Re Estate of Brett Parker

[2017] NZHC 415

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-950 [2017] NZHC 415

IN THE MATTER	of the Wills Act 2007
AND
IN THE MATTER OF	AN APPLICATION BY IAN STEWART AVISON FOR AN ORDER THAT THE WILL OF MICHAEL BRETT PARKER BE DECLARED VALID

Hearing:	On the papers
Counsel:	B J J Sheehan for Applicant
Judgment:	13 March 2017

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 13 March 2017 at 10am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

ARL Lawyers, Lower Hutt

Will of Michael Brett Parker [2017] NZHC 415 [13 March 2017]

Introduction

[1]      The deceased, Michael Brett Parker (Mr Parker), died on 17 March 2016. Mr Parker had a valid will dated 7 August 2006. On 24 February 2016, Mr Parker met with his solicitor, Mr Paul Logan, and gave him instructions for the preparation of a new will. Mr Logan recorded Mr Parker’s verbal instructions in a handwritten file note (the file note). Mr Parker died before his new will was prepared.

[2]      The  applicant  Mr  Ian Avison,  Mr  Logan’s  partner  in  the  law  firm ARL Lawyers who were Mr Parker’s solicitors, makes an application to have the file note declared a valid will pursuant to s 14 of the Wills Act 2007. The application is consented to by Mr Parker’s de facto partner and both of Mr Parker’s sons.

Background

[3]      Mr Parker is survived by his two sons, Brett Dayna Parker-Western and Cheye Vance Parker. Mr Parker was unmarried at the time of his death, but had been living in a de facto relationship with his partner, Terrie Huege de Serville for approximately nine years,.

[4]      Mr Parker was formerly married to Renuka Mohini Parker, who is Cheye’s mother.    Their  marriage  was  dissolved  on  30 April  2010.  Mr  Parker  was  also survived by two grand-children, Brett’s sons Lucas and Zack, who are   now approximately four years old and two years old, respectively.

[5]      Mr Parker’s estate’s assets comprise: Kiwisaver and ANZ accounts totalling approximately $33,596; a debt of $197,946 owed to the estate by the MB Parker Family Trust (the Family Trust); one half-share in Mr Parker’s late mother’s estate, valued at approximately $210,000; personal chattels and a small amount of gold of unknown value; a Holden vehicle valued at approximately $28,000; and three boats of  minimal  value.  Mr  Parker  also  held  an ANZ term  deposit  of  approximately

$224,000 in his name.

[6]      The  estate’s  liabilities  comprise:  funeral  expenses  and  printing  costs  of

$2,589.64; terminal tax of $22.14; future taxation costs; and costs of administration

of the estate. Funeral costs of $4,557 owed to Ninness Funeral Home have been paid

by way of advance from Mr Parker’s mother’s estate.

The ANZ term deposit

[7]      An affidavit in support of the application has been filed by Ms Rebecca Dickie who is also a partner of the law firm ARL Lawyers. Ms Dickie is a director of ARL Parker Trust Limited (the trustee company), which is the sole trustee of the Family Trust. The other directors of the company are the applicant Mr Avison, and Mr Logan.   Ms Dickie on behalf of the Family Trust consents to the application. In her affidavit she sets out a list of the Family Trust assets, which includes an ANZ term deposit of $224,010.31. She says although the term deposit was held by the deceased in his own name, it was held by him for and on behalf of the Family Trust. In her affidavit Ms Dickie explains how the ANZ term deposit became the property of the Family Trust, when the Family Trust purchased Mr Parker’s superannuation entitlement and executed an acknowledgement of debt. Thereafter, Mr Parker instructed the Trust’s accountants to prepare financial statements and tax returns for the Family Trust on the basis that the ANZ term deposit was an asset owned by the Family Trust. In accordance with the Family Trust’s ownership of the ANZ term deposit, interest received on the term deposit was recorded as an asset of the Trust and accounted for in the Family Trust’s tax returns. Ms Dickie further explains that, while it was clearly the intention of Mr Parker and the Family Trust that the ANZ deposit belong to the Family Trust, Mr Parker had omitted to arrange for the deposit to be changed from his personal name.

[8]      Ms Dickie says that, for the reasons she has described, the trustee company maintains that the ANZ term deposit is an asset belonging to the Family Trust. She says the current value of the deposit is $224,010.31. The debt owed back to Mr Parker’s estate relates specifically to Mr Parker’s superannuation payment.

The Family Trust

[9]      The Family Trust is a discretionary trust established by Mr Parker and his then wife, Renuka Parker, in 2006. Mr Parker and Renuka Parker were originally named as the primary beneficiaries. Following their separation in 2008, a Deed of

Variation to the Trust Deed was completed to change the name of the Trust and remove Renuka Parker as a beneficiary. Ms Dickie in her affidavit explains that the then trustees of the Family Trust overlooked a provision of the Trust deed which prevented the power of amendment to be used to alter the definition of the classes of beneficiaries. Consequently the present trustees have treated the Deed of Variation as having no effect so far as it purports to provide for the removal of Renuka Parker as a beneficiary.

[10]     Accordingly, the discretionary beneficiaries of the Family Trust are:  Renuka Parker, Brett, Cheye, any grandchildren of Mr Parker, any trust or superannuation scheme of which the beneficiaries are beneficiaries, and any charitable purpose or institution determined by the trustees. Further beneficiaries may be appointed by the trustees.

[11]     Ms  Dickie  further  explains  in  her  affidavit  that  the  Family  Trust  deed provides for the trustees to declare in writing that a beneficiary is to be excluded as a beneficiary for such period as the trustees may determine. Ms Dickie says that Renuka Parker gave her consent to being removed as a beneficiary following her separation from Mr Parker and at the time the couple divided their relationship property. It appears that the Deed of Variation of the Family Trust was a consequence of  the  relationship  property  division,  and  was  intended  to  result  in  Mr  Parker retaining the beneficial interest in the Family Trust, while Renuka Parker retained the shares in the companies that had been established by the couple.

[12]     The assets of the Family Trust are: a Porirua property with a market value of approximately $340,000 which is currently occupied by Cheye and Terrie Huege de Serville; a marina berth with a likely resale value  of approximately $58,000; a boatshed   with   an   estimated   value  of  $90,000;   Kiwibank   accounts   totalling

$5,614.39; and the ANZ term deposit of $224,010.

The 2006 will

[13]     Pursuant to s 19(4)(b) of the Wills Act 2007, Mr Parker’s 2006 will is to be read as if Renuka Parker died immediately before Mr Parker. The 2006 will appoints Rina Mohini Shay and Vina Mohini Shay as executors, and directs that the whole of

Mr Parker’s estate is to pass to the Family Trust. If the file note made by Mr Logan is not declared to be a valid will, the 2006 will, will be Mr Parker’s last will and I expect that it will be the basis of an application for a grant of probate.

The file note

[14]     As I have said, Mr Logan was Mr Parker’s solicitor and he had acted for him from around 2001, including in relation to his 2006 will, and for Mr Parker and his former wife in relation to the establishment of the Family Trust. Prior to Mr Parker’s death on 17 March 2016, Mr Logan was, together with Mr Parker, a trustee  of the Family  Trust.  Following  Mr  Parker’s  death,  Mr  Logan  retired  as  trustee  to  be replaced by ARL Parker Trust Limited as the sole trustee.

[15]     Mr Logan  met with Mr Parker at his request on 24 February 2016 to discuss making a new will and matters relating to the Family Trust. In his affidavit filed in support of the present application, Mr Logan describes how Mr Parker instructed him that he wished to revoke his 2006 will and, in particular, wished to ensure that his partner, Terrie Huege de Serville, could remain in the home at Mana Esplanade Porirua, following his death. The Mana Esplanade property is owned by the Family Trust. Subject to that wish, he intended and wished to divide his estate and the assets of the Family Trust equally between Terrie and his two sons.

[16]     Mr Logan says that during his meeting with him, Mr Parker was uncertain as to what other assets were held by the Family Trust, and thought it possible that the boat shed and marina berth were owned by him personally. He asked Mr Logan to check the position as regards those assets following the meeting and before proceeding to draft his new will.

[17]     Mr Logan says that, during his meeting with Mr Parker on 24 February 2016, he made a file note and recorded the instructions he was given regarding the contents of a new will. A copy of the hand-written file note is annexed to Mr Logan’s affidavit as an exhibit. It is legible and states:1

Trust

Partner Terrie Huge Huege de Serville

(9 years)

2 years in property then 3 way

Split

1 part for Terrie

1 part for Cheye Vance P. (31 17)

1 part for Brett Dayna Parker-Weston (31)

Boat Shed & Berth to Trust? Residue 3 way split

g/o grandchildren

Appointor – Mick to advise EPA – To be advised Trustees PGL & ISA

[18]     Mr Logan in his affidavit describes the file note as his “shorthand” record of Mr Parker’s testamentary instructions, and that it reflects the instructions that Mr Parker gave him to enable him to draft a will that would provide:

(a)      Mr Logan and Ian Stewart Avison to be appointed as his executors and trustees;

(b)Terrie Huege de Serville to be provided with a right to live in the Mana Esplanade property owned by the Family Trust for a period of two years following Mr Parker’s death, on the basis that she pay all outgoings and keep the property maintained;

(c)       two years after the Mr Parker’s death, the Mana Esplanade property to

be divided equally among Terrie, Cheye, and Brett;2

(d)the boat shed and marina berth to be given to the Family Trust (if not already owned by the Trust); and

(e)      the residue of the estate to be divided equally among Terrie, Cheye, and Brett.  If either Cheye or Brett had died prior to Mr Parker and left children surviving them, their share was to go to those children.

[19]     Mr Logan further says that the Family Trust deed provides that Mr Parker had a right to appoint and remove trustees during his lifetime and could exercise that power by the terms and provisions of his will. Mr Logan says that it is his practice to include such a provision in a person’s will, even though it has no effect in terms of the disposition of the testator’s property. Mr Logan says that as Mr Parker had not decided who he wished to name as “appointor” for the Family Trust in his place, it was left on the basis that he would advise Mr Logan when he had made a decision. He was also going to decide who should be his attorney, so that Mr Logan could draft enduring powers of attorney for him to sign.

[20]     Mr Logan says that it is not his practice to exhaustively include in his file notes all the clauses which he regards as being standard for a will. He says that, in this case, although it is his usual practice to include a provision in a will providing for any debt owed by a family trust to be forgiven, that topic was not discussed between him and Mr Parker during their meeting. Mr Logan notes, however, that a provision to that effect had been included in Mr Parker’s 2006 will, and says that it was his intention to include a similar provision when drafting the new will. Notwithstanding Mr Logan’s general practice and his intention as regards this matter, his file note makes no reference to a provision in the will to forgive any debt owed by the Family Trust to Mr Parker at the date of his death.

[21]     Mr Logan has explained in his affidavit that although he knew at the time of his meeting with Mr Parker that he was undergoing chemotherapy for cancer, he did not appreciate just how seriously ill he was. He says that while Mr Parker appeared to be in poor health, he gave no indication that he was at risk of dying within the following month.

[22]     Mr Parker died on 17 March 2016, without contacting or communicating with Mr Logan to instruct him who he wished to be his appointor for the Family Trust or his attorney for the proposed enduring power of attorney. Because Mr Logan was awaiting those further instructions, by the date of Mr Parker’s death he had not yet taken any steps to draft the will.  Mr Logan says that he has no reason to believe that  Mr  Parker’s  testamentary  intentions  changed  between  the  meeting  on  24

February 2016 and his death and he says he believes that his file note expresses Mr Parker’s testamentary intentions.  In the event that the current application is granted and the file note declared by the Court to be a valid will, Mr Logan says he will join Mr Avison in an  application for probate.

Analysis

[23]     Section  14  of  the  Wills Act  2007  enables  the  High  Court  to  declare  a document to be a valid will: if it appears to be a will; does not comply with the requirements of s 11 of the Act; and came into existence either in or out of New Zealand. A document is defined in the Act as being “any material on which there is writing”.3

[24]     Pursuant to s 8(1), a will is a document which:

(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.

[25]     The  Court  may  make  a  declaration  if  it  is  satisfied  that  the  document

expresses   the   deceased’s   testamentary  intentions.   When   deciding   whether   a document should be declared to be a valid will the Court may consider:4

3      Wills Act 2007, s 6.

4      Wills Act 2007, s 14(3).

(a)       the document; and

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

(c)       evidence of the deceased person’s testamentary intentions; and

(d)      evidence of statements made by the deceased.

[26]     Quite clearly Mr Logan’s file note is a “document” for the purposes of the Act. I find that the file note also appears to be a will as it disposes of property to which Mr Parker was entitled on his death, and also disposes of property to which his personal representatives would become entitled on his death. Furthermore the file note identifies those persons who he wished to appoint to act as personal representatives as regards his estate. The file note does not comply with the requirements of s 11 as it is not signed by the testator or witnessed in accordance with the prescriptive requirements of that section.

[27]     Although Mr Parker did not himself write the file note, nevertheless a file note  made  by  a  solicitor  recording  a  testator’s  instructions  and  testamentary intentions has previously been treated as having been “made” by the testator for the purposes of the definition of a will in s 8(1).

[28]     In Re Estate of Feron the deceased gave verbal instructions to her solicitor to update her will.5 The solicitor made handwritten notes of the instructions. A few days later the deceased sent an email to the solicitor with instructions on several further matters she wanted to be included in her will including specific bequests, a message to her family and friends, and details for her funeral.

[29]     Whata J held that while the solicitor’s notes required a reader to fill in gaps to make  sense  of  the  words  used,  they  were  self  explanatory,  and  the  testator’s intentions were sufficiently clear.   Together the notes and the testator’s email provided, at least, the “skeleton of a will”.6  Whata J said that “…the weaker the documentation,  the  stronger  the  evidence  will  need  to  be  that  the  documents represent the intentions of the deceased”.7   Whata J also noted that the Court had the

benefit of direct testimony from the deceased’s solicitor who had transcribed the

5      Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551.

6 At [18].

7 At [19].

notes, and was satisfied that the notes and the email taken together expressed the testamentary intentions of the deceased.

[30]     In Re Taigel the proposed will was also a solicitor’s file note of instructions for a will.8 The deceased, Mr Taigel, had lung cancer for approximately 15 months before his death in November 2012. During that time, he told his mother that he had made a will with Mr Montague of the law firm Gibson Sheat. Mr Montague had died in 2009, and when Mr Taigel wrote to the firm requesting a meeting to review his will, he was told that the firm had no record of him making a will.   Mr Taigel

appeared to be unconcerned by this information and assumed that his will would be located in due course when it was needed.  A file note was later discovered which had been made by Mr Montague on 13 February 2006 and which contained instructions for Mr Taigel’s will. The instructions were in a similar form to the file note made by Mr Logan in the present case. Mr Taigel had also made statements to his mother and daughter regarding his testamentary intentions which were consistent with  what  was  recorded  in  Mr  Montague’s  file  note.  Dobson  J  allowed  the

application but emphasised the situation was rare:9

The memorandum in support of the application has not cited any cases in which a document so far removed from a completed will has been validated. Each such application will turn on its own facts, but research suggests none have gone so far as to validate a solicitor’s file note of instructions taken at what is a relatively early stage in the process of completing a will.

Section 14(3) authorises a wider enquiry than the analysis of the form and content of the document.  Paragraphs (c) and (d) of subs (3) enable the Court to consider evidence of the deceased person’s testamentary intentions and statements made by the deceased person.   Those necessarily contemplate sources extraneous to the document itself.   Here, there is relatively strong evidence that Mr Taigel intended the instructions given to Mr Montague to represent his testamentary wishes, and that he intended to leave his estate (or at least the proceeds of the insurance policy which comprised by far the largest asset in the estate) to his adult children, subject to their attaining 25.

I  am  mindful  that  the  version   of   Mr Taigel’s   statements  about  his testamentary wishes to his mother and his daughter have not been tested in any way.  Notwithstanding that, they represent strong evidence in support of the application for validation.

The question therefore is whether the extraneous evidence justifies the adoption of a liberal approach to whether Mr Montague’s file note can be

8      Re Taigel [2014] NZHC 844.

9      At [25] - [28].

treated as a document made by Mr Taigel, and further whether it can be treated as having the appearance of a will.  I consider that in the particular circumstances of this case, those other considerations do outweigh the apparent deficiencies of the file note to qualify as a will.  There is little point in emphasising how exceptional the remainder of the circumstances have to be before something as removed from a will as the solicitor’s file note here is can qualify for validation.  Such occasions ought indeed to be rare, but the combination of circumstances here reflect the statutory purpose of validating an otherwise inadequate record, however unusual they are.

[31]     In Re Kirner, Nicholas Davidson J held:10

[22] It appears from a review of the authorities that a robust approach to such applications has been taken. While the s14 power is both broad and remedial in purpose, the adoption of a robust approach still requires this Court to carefully consider whether the evidence put before it, considered in aggregate, is such that it can be satisfied that the document put before it, said to be a Will, does actually reflect the testamentary intentions of the deceased.

[32]     In this case, I consider that the affidavit of Mr Logan provides clear and reliable evidence that the contents of the file note he made represents Mr Parker’s testamentary intentions. Although the notes require the reader to fill in some gaps by interpreting Mr Logan’s use of “shorthand” in places, the file note can nonetheless be understood even without reference to Mr Logan’s explanation.

[33]     However, I do not consider that s 14 empowers or enables the Court to insert clauses into the document which, although intended to be included in a will by Mr Logan, were not referred to in the written document. While the power conferred by s

14 is broad and enables the Court to adopt a robust approach to giving effect to testamentary intentions as expressed in a document, the remedial power is limited to the application of the terms of the document, and cannot extend to giving effect to undocumented intentions.  In this  case,  it appears that  while it  was  Mr Logan’s intention to include a provision by which Mr Parker would forgive the debt owed to him by the Family Trust, that topic was not the subject of direct discussion, and it was certainly not mentioned or referred to in the file note.

[34]     In the circumstances of this case, I find there is no jurisdiction to insert Mr

Logan’s “standard clause” to provide that the debt owed to the estate by the Family

10     Re Kirner [2015] NZHC1873 at [22].

Trust is forgiven. That is not contained or referred to in the file note document, and there is no testamentary intention expressed to that effect.

[35]     Similarly, I do not consider that the words “on the basis that she pay all outgoings and keep the property maintained” can be added to and applied as a condition to the provision by which Terrie Huege de Serville is to be given a right to live in the Mana Esplanade property owned by the Family Trust for a period of two years following Mr Parker’s death. The words of the file note make no reference to anything more than Ms de Serville being given a right to live in the property for two years, and there is no evidence to suggest or establish that in expressing his testamentary intention, Mr Parker stipulated that Ms de Serville was to be required to pay all outgoings and maintenance on the property. It may be that arrangements of that kind are put in place by agreement between Ms de Serville and the Family Trust, but that is not a matter that can form part of a validated will on the basis of the terms of Mr Logan’s file note.

[36]     The  circumstances  of  this  case  are  an  example  of  what  must  be  an exceptional situation where a solicitor’s file note on its own is validated as a will. In granting this application, I have regard to both the contents of the document, and to Mr Logan’s evidence as to the circumstances in which it was created to record Mr Parker’s  instructions.  However,  in  validating  the  solicitor’s  file  note  as  a  will pursuant to the Act, I specifically limit the validation to the actual written provisions of the file note, and consequently exclude Mr Logan’s “standard” provision which would operate to forgive the debt owed by the Family Trust to Mr Parker’s estate. In the end it may not result in a significant difference so far as the beneficiaries of the estate and Family Trust are concerned, as in each case it appears that the executors of the validated will and the trustee of the Family Trust, are intending to act in a manner that is consistent and will result in equal distribution between the common beneficiaries of both the will and the Family Trust.

Conclusion

[37]     For these reasons, I am satisfied that the requirements of s 14 of the Act are met and the file note should be validated as the will of Michael Brett Parker, who

died at Wellington on 17 March 2016.

[38]     I make an order under s 14(2) of the Act declaring the file note to be the valid will of the deceased, Mr Parker.

[39]     I declare the following terms to be the last will of the deceased, Michael Brett

Parker:

(a)       Any previous wills or testamentary dispositions are revoked;

(b)Ian Stewart Avison and Paul Gregory Logan are to be trustees and executors of the will.

(c)      Terrie Heuge de Serville is to have the right to reside in the house owned by the M B Parker Family Trust situated at 98 Mana Esplanade Porirua, for a period of two years from the date of Mr Parker’s death.

(d)At the expiration of Ms de Serville’s two year period of occupancy of the Mana Esplanade house, the ownership of the property is to be divided  equally  between:  Terrie  Heuge  de  Serville;  Brett  Dayna Parker-Western; and Cheyne Vance Parker.11

(e)      The residue of the estate is to be divided equally between: Terrie Heuge de Serville; Brett Dayna Parker-Western; and Cheyne Vance Parker, provided that should either Brett or Cheyne have died before

Mr Parker their share of the estate to go to their children.12

Paul Davison  J

11     While the Mana Esplanade house belongs to the MB Parker Family Trust and is not an asset of the estate, this remains an expression of Mr Parker’s testamentary wishes, and will inform but not bind the trustee of the Family Trust in dealing with the property.

12     The gift over provision is obviously of no effect as both Brett and Cheye survived their father.