Pfaender v Gregory
[2018] NZHC 161
•16 February 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CIV-2017-488-49
[2018] NZHC 161
UNDER The Wills Act 2007 IN THE MATTER
of the Estate of BRUCE CRAIG GREGORY
BETWEEN
GABRIELE EVELINE PFAENDER
Applicant
AND
ARAHI CHARLES GREGORY
First Respondent
AND
KIMI MARIE WITTY
Second Respondent
AND
MANA THOR GREGORY
Third Respondent
AND
TUPU ARTHUR GREGORY
Fourth Respondent
AND
THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED
Fifth Respondent
On the papers
Appearances:
J Browne for Applicant
No appearance for or on behalf of the Respondents
Judgment:
16 February 2018
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 16 February 2018 at 11.00 am Pursuant to Rule 11.5 High Court Rules
Pfaender v Gregory [2018] NZHC 161 [16 February 2018]
Registrar/Deputy Registrar
Introduction
[1] Dr Bruce Craig Gregory was a well-respected member of the Northland community. He died in hospital on 29 October 2015, aged 78.
[2] Ms Gabriele Eveline Pfaender was Dr Gregory’s long term de facto partner. When they met in February 1992, Dr Gregory was separated from his wife. Dr Gregory’s marriage with his former wife was formally dissolved on 16 July 1993. Ms Pfaender and Dr Gregory’s close relationship commenced at the end of 1992 and continued until his death.
[3] They had no children together, but Dr Gregory had four children from his previous marriage:
(a)Arahi Charles Gregory (now aged 54 years);
(b)Kimi Marie Witty (who died recently aged 53 years)
(c)Mana Thor Gregory (now aged 48 years); and
(d)Tupu Arthur Gregory (now aged 40 years).
[4] Dr Gregory also had a daughter to another woman. Her name is Te Aho Durie, also known as Te Aho ō Te Rangi Te Maru. Despite an earlier belief that Te Aho had been adopted out, she remains Dr Gregory’s child. Dr Gregory considered her his daughter and Ms Pfaender has said that, in administering the estate if she is appointed trustee, she will treat Te Aho as Dr Gregory’s daughter.
[5] At the date of his death, Dr Gregory had an existing will dated 17 December 1970. It was executed while he was married to the mother of the children named in [3]. However, shortly before his death, he instructed his solicitor to prepare a new will. In the days leading up to his sudden death in hospital, Dr Gregory made several amendments but he died before the will was finalised and executed.
[6] Ms Pfaender applies for an order declaring the undated draft will and several amendments found in handwritten notes prepared subsequent to the drafting to be a valid will under s 14 of the Wills Act 2007. If necessary, she also applies for an order correcting the will to reflect the will maker’s instructions regarding who is to receive his bank accounts and life insurance policy. Additionally, she seeks an order that the estate bear the costs of, and incidental to, this application.
Procedural issues
[7] Affidavits of service have been filed confirming service on all of Dr Gregory’s children, as well as the New Zealand Guardian Trust Company Limited as executor under the 1970 will. The respective periods of 30 working days from the dates of service to file any opposition have passed. The application is accordingly unopposed.
[8] Dr Gregory’s daughter Kimi died unexpectedly, however, on 27 August 2017. Pursuant to r 4.52 of the High Court Rules 2016, Mr Scott Witty, her widower and the executor of her estate, can be substituted for Kimi, but there is an issue about service. Rule 4.52(3) provides that, unless the Court directs otherwise, any order that the proceeding be carried on between the continuing parties and the new party must be served on the new party. Kimi was served on 21 June 2017. She had not taken any steps by the expiration of the 30-working day period. Ms Pfaender suggests that, as Kimi’s executor was her husband, it can be inferred that he knew about the proceedings and has likewise chosen not to take steps.
[9] Dr Gregory died two years ago. On balance, I consider that service on Mr Witty would cause undue delay and that the Court should act on the matter as if Kimi was still alive; she had full knowledge of the issues raised by the proceeding and sufficient time to respond if she had had any concerns about Ms Pfaender’s proposals.
[10] I direct, therefore, that service on Mr Scott Witty under r 4.52 be dispensed with.
[11] There are no indications of any issues regarding Dr Gregory’s capacity at the relevant times. It appears that he was as mentally astute as ever; sadly, it was his body that was failing him.
Background facts
[12] In late August 2015, after feeling some discomfort, Dr Gregory went to see his general practitioner in Kaitaia. The GP conducted a blood test which determined that Dr Gregory had just suffered a heart attack. He was moved to Auckland Hospital where he received treatment with medication. In early September 2015, Dr Gregory was discharged from Auckland Hospital and he returned to Kaitaia with Ms Pfaender. On 24 October 2015, however, Dr Gregory was admitted to hospital for observation, where he remained until his sudden death just over two weeks later. During this time, Dr Gregory held several meetings and discussions about the contents of his will.
[13] On Sunday 25 October 2015, Dr Gregory told Ms Pfaender that he wanted to “get his house in order”. At his request, Ms Pfaender called Mr Robin Fountain, Dr Gregory’s solicitor. After Dr Gregory compiled a written list of things to consider, with Ms Pfaender’s assistance, Mr Fountain arrived and took instructions from Dr Gregory, of which there is an audio recording. This recording is in three parts, and it has been used to produce a written transcript.
[14] Mr Fountain then prepared a draft will. Under the draft will, Dr Gregory would have appointed three trustees: Ms Pfaender, and two of Dr Gregory’s children, Kimi and Tupu. Ms Pfaender says that, in other respects, the draft will did not follow precisely the oral will instructions that Dr Gregory gave to Mr Fountain on 25 October 2015. It also contained a number of spelling mistakes, including spelling Ms Pfaender’s name incorrectly.
[15] Ms Pfaender says that, following the meeting with Mr Fountain, Dr Gregory and she had a number of discussions regarding his plans for the family land (what he called his mother’s land). She handwrote some four pages of notes as he directed. Although she cannot date these notes precisely, the top of the second page is dated 26 October 2015. The inference is that the first page was either from 25 October, or that
26 October was the date on which all of the notes were made. In any event, they were created contemporaneously with Dr Gregory’s oral directions.
[16] On 26 October 2015, there was a conversation regarding family Māori land when Dr Gregory told Ms Pfaender that the offspring of his parents have shares in land at Muriwhenua, Parengarenga, and Tangonge. She says he indicated that he wanted this land to stay within the wider family – the descendants of his parents – and that any other land should go to his children equally. He mentioned another block of land at Te Kohanga. Part of this discussion on 26 October 2015 was also audio recorded.
[17] On 28 October 2015, Dr Gregory called a family meeting at the hospital. Mr Fountain was present, and he explained the concept of a whanau trust to everyone there. At least one member of each family branch of the descendants of Taingaehe Gregory and Vivian Lauder Gregory – Dr Gregory’s parents – were present. There is an audio recording of this discussion, of which there is a transcript.
[18] The most significant notes are those taken on 29 October 2015. Dr Gregory’s niece Christine Honetana-Payne and Ms Pfaender were present when Dr Gregory dictated amendments to the draft will. This conversation was recorded and there is a transcript. Christine Honetana-Payne took shorthand notes during the conversation. A few minutes later, she wrote out the notes in English, in her own words but giving effect to Dr Gregory’s stated intentions. Although the notes of the amendments were produced before Dr Gregory’s death, he did not sign them. Ms Honetaha-Payne has not sworn an affidavit regarding this material, apparently declining for family reasons.
[19] Two substantives changes to the draft will were made during the discussion on 29 October:
(a)Dr Gregory wanted to leave a property at 97 Okahu Road, Kaitaia (“the Okahu Road property”) to Ms Pfaender absolutely, in the expectation that she would be fair to his children and mokopuna in her will; and
(b)Dr Gregory wanted his mother’s land, being certificate of title NA/19D/477, to be transferred to a whanau trust in the name of Vivian
Lauder Gregory and Taingahehe Gregory (nee Te Maru) for the benefit of their descendants.
[20] Significantly, the audio recordings and transcripts record that Dr Gregory suggested that Ms Pfaender “becomes the trustee I suppose”. When he was asked about Kimi and Tupu, Dr Gregory said “No. No. They’re all excluded”. This provides the basis for Ms Pfaender’s proposal in her compiled version of what Dr Gregory’s will would look like if the oral amendments were incorporated; namely, that she would be sole trustee.
[21] Shortly after the conversation took place, but before Dr Gregory had the opportunity to sign Ms Honetana-Payne’s notes, Dr Gregory suddenly passed away.
[22] It also transpired that Dr Gregory had a life insurance policy. Ms Pfaender learned of its existence when, approximately a week before his death, Dr Gregory showed her paperwork from the insurance company for a payout of $135,000. When Dr Gregory asked what they should do with that money, she suggested that the money go to fixing the yards and fences on the Okahu Road property. Dr Gregory agreed with this on the basis that the money should go to the person receiving the Okahu Road property in order to tidy up the property, parts of which are in a poor state of repair. According to Ms Pfaender’s account, Dr Gregory made that decision before he directed on 29 October that he wished to leave the Okahu Road property to her.
[23] While Ms Pfaender mentioned the life insurance at one point on 25 October 2015 when Dr Gregory was giving will instructions to Mr Fountain, there was no actual discussion on the topic, nor any mention of it in any notes. Ms Pfaender questions whether, when Mr Fountain said “bank accounts and so on should be Gabriele’s” during those discussions, he was referring to the insurance policy among other things. Her evidence is that Dr Gregory murmured his assent. She attests that, in the final week of his life, Dr Gregory did not do or say anything to indicate that he had changed his earlier wish that the life insurance proceeds were go to the owner of the Okahu Road property to assist with maintenance.
[24] The present application has become necessary because Dr Gregory’s updated will is in draft form and does not correspond completely with the handwritten notes and the recorded instructions.
Jurisdiction
[25] The requirements for a valid will are prescribed by s 11 of the Wills Act 2007. It provides, so far as is relevant:
11 Requirements for validity of wills
(1)A will must be in writing.
(2)A will must be signed and witnessed as described in subsections (3) and (4).
(3)The will-maker must—
(a)sign the document; or
(b)direct another person to sign the document on his or her behalf in his or her presence.
(4)At least 2 witnesses must—
(a)be together in the will-maker’s presence when the will- maker—
(i)complies with subsection (3); or
(ii)acknowledges that—
(A)he or she signed the document earlier and that the signature on the document is his or her own; or
(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)each sign the document in the will-maker’s presence.
….
[26]Section 14 of the Act provides:
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.
[27] Accordingly, on being satisfied that a document appears to be a will but does not comply with the requirements for validity of s 11, and being satisfied that on the balance of probabilities the document expresses the deceased person’s testamentary intentions, this Court may make an order declaring the document to be a valid will. The discretion conferred by s 14 is of a residual nature. Where the Court is satisfied that the document in question represents the genuine intentions of the deceased, an order should be made to prevent the established wishes of the deceased being disregarded unless good reasons not to do so exist.1
[28] It is necessary to determine which of the materials available in this case are documents for the purposes of s 14(1). Section 6 of the Act defines “document” as “any material on which there is writing”. Section 29 of the Interpretation Act 1999 defines “writing” as “representing or reproducing words, figures, or symbols in a visible and tangible form or medium (for example, in print)”.
1 Balchin v Hall [2016] NZHC 837 at [11].
The documents said to form part of the will to be validated
[29] There is no doubt that the draft will, which begins “THIS IS THE LAST WILL AND TESTAMENT of me BRUCE CRAIG GREGORY of Kaitaia in New Zealand, Retired Medical Practitioner”, is a document that appears to be a will. It does not comply with s 11, however, because the document is not signed and witnessed in accordance with the requirements of the section. The scope of the will that is the subject of the present application for validity extends beyond the draft will. As a matter of law, several documents can collectively be validated as a will.2 The will Ms Pfaender seeks to be declared valid comprises the draft will and the notes of several proposed amendments which are based on audio recordings of which transcriptions have been produced. The issue is whether some of the material in question meets the threshold requirement of being “documents”.
[30] There is a distinction between the written notes taken of Dr Gregory’s oral instructions, and the audio recordings of those conversations and instructions. The recordings of Dr Gregory’s oral instructions are not a “document” in terms of the definition in s 6 of the Act, but the notes are documents in respect of which this Court can exercise its validation power.3 In Re Feron, the deceased gave instructions to her solicitor for a new will over the phone. A draft will was drawn up after the deceased’s death. Whata J held that the solicitor’s notes qualified as a document and, given that they met the other requirements of s 14, declared those notes to be the deceased’s will.4 In doing so, Whata J adopted a robust approach, to recognise “the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person. Section 14(2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person's intention. The section is concerned with substance not form”.5 The notes formed a skeleton for a will when taken together with an email. Whata J added that the weaker the documentation, the stronger the evidence will need to be that the documents represent the intentions of the deceased.6
2 Winterburn v Wilson [2016] NZHC 1422; Re Kronfeld [2013] NZHC 1810.
3 Re Feron [2012] NZHC 44, [2012] 2 NZLR 551.
4 At [15].
5 At [11].
6 At [19].
[31] Here, the evidential weight of the documentation is greater than in Re Feron given the existence of the draft will, which is supplemented and amended by the notes. There is no conflict between the notes and the recordings of Dr Gregory’s oral instructions. While the recordings of the exchanges with Dr Gregory on 28 and 29 October are not “documents”, there is no doubt they provide reliable evidence of his intentions. A question arises, therefore, about whether the transcripts of the recordings, made after Dr Gregory’s death, are documents which might form part of a will which can be validated under the Act.
[32] Adopting a purposive approach, I see no reason why that should not be the case. It seems likely that the drafters of the Wills Act considered that the definition of “a document” should be confined to written records, consistently with the requirement in s 11(1) of the Act that wills must be in writing. It is likely also that they considered that the interests of certainty are better served by such a requirement than the adoption of a broader definition of “document”, such as appears in the Evidence Act 2006.7
[33] The widespread use of smartphones and other handheld personal devices, by which users can easily record and store the spoken word and other sounds as well as still and moving images, means that it is becoming increasingly commonplace for persons engaged in important conversations to use such devices to record the exchanges between the participants for future reference. While the recording of the exchange cannot qualify under the Wills Act as a document, an accurate transcript of the recording, supplemented by evidence verifying the will maker as the speaker or a participant in the exchange, meets the s 6 definition of document as “material on which there is writing”. Moreover, it provides evidence of the will maker’s intentions which is even more reliable and compelling than a contemporaneous note taken by an observer.
[34] In Re Feron, Whata J held that the draft will prepared after the death of the will-maker, on the basis of pre-death instructions to the solicitor, could not be a document capable of validation under s 14.8 In my respectful view, however, there is nothing in the text or purpose of the Act precluding a finding in appropriate
7 Evidence Act 2006, s 4.
8 Re Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [13].
circumstances, that a document brought into existence after the death of the will-maker is capable of being validated as a will, so long as it may be held on the evidence that it reflects the will-maker’s intentions. In any event, if I am wrong about that, the accurate transcripts of the audio recording provide powerful evidence of intention which may be relied upon, if necessary, to make a correction of the will under s 31.9
[35] I am satisfied as a matter of law that the draft will; the contemporaneous notes of the exchanges on 28 and 29 October 2015; and the verified transcripts of those recorded exchanges can be taken as documents forming a valid will. In combination, they provide evidence of Dr Gregory’s testamentary intentions.
The content of the valid will
[36] Where the intention of the testator is readily discernible, s 14 operates to ensure that that intention is not to be defeated by defects in form. As Asher J said in Re Wong:10
The great benefit of the reform in s 14 is that it takes the eye of the Court away from form and makes it focus on substance and intention. A person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities. The Court should give effect to the intention of the person who purported to make a will. However, it must be clear on the balance of probabilities that the document is intended to express the deceased person's testamentary intentions.
[37] This Court has the power to use s 14 to take the draft will with the amendments in note form to give effect to the will maker’s testamentary intentions.
[38] I note that the original intention appears to have been to give Ms Pfaender a life interest in the Okahu Road property and for the property to be placed in a whanau trust upon her death. But it appears that, as reflected in the notes and transcript of the 29 October 2015 discussions, Dr Gregory’s intention regarding the Okahu Road property evolved into one that Ms Pfaender should receive it outright. Dr Gregory said he wanted to amend the will to leave the property to Ms Pfaender absolutely, in the expectation that she would be fair to his children and mokopuna in her will. She
9 Discussed more fully at [46] - [52] below.
10 Re Wong [2014] NZHC 2554 at [24].
says that he trusted her to do the right thing by them, and that she will do so. By necessary implication, that change of view meant that the placement of the land in a whanau trust after Ms Pfaender’s death could not occur through a provision to that effect in Dr Gregory’s will. To achieve that end Ms Pfaender would need to make an appropriate provision in her will.
[39] Another important change, recorded in the notes of the discussion on 29 October was that Dr Gregory wanted his mother’s land, being certificate of title NA/64D/777, to be transferred to a whanau trust in the name of Vivian Lauder Gregory and Taingahehe Gregory (nee Te Maru) for the benefit of their descendants.
[40] The transcript of the discussions on 29 October 2015 records that Dr Gregory was asked about the appointment of trustees. In the draft will, Ms Pfaender, Kimi, and Dr Gregory’s son Tupu, were to be appointed as executors and trustees of the will. In a discussion on 28 October 2015, however, Dr Gregory had made it clear that clause 2 of the draft will, in which the trustee appointment was made, was to be deleted. I have recorded Dr Gregory’s revised views at [20].
[41]In her notes of the 29 October discussion, Ms Honetaha-Payn wrote:
Delete Clause 2.
[42] The note does not go on to record the appointment of Ms Pfaender as sole executor and trustee but the recording and the transcript of it establish that intention. Having held that the transcript of the oral discussion qualifies as a document under s 6 of the Act, I am satisfied it operates as an effective variation to the instructions recorded in the draft will.
[43] Ms Pfaender says the validated will should have included a bequest of Dr Gregory’s bank accounts to her; there is no reference to the bank accounts in the draft will, however. The notes of 25 October record that Dr Gregory wanted “all of my personal effects to be transferred to [Ms Pfaender] on my death to be in her complete control”, but the ordinary meaning of “personal effects” would not usually include bank accounts. But the following exchange was recorded (and transcribed) during the discussion on 25 October 2015 between Mr Fountain and Dr Gregory:
MrFountain: … and all your personal stuff like motor cars, bank accounts and so on should be Gabriele’s.
Dr Gregory: Hmm mmm (Emphasis added)
[44] I am satisfied that Mr Fountain inadvertently overlooked the express instruction concerning the bank accounts when subsequently drafting the will. The transcribed bequest of the bank accounts to Ms Pfaender, therefore, may be regarded as part of the documents forming the validated will.
[45] Analysing the draft will in conjunction with the subsequent documents recording intended amendments, I am satisfied that Dr Gregory’s testamentary intentions can be readily ascertained. It is clear he was intent on getting his “affairs in order”, with references in the conversations and notes to an obituary, will, and funeral arrangements. It is unfortunate that, after considering the draft will and deciding on certain amendments, Dr Gregory did not get to execute a valid will formally incorporating his wishes before his death.
[46] Accordingly, the draft will and the documents containing the four amendments identified in the notes and the transcripts discussed above, are declared to be Dr Gregory’s valid will. The Court cannot validate the composite will document which Ms Pfaender has provided – essentially a compilation of the draft will and the notes and recordings – because that represents only Ms Pfaender’s submitted opinion, prepared after his death, of what Dr Gregory intended. It is not admissible evidence.11 What Dr Gregory intended is a matter for determination by the Court.
[47] At the end of this judgment I summarise the provisions of the validated will. Before doing so, however, it is necessary to address Ms Pfaender’s submissions that the validated will requires correction to reflect Dr Gregory’s testamentary intentions regarding matters not covered by the documents.
11 Evidence Act, s 23.
Correction of the will
[48] Ms Pfaender has identified that the draft will has several spelling mistakes; that it omits some matters on which Dr Gregory gave express instructions (notably the bank accounts); and that the written material fails to address expressly Dr Gregory’s life insurance policy. Because no reference is made to a life insurance policy in the available written material, provision for the disposition of its proceeds cannot form part of the will that is to be validated by reference to the documents.
[49] Proceeding on the basis that the valid will comprises a combination of the draft will, the notes and the transcripts, the way in which Dr Gregory’s proved intentions regarding the life insurance policy could be accommodated is through a correction to the will. Section 31 of the Act provides the power to correct a will where as a result of a clerical error or failure to give effect to the will-maker’s instructions, a will does not carry out the will-maker’s intentions:
31 Correction
(1)This section applies when the High Court is satisfied that a will does not carry out the will-maker’s intentions because it—
(a)contains a clerical error; or
(b)does not give effect to the will-maker’s instructions.
(2)The court may make an order correcting the will to carry out the will- maker’s intentions.
[50] I am satisfied that the spelling mistakes constitute clerical errors which can be rectified without difficulty. In order to correct the absence of disposition of the life insurance proceeds in the will, the Court must be satisfied that the will does not give effect to Dr Gregory’s intentions and that correcting the wording of the will to include these matters would do so.
[51] The life insurance policy is not mentioned in any of the notes, nor in the audio recordings. The evidence of its existence as an asset of the estate and Dr Gregory’s intentions concerning it is found in Ms Pfaender’s affidavit. That evidence, which is not challenged, is to the effect that Dr Gregory intended that the proceeds of the life insurance policy should go to the recipient of the Okahu Road property in order to pay
for its maintenance and upkeep. On the evidence of the notes and recordings, the decision that Ms Pfaender should receive the Okahu Road property was made after the decision that the life insurance funds should go to the owner. In the absence of any evidence to the contrary, I am satisfied that the evidence is plausible and should be taken at face value. It is appropriate to correct the validated will by adding a specific bequest of the proceeds of the life insurance property to Ms Pfaender.
[52] There is a final matter. Dr Gregory confirmed on 25 October 2015 that his late sister Enid was dead and he instructed Mr Fountain that he wanted what would otherwise have been her share in land, known as Murimotu number 2, to go to her descendants. The provision in the draft will does not accurately reflect that instruction, providing instead that the land was to go to Enid and her sister Ataroa if they survived Dr Gregory and otherwise to their children. I am satisfied that the will should be corrected by bequeathing the shares to Ataroa (as to half) and Enid’s children (as to half) as joint tenants per stirpes. I also record the expression of Dr Gregory’s wish that Ataroa and Enid’s children should discuss whether this land might be transferred to a whanau trust for the descendants of Vivian Lauder Gregory and Taingahehe Gregory (nee Te Maru).
The effect of the validation and the corrections
[53] To summarise, the effect of the validation, with the corrections necessary to include disposition of the life insurance proceeds in accordance with Dr Gregory’s proved intentions, is to validate a will which provides as follows:
(a)All of Dr Gregory’s former wills and testamentary dispositions are revoked;
(b)Gabriele Eveline Pfaender shall be the sole executor and trustee of the will;
(c)Gabriele Eveline Pfaender is bequeathed absolutely –
(i)all of Dr Gregory’s personal effects, including the furniture, furnishings, plates, plated goods, linen, glass, personal artwork, china, books (except books of account or historical records), and motor cars;
(ii)the sums held in Dr Gregory’s bank accounts;
(iii)the proceeds of Dr Gregory’s life insurance policy; and
(iv)the property at 97 Okahu Road, Kaitaia.
(d)The shares in Murimotu number 2 are bequeathed to Dr Gregory’s sister Ataroa (as to one half) and the children of his late sister Enid (as to one half) as joint tenants per stirpes.
(e)The land in certificate of title NA19D/477 being the land at Kaitaia- Awaroa Road registered in Dr Gregory’s name which he held as administrator shall be held in trust by the estate’s trustee to hold the same until such time as an application has been made to the Maori Land Court to set up a whanau trust for the descendants of Vivian Lauder Gregory and Taingahe Gregory (nee Te Maru) and then to transfer the same to the trustees of the whanau trust.
(f)Any other shares in Maori land together with any historical records and all taonga not otherwise disposed of by the will are to be held in trust by the estate’s trustee to hold the same until such time as an application has been made to the Maori Land Court to set up a whanau trust for the descendants of Vivian Lauder Gregory and Taingahe Gregory (nee Te Maru) and then to transfer the same to the trustees of the whanau trust.
(g)The residue of the estate is to be divided equally between: Arahi Charles Gregory, the estate of Kimi Marie Witty, Mana Thor Gregory, and Tupu Arthur Gregory.
(h)The trustee is to have all the authorities and discretions set out under clause 4 of the draft will.
Result/orders
[54]The following orders are made:
(a)The draft will and the amendments included in the notes and transcripts of the discussions on 28 and 29 October 2015 are declared to be a valid will, with the effect set out at [53].
(b)The costs of and incidental to this application are to be paid out of the estate.
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Toogood J
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