Pfaender v Gregory - [2018] NZHC 161

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…

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 Pfaender v Gregory

Details

AGLC: Pfaender v Gregory [2018] NZHC 161
Case: [2018] NZHC 161
Decision Date: 16 February 2018

CaseChat Overview and Summary

In Pfaender v Gregory, the High Court of New Zealand was asked to validate an incomplete will and to correct it. Dr. Bruce Craig Gregory, who died in October 2015, had been working with his solicitor to draft a new will. However, he passed away before the will was finalised and signed. The applicant, Gabriele Eveline Pfaender, Dr. Gregory's long-term de facto partner, applied for the court to declare the incomplete will and handwritten notes containing Dr. Gregory's instructions to be a valid will. The court had to decide whether the materials available were documents that could be validated as a will, and if so, what Dr. Gregory's testamentary intentions were.

The court found that the draft will, handwritten notes, and transcripts of audio recordings of Dr. Gregory's instructions could be considered documents for the purpose of validating a will. The court validated the will based on the evidence of Dr. Gregory's testamentary intentions found in these documents. The court also made corrections to the will to reflect Dr. Gregory's intentions concerning his bank accounts, life insurance policy, and a specific piece of land.

The final validated will provided that Gabriele Eveline Pfaender would be the sole executor and trustee. She was bequeathed certain personal effects, the sums in Dr. Gregory's bank accounts, the proceeds of his life insurance policy, and a property at 97 Okahu Road, Kaitaia. Other assets were distributed among Dr. Gregory's children and other family members, with some land to be held in trust for the descendants of Vivian Lauder Gregory and Taingahehe Gregory (nee Te Maru). The court also ordered that the costs of the application be paid out of the estate.

Orders