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]      A file note of Mr Montague’s dated “13.2.06” records as follows:

Brent Daniel Taigel 43 Guthrie St, L, Hutt

Serviceman

1.        Cancel prior wills.

2.        Appoint parents Ralph Horace Taigel

Shirley Grace Taigel and MJM [Mr Montague]1

As executors + trustees

3.        Whole estate to children

Jesse Darrel Taigel

+ Jodie Laila     ″

at 25 years

g/o [gift over]1 to grandchildren

Powers

[8]      There is no evidence that the preparation of a will for Mr Taigel proceeded any further.   No will has been discovered for Mr Taigel.   Mr Montague died in November 2009.

[9]      Mrs Taigel has deposed that Mr Taigel had lung cancer for approximately

15 months before his death, and that she asked him on several occasions whether he had organised his affairs.  Mr Taigel told her that he had a will with Mr Montague at Gibson Sheat.  He also advised his mother that she was the executor of his will and that his children were the beneficiaries.  His father was no longer alive at the time.

[10]     In March 2012 (subsequent to Mr Montague’s death) Mr Sarginson, another partner of Gibson Sheat, received an enquiry from Mr Taigel, requesting a meeting to look at his will.  After checking the firm’s records, Mr Sarginson wrote to Mr Taigel at the end of March 2012 advising that the firm did not have a will, or any record of having a will for Mr Taigel in the firm’s deeds safe.

[11]     Mrs Taigel deposes that Mr Taigel discussed Mr Sarginson’s advice with her.

Mrs Taigel recalls Mr Taigel treating Mr Sarginson’s advice as mistaken.   He had

1      I am satisfied that the abbreviations in Mr Montague’s file note have the sense of the words I

have added in brackets.

had previous experience of Mr Montague losing deeds and apparently considered that Mr Montague must have lost his will and it would be found in due course when it was needed.

[12]     Mrs Taigel also deposes that Mr Taigel told her on a number of occasions that “he had told his insurance company that the money was to go to his children”.  The major asset in Mr Taigel’s estate is the proceeds of life assurance policies valued at some $537,000.

[13]     Jodie has pursued the application on the basis of her belief that Mr Taigel thought he had made a will that accorded with the terms of the file note.   She deposes that Mr Taigel called her in approximately August 2012 to talk about his will and insurance.  She did not want to speak to him about those topics at that time, and cut the conversation short, but deposes that he did tell her that “everything was taken care of and that the life insurance policy he had taken out was for me and Jesse”.

[14]     Acting by her solicitor, Ms Dickson has indicated that she intends to make a claim  in  respect  of  Mr Taigel’s  estate.    Despite  that  intention,  Ms Dickson  has consented to the present application, without prejudice to her rights to pursue a claim against the estate as it would be administered if Mr Montague’s file note is validated as a will.  In my 17 February 2014 minute, I directed that it and the further affidavit I requested to be filed were to be served on the solicitor for Ms Dickson, and that she would have a period of 14 days to respond.  A limited response dated 3 April 2014 confirmed service of those documents.  It also confirmed that Ms Dickson abides the decision  of the Court  as  to  the validity of the  will  and  does  not  object  to  the application on a without prejudice basis.  If the file note is not validated as a will, then her solicitor indicates that Ms Dickson would seek letters of administration be granted to her as  a qualifying de facto partner, but acknowledged that such an application would be challenged.

[15]     A number of options are open to Ms Dickson and the nature and extent of her claim is likely to be influenced by the duration of any de facto relationship that is found to exist when that issue is contested.

[16]     After taking into account Ms Dickson’s position, all others who would be interested  in  Mr Taigel’s  intestacy  have  indicated  their  support  for  the  present application.

The s 14 analysis

[17]     The first inquiry is therefore whether Mr Montague’s file note is a document that appears to be a will.  There can be no dispute that it constitutes “a document”. The requirement in s 8(1)(a) is that the document be “made” by the person disposing of property to which that person is entitled when he or she dies.

[18]     Mr Montague’s file note is not “made” by Mr Taigel in the literal sense and there is no endorsement purporting to be in Mr Taigel’s own handwriting to confirm that it was made indirectly by him in the sense of being at his direction.

[19]     There is no guidance either in the Act, or in cases decided under s 14, on what is required for a document to have been “made” by an intending testator.   It appears to be unnecessary that the writing be by the testator’s own hand, or that the testator have confirmed that the record was undertaken at his direction by signing, as those elements have not been required and would appear unduly restrictive.

[20]     In  circumstances  such  as  the  present,  the  legislative  purpose  would  be achieved if there is some sufficient connection between the document and the intending testator to make out the reliability of the document as a record of the personal intentions of the would-be testator.

[21]     In other respects, the file note does purport to dispose of property to which Mr Taigel would be entitled on his death, and it does identify those who he wished to act as the personal representatives of his estate.  The critical dispositions are clear as is the appointment of executors and trustees.   It might reasonably be inferred that usual powers were intended by the shorthand reference to “powers”, but there is no contemplation that the testator confirm the record as his intentions on disposition of property by signing the document.  That would not have been contemplated where, at the time the notes were made, it can reasonably be inferred that Mr Montague

intended to prepare a will for subsequent consideration, and presumably execution, by Mr Taigel.

[22]     On what can safely be inferred from the circumstances of creation of the file note,  it  represented  conventional  instructions  which  would  afford  Mr Taigel  a subsequent opportunity to review them before committing to the core provisions recorded  by  executing  a  conventional  will.     No  explanation  is  offered  for Mr Montague’s failure to prepare the will.

[23]     There  is  therefore  scope  for  concern  that  in  these  two  respects  which somewhat overlap, the document sought to be propounded is not “made” in the requisite sense by Mr Taigel, and because it is not in terms suggesting that Mr Taigel committed to it as a record of disposition, nor does it appear to be a will.

[24]     In an academic comment on the 2007 Act at the time of its introduction, Professor Peart suggested that the requirement that a document appears to be a will may be used to exclude drafts or notes of instructions.2   Most cases where the Court has exercised its power under s 14 have involved the validation of documents that included amendments to pre-existing wills, or documents that were completed but remained unsigned or un-witnessed.3    There have been some instances where the Court has validated alternative documents such as a memorandum of wishes or schedule of intentions.   However, even in such cases, the document has still been signed by the deceased or witnessed in some manner.4

[25]     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.

2      Nicola Peart “Where there is a will, there is a way – A new Wills Act for New Zealand” (2007)

15 Waikato L Rev 26 at 35.

3      Stephenson v Rockell (2010) 28 FRNZ 168; Smith v Shaw HC Nelson CIV-2010-442-239,

14 September 2010; Re Tutaki (dec’d) HC Hamilton CIV-2010-419-1208, 13 May 2011; Lauder v Lauder [2012] NZHC 3155.

4      Genet Trustee Ltd v Genet [2013] NZHC 2824; Naidu v Agnew [2012] NZHC 2134; Re Rejouis

(dec’d) [2010] 3 NZLR 422.

[26]     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.

[27]     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.

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

[29]     The affidavits of both Jodie and Mrs Taigel aver that Mr Taigel made separate but  consistent  statements  to  them  as  to  the  distribution  of  his  estate.    Those statements are consistent with the instructions contained in the file note.  Mr Taigel seemed to consider that he had done all he needed to do to make a will, and the absence of a formal draft cannot be attributed to any deficiency on his part. Furthermore, there is no evidence that he contacted Gibson Sheat in March 2012 with any intention of altering the will he believed they held for him.  I accordingly am prepared to make the order validating the document as Mr Taigel’s will.

[30]     Although  not  directly relevant  to  the s 14  analysis,  I am  mindful  of the approach  signalled  on  behalf  of  Ms Dickson  as  the  only  apparent  competing claimant  to  Mr Taigel’s  estate.    I  infer  that  the  stance  conveyed  on  her  behalf acknowledges the reality that a contest between Mr Taigel’s adult children and his de facto partner needs to occur in a formal context, and that Ms Dickson is content for that contest to start from the premise that the file note constitutes Mr Taigel’s will.   No doubt if the document were not validated, then the testamentary wishes expressed in it would assume similar relevance in a contest occurring in what would then be Mr Taigel’s intestacy.  It is likely that the validation will facilitate the contest between those interested in the estate more efficiently than in any alternative context.

[31]     I accordingly grant the order sought for validation of the file note as the will of Mr Taigel.

[32]     I  authorise  the  reasonable  costs  of  the  application  to  be  met  out  of  the proceeds of the estate.

Dobson J

Solicitors:

ARL Lawyers, Lower Hutt for applicant