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 City Mission and Cholmondeley Children’s Home. Any vehicle owned by her was to be sold, and the proceeds paid to the Child Cancer Foundation. The will bequeathed $20,000 to the Spencers and $20,000 to the Harrises. Any residue was to be divided in one share to the SPCA Canterbury branch and a second share between WSPA, Save Animals From Exploitation (“SAFE”) and the SPCA national office.

[8]    In September 2014, as was her habit, Pamela dropped notes in the Spencers’ and Harrises’ letter boxes stating that she wished to make a few small changes to her will. Those included directions for her cremation, the disposal of her pets, and decisions to be made if she needed to go into a rest home. After receiving that note, Mr Spencer rang Pamela and suggested they all meet for lunch in order to discuss her directions. Later in the same month, Pamela dropped off another note to the Spencers and Harrises. This note, dated 20 September 2014, stated that she would not attend lunch and that she no longer wished to keep in contact with them.

[9]    The applicants reconciled with Pamela in June or July 2016 after learning that she was ill. Thereafter they continued to have a good relationship with her. They would regularly assist Pamela to care for her garden, carried out work around her home, and completed shopping and errands for Pamela. The applicants have exhibited a note from Pamela to Jacqueline as evidence of this. Pamela thanks “Jacqui” for being so caring, states that she will see her on weekends for the next two months or so, and asks if Andrew could do some gardening for her. There is also a note that Pamela gave Jacqueline along with a ring for her birthday. The applicants have deposed that Pamela said to them on a number of occasions after their reconciliation that everything was to be left by her to the two of them.

[10]   Consistent with Pamela’s changed position towards her family is a final undated note that the Spencers and Harrises received from Pamela which was, as before, dropped into their letterboxes. It stated that she had cancelled her will “due to family issues” and thanked them “for caring”. It said:

After NO contact for over 10 yrs! All the Palmer family from Australia & NZ are now together in NZ Nth Canterbury. Permanently they are now owners & carers of my home, contents, estates, car etc.

[11]   After receiving the note, both couples tried on two or three occasions to call Pamela but these approaches were “brushed off”. A similar note “to AMI” was found in Pamela’s bedside cabinet after she died. AMI Insurance was the insurer for Pamela’s home and contents. That note stated:

I am advising you I have now cancelled my will & testament (Date) due to family circumstances. After NO contact for over 10 yrs, all the Palmer family from Australia & NZ are coming together to live in NZ Nth Canterbury permanently. They are now owner/carers of my estate, home, contents & car.

[12]   Pamela died on 2 July 2017, having formalised no new will beyond that executed in 2009. The net assets of Pamela’s estate can be broadly summarised as follows:

(a)Property at 103A Kippenberger Avenue, Rangiora, (RV $325,000) with a market appraisal, as at October 2017, of between $310,000-$345,000.

(b)Suzuki Jimny 2012 motor vehicle (estimated value of $14,000 to

$16,000).

(c)Cheque account with Westpac (approximate balance of $33,000).

(d)Household chattels (value unknown).

The document sought to be validated

[13]   After Pamela died, the applicants were choosing clothes for her to be dressed in for her cremation when they found a note in her bedroom wardrobe. The note was attached to an expander file holding Pamela’s important personal documents, such as bank statements, accounts, car insurance, marriage documents and birth certificate. It purports to be an informal will made by Pamela.

[14]The undated note is handwritten, and reads as follows:

Will & Testament Pam Palmer

My estate, house, furniture & contents go to Andrew & Jacqui Palmer plus
$20,000 plus car!

When house sold… money to following charities I support. SPCA, WSPAC, WWF, Blind Society, SAFE. $400.00 each!

My trustees are… Andrew & Jacqui Palmer. 2 Alessio Lane, Swannanoa, Rangiora R.D.5

Nov 16

[15]At the bottom of the note there appears to be Pamela’s signature.

The application

[16]   The application to validate Pamela’s note is based on the proposition that it records Pamela’s last known testamentary intentions. Unfortunately, Pamela died without taking any formal steps to ratify those intentions by making a further formal will.

[17]Section 14 of the Act provides as follows:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will; and

(b)does not comply with section 11; and

(c)came into existence in or out of New Zealand.

(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person's testamentary intentions.

(3)The court may consider—

(a)the document; and

(b)evidence on the signing and witnessing of the document; and

(c)evidence on the deceased person's testamentary intentions; and

(d)evidence of statements made by the deceased person.

[18]   It is now recognised that the Court is entitled to take a robust approach to the application of s 14.1 In making the assessment required by the section, the Court is entitled to consider both the document itself and evidence of statements made by the deceased regarding his or her testamentary intentions.

[19]   Pamela’s note constitutes a “document” under s 6 of the Act. That document does not comply with the requirements of execution and attestation of s 11 of the Act, and it came into existence in New Zealand. The requirements of s 14 that call for assessment in this case are:

(a)whether the document appears to be a will; and

(b)whether the Court can be satisfied that the document expresses Pamela’s testamentary intentions.

[20]   SAFE and the SPCA originally indicated that they intended to oppose the application. However, by formal memorandum of 7 May 2019 both charities have given formal notice that they do not oppose. SAFE had filed a notice of opposition which it has since withdrawn. From the applicants’ submissions dated 4 June, it is apparent that the applicants have come to arrangements with some of the charitable beneficiaries under the 2009 will which would otherwise have been entitled to legacies under that instrument.

[21]   The named respondents, the Spencers and the Harrises, who were appointed executors and trustees under the 2009 will have adopted a neutral position and abide the decision of the Court.

1      Re Estate of Feron [2012] NZHC 44, [2012] NZLR 551 at [11].

Does the document appear to be a will?

[22]   The requirement that the document appear to be a will is concerned with the meaning conveyed by the content of the document rather than its form.2 The essential inquiry is whether the document does any or all of the things described in the definition of the word “will” in s 8 of the Act.3 Section 8 provides as follows:

8        Meaning of will

(1)Will means a document that—

(a)is made by a natural person; and

(b)does any or all of the following:

(i)         disposes of property to which the person is entitled when he or she dies; or

(ii)        disposes of property to which the person's personal representative becomes entitled as personal representative after the person's death; or

(iii)appoints a testamentary guardian.

…

[23]   Whether a document appears to be a will therefore turns on whether the document has the effect of disposing of a person’s property when he or she dies. The Court is entitled to consider evidence of the deceased’s testamentary intentions and of statements made by the deceased when determining that issue.4

[24]   The document purports to dispose of Pamela’s house, furniture, contents and car, in addition to making monetary gifts to the applicants and several charities. While very much abbreviated, it follows, at least in outline, a similar pattern to the earlier formal wills. Clearly, it is not as robust or fulsome as the legally executed wills, but provides a reasonably sound “skeleton for a will”.5 It cannot be read as other than addressing the maker’s testamentary intentions.

2      Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].

3      Re Estate of Campbell, above n 2, at [11].

4      Re Estate of Feron, above n 1.

5      Re Estate of Feron, above n 1, at [18].

[25]   There are also indicators that the document was intended to be the deceased’s will in form, not just in content. The document is headed with the formal words “Will & Testament Pam Parker” and signed by the deceased. In Maguire v Maguire the heading of a letter with “My Will” was found to be a clear indicator that it was intended as a formal will.6 Similarly, in Re Estate of Kronfeld four documents in an envelope marked “GK’s will” were validated under s 14.7

[26]I am satisfied that the document appears to be a will.

Does the document express Pamela’s testamentary intentions?

[27]   The approach to the assessment of whether the document adequately expresses the maker’s testamentary intentions was summarised in Caird v Caird:8

[39]      This Court has remarked that a person who in good faith sets out to express his or her testamentary intentions should not have those intentions thwarted by technicalities, and that the Court should endeavour to give effect to the deceased person's intentions.9 Where there is evidence of the person's testamentary intentions, it is better that they be given effect, in preference to the disposition of property which would take effect under any previous will, or in the situation of intestacy.10

[40]   The existence of the document will of itself be an indication that the deceased person did not wish the disposition which would otherwise occur to take place.11 However, it must be established on the balance of probabilities that the evidence as a whole, including evidence of the will-maker's statements and testamentary intentions, that the document expresses that person's intentions.12 The test is not an objective one. It is specific to the particular deceased person and no two cases will necessarily be the same.13 Any evidence which may assist to determine that question may be taken into account.14

[28]   The formalities described at [25] indicate that Pamela did intend the document to be a legally effective will.

6      Maguire v Maguire [2018] NZHC 3097 at [14].

7      Re Estate of Kronfeld [2013] NZHC 1810.

8      Caird v Caird [2018] NZHC 1605.

9      Re Estate of Wong [2014] NZHC 2554 at [24].

10     Re Estate of Campbell, above n 2, at [18].

11 At [18].

12     At [16]; Re Estate of Wong, above n 9, at [24].

13     Re Estate of Campbell, above n 2, at [16].

14     At [15] and [16].

[29]   The circumstances surrounding the making of Pamela’s 2003 and 2009 wills and the present document align with the narratives provided as to the nature and state of her relationships at those times, in particular the narratives provided by the Spencers and the Harrises, on the one hand, and the applicants, on the other. The applicants took priority in Pamela’s 2003 will because they were heavily involved in her life at the time. The exclusion of the applicants in her 2009 will is consistent with the estrangement that occurred in 2008. The reconciliation that took place in 2016 is consistent with Pamela wishing to reinclude them in her will.

[30]   The applicants have deposed that Pamela made a number of statements to the effect that she intended to leave everything to them. This is supported by the purported will along with the notes given to the Spencers and Harrises and the note left for AMI, which recorded that Pamela had cancelled her will and was leaving her estate to the applicants. The making of this declaration to multiple parties strongly indicates her revised testamentary intentions.

[31]   Some care is required to be taken in situations such as the present, where the document sought to be validated has been located by the persons who stand to benefit from its validation. However, in the present case the document the subject of the application aligns not just with the intentions expressed by Pamela to the applicants but with the undisputed evidence of steps taken by Pamela to inform the Spencers and Harrises of her changed intentions and the reasons she provided to them at the time for that changed course.

[32]   In the circumstances, I am satisfied that the informal document accurately represents Pamela’s testamentary intentions at the time of her death. It accords with the known circumstances, and parallels the notes and statements made by her to various people.

Order

[33]   Being satisfied that the note of November 2016 is a document which has the appearance of a will and expresses the deceased’s testamentary intentions, there will be an order under s 14 of the Wills Act declaring the document to be the valid last will of Pamela Palmer.

Costs

[34]   As agreed between the parties, there will be orders directing that the costs of both the applicants and the respondents be met from the proceeds of the deceased’s estate.

Solicitors:

Law4you, Rangiora, for Applicants

Harmans Lawyers, Christchurch, for First Respondents Wynn Williams & Co, Christchurch, for Second Respondent