Palmer v Spencer - [2019] NZHC 1808

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-102

[2019] NZHC 1808

UNDER the Wills Act 2007, s 14

IN THE MATTER OF

the estate of Pamela Palmer

BETWEEN

ANDREW CHARLES PITT PALMER AND JACQUELINE GWENDOLYN PALMER

Applicants

AND

ALAN SPENCER, VIVIENNE SPENCER, MALCOLM HARRIS AND LORRAINE HARRIS

First Respondents

SAVE ANIMALS FROM EXPLOITATION INCORPORATED

Second Respondent

Hearing: On the papers

Counsel:

A J Forbes QC for the Applicants B Burke for First Respondents

S Woods for Second Respondent

Judgment:

30 July 2019

JUDGMENT OF MANDER J

This judgment was delivered by me on 30 July 2019 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: .

PALMER v SPENCER [2019] NZHC 1808 [30 July 2019]

Introduction

[1] The applicants, Andrew and Jacqueline Palmer, seek a declaration pursuant to s 14 of the Wills Act 2007 “the Act”, declaring a document to be the valid will of Andrew’s stepmother, Pamela Parker. Pamela died on 2 July 2017. She had no children of her own. Andrew was the son of her late husband.

[2] Pamela had made at least two previous wills, dated 10 September 2003 and 9 June 2009. The document which is sought to be validated as her final will is a note dated November 2016. The application is not opposed.

Background

[3] Pamela married Richard Palmer in 1976. Richard had been married previously, and from that marriage had a son, Andrew, and two daughters, Sarah and Nicola. Andrew had regular contact with Pamela when he was young, and describes her as effectively becoming his second mother. Pamela had no children of her own.

[4] Andrew married Jacqueline, the second applicant, in 1997. They maintained regular contact with Pamela for some 11 years after their marriage.

[5] Pamela made a will with her lawyers in 2003. It bequeathed all her chattels to Andrew and Jaqueline on trust, for them to select such items as they desired and give the remaining items to the Christchurch City Mission. It left $30,000 to Andrew and Jacqueline, $20,000 to Pamela’s stepdaughter Sarah and $5,000 to her stepdaughter Nicola. The residue of the estate was to be divided between the Society for the Protection of Cruelty to Animals (“SPCA”) and the World Society for the Protection of Animals (“WSPA”).

[6] In 2008, there was a falling out between the deceased and the applicants, as a result of something the applicants’ young son said to Pamela while she was looking after him. They had no contact for almost 10 years. This appeared to be the catalyst for Pamela to make a new will in 2009. It appointed as executors and trustees her friends Alan and Vivienne Spencer, and Malcom and Lorraine Harris, each of whom are named as the first respondents.

[7] The 2009 will bequeathed all Pamela’s chattels to her trustees to select and keep as they wished, and to give the remaining items to the Salvation Army, Christchurch…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Palmer v Spencer

Details

AGLC: Palmer v Spencer [2019] NZHC 1808
Case: [2019] NZHC 1808
Decision Date: 30 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Andrew and Jacqueline Palmer sought a declaration that a document was the valid will of Pamela Palmer, their stepmother, who died on 2 July 2017. Pamela had previously made wills in 2003 and 2009, which left her estate to various beneficiaries, including the applicants and several charities. However, in November 2016, the applicants found a handwritten note attached to an expander file containing Pamela's important personal documents, which they believed to be her final will. The note left Pamela's estate, house, furniture, contents, and car to the applicants and several charities. The named respondents, who were appointed executors and trustees under the 2009 will, adopted a neutral position. The court had to decide whether the document appeared to be a will and whether it expressed Pamela's testamentary intentions. The court found that the document appeared to be a will and expressed Pamela's testamentary intentions. The court validated the note as Pamela's last will.

The court found that the document appeared to be a will because it followed the pattern of the previous wills and contained a heading stating "Will & Testament Pam Palmer" and was signed by the deceased. The court also found that the document expressed Pamela's testamentary intentions because the circumstances surrounding the making of the document aligned with the narratives provided as to the nature and state of her relationships at that time. The applicants deposed that Pamela had made statements to the effect that she intended to leave everything to them, and the note left for AMI Insurance recorded that Pamela had cancelled her will and was leaving her estate to the applicants. The court found that the informal document accurately represented Pamela's testamentary intentions at the time of her death.

Orders