of proof on this cause of action.
Did Mr Posa revoke the 2016 will?
[220] Finally, there is the issue as to whether Mr Posa had revoked the 2016 will. I have already referred to some of the evidence on this issue (at [74] above).
[221] There was evidence in Mrs Nelson’s affidavit and oral evidence from her to the effect that Mr Posa had cut up and ripped up a copy of his 2016 will. She was cross-examined on the issue. This did not form part of the pleadings but I asked counsel to address the issue in their closing submissions.
[222] Section 16 of the Wills Act 2007 exhaustively lists all the ways in which a will may be revoked. That section provides in relevant part:
16 Revocation
A valid will, or part of a valid will, may be revoked, but only by one of the following means:
…
(e)the will-maker, with the intention of revoking the will or the part, destroys the will or the part; or
…
(g)the will-maker does anything else in relation to the will that satisfies the High Court that the will-maker intended to revoke the will;
…
[223] In this case counsel were all agreed that if Mrs Nelson’s evidence were to be accepted, it would have been a copy of the will that was cut up rather than the original. Mr Connell suggests (without accepting Mrs Nelson’s evidence) that the relevant part of s 16 would be s 16(g). Mr Tetzlaff suggests s 16(e) is the relevant provision.
[224] It is first necessary, however, to make an assessment of Mrs Nelson’s evidence on this issue. In her affidavit of 17 July 2020, Mrs Nelson said that one evening
Mr Posa said that the 2016 will and “the Filipinos” were “no good” and that she should get “everything”. She said he cut up and ripped up a copy of the 2016 will in front of her. She said she put the pieces in a bag, put the bag on top of the wardrobe and that she had given some pieces to her lawyer. Copies of those pieces were annexed to her affidavit.
[225] Assuming that the affidavit is written in a chronological order, it would appear that this alleged event occurred prior to the 2017 visit to Kemp Lawyers, because that visit is referred to in the affidavit after the alleged cutting up of the will. As earlier noted, Mrs Nelson said that she and Mr Posa had discussed that the purpose of the trip was to change Mr Posa’s will to leave everything to her (although she said in oral evidence she did not know the purpose of the visit). She said that when they left the lawyers, Mr Posa had a large envelope with him. She did not see what was in it and Mr Posa told her that he had rewritten his will to leave everything to her. She said Mr Posa put the large envelope on top of his wardrobe when he got home. She alleges the envelope went missing, that Mr Posa got very angry about that and they confronted Ms Tenchavez about the missing envelope and Ms Tenchavez returned it. Ms Tenchavez denies she took the envelope.
[226] Mrs Nelson said in the last six months of Mr Posa’s life he was always talking about his will and he asked Mr Vezich on a number of occasions to take Mr Posa to the lawyers for a new will. She said she told Mr Vezich not to worry about taking Mr Posa to the lawyers because his will had already been sorted out. She said she had not seen what was in the envelope on the top of the wardrobe but she thought, on the basis of the visit to Kemp Lawyers in 2017, that Mr Posa had changed his will to give everything to her.
[227] She says that on one occasion Mr Posa got really upset. He said that “the Filipinos” should not get anything and that she had to burn papers. He directed Mrs Nelson to start a fire and burn certain papers. The envelope that was on top of the wardrobe, the contents of which she never saw, was burned and so were the pieces of the copy of the will that Mr Posa had cut and ripped up earlier, which she had saved in the bag on top of the wardrobe. She said the pieces that were left and were annexed to her affidavit are those that she saved and did not burn.
[228] There is arguably some support for Mrs Nelson’s evidence in relation to Mr Posa’s intention at the time. As referred to in [68] above, Mr Vezich’s evidence was that towards the end of his life Mr Posa regretted signing the 2016 will and that he wanted that will “cancelled” and wanted a new will. There is also evidence I have accepted that Mr Posa physically destroyed either the original or a copy of the 2012 will.
[229] Despite that supporting evidence from Mr Vezich and evidence of a previous destruction, I do not find the evidence on the alleged revocation convincing. Not only are there question marks over Mrs Nelson’s credibility, there is also the following:
(a)Mr Posa had uplifted his two previous wills made in 2005 and 2012 from Vlatkovich & McGowan. So he knew how to retrieve an original will and effectively revoke it. He could have followed this process with the 2016 will but did not;
(b)Although there is evidence which I have accepted that Mr Posa physically destroyed either the original or a copy of the 2012 will, he followed this up by making a new will in 2016;
(c)Mr Posa’s subsequent behaviour after the events alleged by Mrs Nelson is not that of a person who intended to revoke his 2016 will. He did not uplift and destroy the original 2016 will held by Kemp Lawyers and did not execute a new will; and
(d)Importantly he had the opportunity to execute a new will when he attended at Kemp Lawyers office in 2017. He did not do so.
[230] For the above reasons, Mrs Nelson has not established, on the balance of probabilities, that Mr Posa revoked the 2016 will by cutting up or ripping up a copy of the 2016 will. Although the pieces annexed to one of Mrs Nelson’s affidavits appear to be pieces of a copy of the 2016 will, I do not accept that Mr Posa revoked the 2016 will by cutting up or ripping up a copy of that will.
Result
[231]In summary, the results are as follows:
(a)Mrs Nelson fails in her first cause of action seeking a division of alleged relationship property under s 25 of the PRA. She and Mr Posa were not in a de facto relationship at the time of Mr Posa’s death;
(b)Mrs Nelson fails in her second cause of action seeking a share of the division of alleged relationship property greater than 50 per cent under s 13 of the PRA;
(c)Mrs Nelson succeeds in her third cause of action under the Testamentary Promises Act. It is reasonable that the estate of Mr Posa pay Mrs Nelson a sum amounting to 65 per cent of the value of Mr Posa’s estate;
(d)Mrs Nelson fails in her fourth cause of action seeking a revocation of probate on the ground that Mr Posa did not have testamentary capacity when he executed the 2016 will. Mr Posa did have testamentary capacity at the time he executed the 2016 will;
(e)Mrs Nelson fails on her fifth cause of action seeking revocation of probate on the ground of undue influence. Mr Posa was not subject to undue influence at the time he executed the 2016 will; and
(f)Mr Posa did not revoke his 2016 will by destroying a copy of that will. Accordingly under that will (and having regard to my decision on the third cause of action), Ms Tenchavez is entitled to 35 per cent of the value of Mr Posa’s estate.
Orders
[232] The first, second, fourth and fifth causes of action are dismissed. Under the third cause of action I direct payment by the estate of Mr Posa to Mrs Nelson of a sum of money equating to 65 per cent of the value of the estate.
Costs
[233] I did not hear from the parties on costs and accordingly reserve costs. Mrs Nelson has succeeded in part and is, prima facie, entitled to costs. If the parties are able to agree costs, a joint memorandum is to be filed within 20 days of the date of this judgment.
[234] If costs cannot be agreed, Mrs Nelson is to file and serve her memorandum within five working days of the date for the joint memorandum. The defendants are to file and serve their memoranda within five working days of service on them of Mrs Nelson’s memorandum. Memoranda should not exceed five pages excluding any attachments.
[235]I will determine costs on the papers.
Gordon J
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