Scott v King
[2019] NZHC 1538
•4 July 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-604045
[2019] NZHC 1538
IN THE ESTATE Of DONALD ALEXANDER SCOTT, of
Auckland, Company Director Deceased
BETWEEN
JEANETTE RUTH SCOTT
Applicant
AND
JODY MICHELLE ANNIE KING
Caveator
Hearing: 26 June 2019 Counsel:
R M Lewis for Applicant J Zwi for Caveator
Judgment:
4 July 2019
JUDGMENT OF WHATA J
This judgment was delivered by me on 4 July 2019 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Lewis Callanan, Auckland
AWS Legal, Invercargill
SCOTT v KING [2019] NZHC 1538 [4 July 2019]
[1] Jeanette Ruth Scott (Mrs Scott) applies for an order that the grant of letters of administration nisi in the estate of her late husband, Donald Alexander Scott be made absolute. There is no doubt that Mrs Scott, as the deceased’s spouse is prima facie entitled to seek letters of administration in the absence of a will by the deceased. Problematically, in this case, a “Will” was executed on 22 June 2018. Two days after execution, an invitation to the wedding of Mr and Mrs Scott was sent out. This brings into frame s 18 of the Wills Act 2007 which says:
18 Effect on will of will-maker marrying or entering civil union
(1)A will is revoked if the will-maker marries or enters a civil union.
(2)Subsection (1) is—
(a)overridden by section 10; and
(b)overridden by subsection (3); and
(c)qualified by subsection (4).
(3)Subsection (1) does not apply if—
(a)either—
(i)the will expressly says that it is made in contemplation of a particular marriage or civil union; or
(ii)the will does not expressly say that it is made in contemplation of a particular marriage or civil union but the circumstances existing when it was made show clearly that it was made in contemplation of a particular marriage or civil union; and
(b)the marriage or civil union that occurs is the contemplated one.
(4)The exercise by will of a power of appointment is not revoked by the will-maker marrying or entering a civil union if the property appointed would not go to the will-maker’s personal representative if the will-maker did not exercise the power.
[2] Mrs Jody Michelle Annie King (Mrs King), the deceased’s biological daughter (but adopted and therefore not entitled to benefit on intestacy), has lodged a caveat in respect of the deceased’s estate. She says that subs 18(3) applies. She argues that the will which is, prima facie, revoked by subs 18(1), was made in contemplation of a particular marriage and therefore is not revoked.
[3] The issue before me is whether the Will is not revoked by the operation of s 18(1) because it was made in contemplation of marriage. If I am satisfied that there is a reasonable argument to that effect, then letters of administration should be subject to a solemn form process.
Background facts
[4] The background facts are fully set out in the affidavit of Mrs Scott. She met the deceased in 1978 and commenced a de facto relationship in Auckland in 2006. She was aware that the deceased had two children, one, Mrs King, who was conceived when the deceased and Mrs King’s mother were very young. They separated and the deceased maintained contact with Mrs King until her mother tragically died following an asthma attack. The pastor of her church then adopted Mrs King.
[5] In 2012, Mr and Mrs Scott entered into an agreement under s 21 of the Property (Relationships) Act 1976 defining their separate property. It deals with their property in death. Mrs Scott has exercised her option not to make an election under the Property (Relationships) Act 1976 for the division of any relationship property and instead to take any bequest made to the surviving party under the will or intestacy, as the case may be, of the deceased party.
[6] The deceased’s lawyers, from at least 2012 until his death, were Price Baker Berridge (PBB) in Henderson. They prepared the PRA agreement and they prepared a will for the deceased at that time.
[7] The deceased was diagnosed with lung cancer in December 2017. In early 2018, he spoke to his lawyers about enduring powers of attorney and attended PBB to give instructions. He signed an enduring power of attorney for property, dated 2 July 2018, and an enduring power of attorney for personal care and welfare, dated 22 June 2018. The personal care and welfare power of attorney was left with Mr Alex McDonald and the property power of attorney was left with Eddie Bluegum. Mr McDonald is a witness to the deceased’s will.
[8] It appears that the deceased gave his instructions for enduring powers of attorney in his will sometime in late April 2018. The will was executed on 22 June 2018.
A marriage in contemplation?
[9] Mrs King says that she was notified that Mr and Mrs Scott were to be married on 24 June 2018. Mrs Scott recalls that on that day the deceased mentioned getting married out of the blue. She was stunned and she cried. She was concerned for him because at the time he was undergoing chemotherapy. She thought about when they could get married and they decided 4 August 2018 and let his family and her family know about that then. She says that after the wedding, they continued on as before. Mr Scott passed away on 1 January 2019.
[10] Mr Alex McDonald also attaches a file note, dated 9 January 2019, which states:
2. I’ve been contacted by Donald’s wife, Jeanette, she has let us know that Donald passed away on the 1st and she has also let us know that since he made his will, they got married. At the time of making the will there wasn’t a marriage contemplated but he ended up getting engaged and marrying after this was done, so unfortunately this invalidates the will, so I will have a look to see what we can do to deal with this issue.
[11]There is another file note, dated 15 January 2019, stating:
1. Donald Scott (known as Scotty) has passed away. He had prepared a will in June last year but got married after drafting a will and did not advise us that he was contemplating getting married, so accordingly we did not set out that the will was in contemplation of an impending marriage. Accordingly, under the Wills Act a new will invalidates the marriage unless the will sets out that it is in contemplation of a marriage or the circumstances show that the will was made in contemplation of a marriage.
2. It doesn’t look like we will be able to get over this bar, so accordingly, it looks like everything will need to go down the intestacy path along with letters of administration.
3. I note Scotty had a Contracting Out Agreement with his partner Jeanette. The agreement sets out that Jeanette is not to make any application under the Property Relationships Act for the division of any relationship property and is to take any bequest made to her under Scotty’s will or intestacy as the case may be, so looking at the Administration Act and the Intestacy Rules, we see that Scotty had de facto partner in issue which means that his
de facto partner, Jeanette, would be entitled to his personal chattels and the residue of the estate would be left 1/3 to Jeanette and 2/3 to Scotty’s children.
[12] Mrs King, however, has produced text messages, said to be to her, from Mrs Scott dated 24 June 2018. One such text records:
Hi Jody. Scotty and I are getting married on 4th August. We are just going to have a post-wedding party to celebrate due to Scotty being so unwell. I’ll be sending invites this week. Hope you can make but understand if you …
Assessment
[13] While the evidence is sparse, I am satisfied that the caveator has a reasonably arguable case that the will executed on 22 June 2018 was in contemplation of marriage. Two factors are particularly relevant in reaching this view. First, the text of 24 June 2018 strongly suggests that at about the time the Will was executed, Mr and Mrs Scott had marriage in mind. Second, the marriage in fact occurred reasonably shortly thereafter, on 4 August 2018.
[14] I acknowledge some of the authorities cited to me, including Public Trust v Stirling1 discharge caveats in similar circumstances. In Stirling, the deceased, Andrew, executed a will on 10 July 2007. On 11 August 2007, the deceased, Andrew, and his partner decided to marry on either 17 November or 1 December 2007. Wedding rings were ordered in October 2007. Like the deceased in the present case, Andrew had been diagnosed with cancer and, on 6 November 2007, was told that his treatment was not working.
[15] While it appears that the Court there was acting in its summary jurisdiction, the procedural background was not clear to me and the extent to which the issues were subject to a full hearing.
[16] In any event, I prefer to take the approach adopted by Katz J in Jurisich v Harris:2
[7] … if a caveator does raise sufficient grounds to establish that a full inquiry is appropriate, the usual course will be an order that the application for letters of administration be made in solemn form. It is
1 Public Trust v Stirling HC Tauranga CIV-2008-470-563
2 Jurisich v Harris [2016] NZHC 525, [2016] NZAR 754.
well established that the “show cause” hearing under s 61 will not generally be the appropriate forum for resolving disputed factual issues. Rather, if a caveator meets the fairly low threshold of satisfying the court that there are sufficient grounds for a full inquiry into the matters that have been raised, the appropriate order is that the application proceed by way of solemn form. Such a process requires formal pleadings and a full contested hearing.
(Footnotes omitted.)
[17] I accept that on the available record, a strong case is made out for Mrs Scott. But the available record contains none of the contemporaneous material that might shed light on whether Mr Scott, at the time he executed his Will, had marriage in contemplation. In this regard, the production of the text message from Mrs Scott raises sufficient credibility issues insofar as she claims that marriage had not been in contemplation at about the time of the execution of the Will. It is a matter requiring proper testing.
Relief
[18] I have considered what the appropriate relief should be in this case. A confounding factor is that, on the caveator’s case, there is a valid will in relation to which probate should be granted. I do not understand from the applicant in this case that there is any other challenge to the will’s validity. Nevertheless, it would seem appropriate to utilise any future proceedings to resolve the issue of administration at any substantive hearing about whether the will was made in contemplation of marriage.
[19] Furthermore, a further hearing is required because I cannot say conclusively that the caveator’s position is such that letters of administration ought not to be granted.
[20]On that basis, I make the following orders:
(a)The order nisi is discharged.
(b)The application for administration is to proceed in solemn form.
(c)Leave is granted to any of the parties, if assistance is required, for the purposes of interim administration of the estate.
(d)If costs cannot be agreed between counsel, then leave is reserved to file memoranda within five working days.
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