Re Taigel - [2014] NZHC 844

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-372 [2014] NZHC 844

UNDER the Wills Act 2007

IN THE MATTER OF

an application by JODIE LEILA TAIGEL for an order that the will of BRENT DARREL TAIGEL be declared valid

On papers

Judgment:

29 April 2014

JUDGMENT OF DOBSON J

[1] This proceeding comprises an originating application for an order declaring a solicitor’s file note of apparent instructions for a will for the deceased (Mr Taigel) as constituting a valid will under s 14 of the Wills Act 2007. In a minute issued on
17 February 2014, I granted leave for the proceeding to be pursued by way of originating application. I also sought further information from the applicant, to enable a fuller consideration of the relevant issues. In the absence of a challenge to the application, I have decided that putting the applicant to the expense of a hearing is not warranted.

[2] The terms of s 14 of the Wills Act 2007 are 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.

In re Taigel [2014] NZHC 844 [29 April 2014]

(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.

[3] Section 14 is to be read in light of the definition of a will in s 8, the material parts of which are 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.

Factual background

[4] Mr Taigel is described as a serviceman, previously living in Lower Hutt. He died on 28 November 2012. He is survived by his mother (Mrs Taigel) and two adult children, the applicant (Jodie) and her brother, Jesse, both of whom reside in Australia.

[5] For some time prior to his death, Mr Taigel had a de facto relationship with Maree Dickson (Ms Dickson), the nature and duration of which may be the subject of subsequent dispute. Mr Taigel’s marriage to the mother of his children was dissolved some time prior to his death.

[6] On 13 February 2006, Mr Taigel attended on his then solicitor, Mr Martin

Montague, who was a partner in the Lower Hutt firm of Gibson Sheat at the time.

[7]…

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 Re Taigel

Details

AGLC: Re Taigel [2014] NZHC 844
Case: [2014] NZHC 844
Decision Date: 29 April 2014

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application by Jodie Leila Taigel, seeking an order to declare the will of her deceased father, Brent Darrel Taigel, as valid under the Wills Act 2007. The primary issue before the court was whether a solicitor's file note, dated February 13, 2006, and outlining apparent instructions for a will, could be deemed a valid will under the statute. The file note, authored by Mr Taigel's solicitor, Martin Montague, outlined specific instructions for the will, including the appointment of executors and trustees and the distribution of the estate to Mr Taigel's children upon their attainment of 25 years of age.

The court had to determine if the file note, which did not comply with the formalities required by section 11 of the Wills Act 2007, could be validated as a will under section 14. The court could consider the document itself, evidence on its signing and witnessing, the deceased person's testamentary intentions, and statements made by the deceased person. The court held that while the file note did not strictly qualify as a will under the Act, the strong evidence of Mr Taigel's testamentary intentions, as corroborated by his statements to his mother and daughter, justified a liberal interpretation of the statutory provisions. The court concluded that the file note, despite its deficiencies, could be validated as Mr Taigel's will, given the exceptional circumstances and the clear intention of the deceased to have executed a will in accordance with the instructions recorded in the file note.

The court granted the application, declaring the file note as the valid will of Mr Taigel. The court also authorized that the reasonable costs of the application be met out of the proceeds of the estate.

Orders