Stewart v Timms

[2019] NZHC 2952

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-502

[2019] NZHC 2952

IN THE MATTER

of the estate of WAYNE STEPHEN HARROLD, Deceased

AND

Section 14 of the Wills Act 2007

BETWEEN

SASANI JENNY STEWART

Applicant

AND

MICHELLE BETH TIMMS and VICKI JANE GROUFSKY

Respondents

Hearing:

5 November 2019

Counsel:

M Phillipps for Applicant

W A L Todd for Respondents

Judgment

12 November 2019

JUDGMENT OF SIMON FRANCE J

[1]    This is an application under s 14 of the Wills Act 2007 to declare a document to be a valid will. The document is a draft will prepared by a lawyer on instructions. The difficulty is that it remained unsigned for the 19-month period between drafting and the testator’s death. During that period there were several reminders to sign it. The trial issue is whether the draft will represented the testator’s intentions at the time of his death.  The respondents say the will was not executed because the testator,   Mr Wayne Harrold, no longer agreed with its contents.

STEWART v TIMMS and GROUFSKY [2019] NZHC 2952 [12 November 2019]

Facts

[2]    Mr Harrold made a will on 13 April 2006. At the time he was in a de facto relationship  with   a   woman   named   Linda Gibbs-Holt.   That   will   appointed Mr Harrold’s sisters, Mrs Michelle Timms and Mrs Vicki Groufsky, the respondents in this case, as executors. Apart from some personal items left to family, the estate was left to Ms Linda Gibbs-Holt. If she predeceased Mr Harrold, then the estate would go equally to his sisters. Ms Gibbs-Holt died in 2009.

[3]    In 2011  Mr Harrold  began  a  de  facto  relationship  with  the  applicant,  Ms Sasani Jenny Stewart. That relationship continued until his death on 4 March 2019. Ms Stewart has a son, Z, from a previous relationship. The couple had no children and the evidence is that Mr Harrold treated Z as his own.

[4]    In July 2017 the couple signed up to jointly buy a property. However, because the security being offered was another property solely in Mr Harrold’s name, and because he was the sole income earner,  the  bank  advised it  would  not  lend  to  Ms Stewart. The property was accordingly purchased in Mr Harrold’s name.

[5]    It was at this time that the couple’s lawyer, Ms Smith, took instructions about a will. Her evidence is that Mr Harrold said that because the property was in his name, he would protect Ms Stewart by doing a will in her favour. Instructions were taken to appoint Ms Stewart as executor and leaving the estate to Ms Stewart and if she predeceased him, to the son Z. Ms Smith says that at that time Mr Harrold said he thought of Z as his own child.

[6]    In the event of Ms Stewart predeceasing him, Mr Harrold wanted Z to also be the executor. Ms Smith advised he was too young, and Mr Harrold said he would think about who he wanted instead.

[7]    The draft will was sent on 3 August 2017. After an earlier attempt to contact Mr Harrold by email, on 8 March Ms Smith phoned Mr Harrold to inquire as to the whereabouts of the will. Mr Harrold said he would get onto it. This exercise was repeated on 9 May 2018. Ms Smith says that on both occasions Mr Harrold repeated that he wanted Z to be the executor but was told he was too young. Mr Harrold

indicated he had every intention of signing the will. Ms Smith deposes that she understood the draft will to still reflect Mr Harrold’s intention at the time of his death, but accepted that was based on him not saying anything to the contrary.

Other evidence

[8]    Evidence was filed from Ms Stewart in support of her application, and then in opposition from Mrs Groufsky and her husband, Mr Raymond Groufsky. Reply affidavits were then filed by Ms Smith and Ms Stewart. I summarise from those the matters I consider relevant.

[9]    Ms Stewart confirms that Z lived with the couple from the start of their relationship. He would have been about eight years old at that time. Ms Stewart explains the domestic arrangements, which involved her staying at home and looking after the household. Mr Harrold did not want her to work, and always said he would provide for her, and leave his estate to her.

[10]   Concerning the unsigned will, Ms Stewart said she raised it with him once or twice. He told her not to worry about it. Ms Stewart says Mr Harrold had health issues at the time and she did not want to worry him by pushing him to go and sign things.

[11]   Mrs Groufsky says the unsigned will does not reflect Mr Harrold’s intentions as they were known to her. Mrs Groufsky says the 2006 will represented his intentions, though she later accepted in cross-examination that this was not so, given the initial beneficiary  had  died.  Concerning  the   significance  of  the  delay  in  signing,   Mrs Groufsky says Mr Harrold had been a union representative for years and was very familiar with the need for written agreements to be signed if they were to be binding. She deposed that “[h]e believed an unsigned contract was worth nothing.”

[12]   Mrs Groufsky links the structure of the 2006 will to what happened with their parents’ estate. The siblings received nothing and Mr Harrold was upset by this. She thinks the 2006 will is him trying to help his sisters, although that appears to be her surmising rather than anything Mr Harrold said.

[13]   Mrs Groufsky confirms her husband told her of a conversation he had with Mr Harrold. This conversation is the reason for Mr Groufsky’s affidavit. The context was a 60th birthday party for a family member. Mr Groufsky says Mr Harrold made unsolicited comments to him about how the sisters would be taken care of if something happened to him. Mr Groufsky remembers it because it was unexpected coming from Mr Harrold who was a private person. The date was May 2018, so at a time when  Mr Harrold had the draft unsigned will.

[14]   The reply evidence is largely unhelpful. Ms Smith reiterates her belief the draft will represented present intentions and the cause for delay was the desire to have Z as executor. She responds to a suggestion that the draft will reflects Ms Stewart’s presence at the time instructions were given. Ms Smith acknowledges Ms Stewart was present but says all communication thereafter was directly with Mr Harrold.

[15]   Ms  Stewart  expresses  surprise  at  the   alleged   conversation   between   Mr Groufsky  and  Mr Harrold.  She  believes  they  were  not  close,  and  doubts  Mr Harrold would talk to him about such personal matters.

Oral evidence

[16]   Each witness was cross-examined. I limit my comments to explaining findings I make as a consequence.

[17]   I begin with Mr Groufsky. The primary purpose of his evidence was to recount the discussion he said he had with Mr Harrold in which Mr Harrold is said to have volunteered that his sisters  would  be  taken  care  of  if  something  happened  to  Mr Harrold. Mr Groufsky said he recalled it because it was unexpected as Mr Harrold was normally a private man who did not talk about such things.

[18]   In oral evidence Mr Groufsky gave different evidence. He queried, where no- one else did, Mr Harrold’s attitude to Z, and disputed he regarded him as a son. He made other observations, all sourced, it was said, in personal disclosures Mr Harrold made on the occasions he visited for family events. This pattern of conduct attributed to Mr Harrold is very different to the private man described by Ms Stewart, and by Mr Groufsky in his affidavit.

[19]   I did not find Mr Groufsky a witness I could rely on. He was quick to advance a viewpoint without seeming to listen to the question. His own evidence was internally contradictory, and also contradicted on several occasions the evidence of his wife, Mr Harrold’s sister. Her evidence was much more considered.

[20]   I am not here making a finding that there was no conversation between      Mr Groufsky and Mr Harrold. Rather, whatever its scope and content, I do not accept Mr Groufsky’s evidence is a sufficient base  on  which  to  draw  inferences  as  to Mr Harrold’s intentions. The words as recounted could in any event mean many things, but I do not have sufficient confidence in the recounting to place weight on the event.

[21]   I accept Ms Smith’s evidence, which was not really challenged. It is fair to note the limits of her evidence, as pointed out by the respondents. Ms Smith is satisfied the unsigned will reflects genuine instructions. The instructions are consistent both with her knowledge of the couple and with the circumstances in which the house came to be placed only in Mr Harrold’s name. Her evidence thereafter is that Mr Harrold was still thinking about the executor issue and that he said he would get onto it. There were no renewed affirmations by Mr Harrold of the contents of the will; nor, of course, were there any suggestions of resiling.

[22]   One aspect of Ms Smith’s evidence to be noted was that her experience of  Mr Harrold was that he was a procrastinator when it came to his affairs and documents. He was one who always needed prompting in these matters.

[23]   Concerning Ms Stewart, I accept her evidence that Mr Harrold said often he wanted to provide for her or look after her. I see no reason to doubt it and it is consistent with the domestic arrangements and what witnesses said of Mr Harrold. He liked to work and to provide. The family history is that Mr Harrold met Ms Stewart when on a visit to Samoa where she then lived. There was seemingly an immediate attraction. Mr Harold returned to New Zealand but two months later returned to Samoa and convinced Ms Stewart to come to New Zealand with Z and live with him. He thereafter made a home with them. There were times when Ms Stewart was inflexible in her evidence, but something I consider born in part by her belief that

Mr Harrold loved her and her son and intended to leave everything to them. She found it hard to confront contrary propositions.

Decision

[24]   The relevant statutory provision is s 14 of the Wills Act 2007. I consider it important to focus on the statutory test which is that the Court must be:

satisfied that the document expresses the deceased person’s testamentary wishes.

[25]   Here the document in question is a draft will prepared by a solicitor on instructions from Mr Harrold. The respondents do not contest that at the time the instructions were given, they represented Mr Harrold’s testamentary wishes. Aspects of Mrs Groufsky’s affidavit evidence appeared to put that point in issue, but it was disavowed in oral evidence and submission.

[26]What can be said about these instructions at the time they were given?

[27]   First, the context was a purchase of what was to be a joint home, but which in the end was put only in Mr Harrold’s name, leaving Ms Stewart, a de facto partner, with no formal title.  The terms of the will instructions were expressly  linked by   Mr Harrold to this situation.

[28]   Second, the will left the estate to Ms Stewart’s son, Z, if Ms Stewart predeceased Mr Harrold. This reflects Mr Harrold’s view of the family unit. It is a standard disposition arrangement made by parents with children, and it is consistent both with what Ms Stewart says about Mr Harrold’s attitude to her son, and with what Mr Harrold said to Ms Smith. In the 2006 will, Mr Harrold had made his sisters the beneficiaries in the event of his partner predeceasing him, but things had obviously changed with his new family arrangements.

[29]   The disposition is also consistent with the background context which  saw  Ms Stewart relocate to New Zealand with her son, and then manage the household in a way that left her dependent on Mr Harrold. That was as Mr Harrold wanted it, and it is not surprising that the draft instructions are in effect a logical continuation of that arrangement.

[30]   Third, there  was  a  reason  for  delayed  completion  of  the  instructions.  Mr Harrold wanted Z to be the executor and trustee if Ms Stewart could not be. As Ms Smith said, he became fixated on it, despite being told it was not possible. He returned to the proposition each time Ms Smith contacted him.

[31]   What emerges, therefore, is that in August 2017 one can identify clear testamentary intentions, and can have certainty that the document that is the subject of the s 14 application accurately reflects those testamentary intentions. Further, the testamentary intentions are consistent with the testator’s lifestyle and views, and very much reflect both his affections and moral obligations.

[32]   It is against that background that the Court must assess whether the document still reflected his testamentary intentions at the time of his death. The onus is on the applicant. Any query or uncertainty that arises comes from the fact that for a 19-month period prior to his death, Mr Harrold did not sign it. Does that give pause on whether his testamentary intentions remained unchanged?

[33]   I first note that there is no evidence of any event that might precipitate a change.   The  family  arrangements   were  unchanged.   There  is   no  suggestion Mr Harrold’s affection or commitment had wavered in any way.

[34]   Next, the respondent suggests the delay was significant because Mr Harrold was in poor health. The proposition is that if he knew he was not well, and still did not sign the will, that must point to him having doubts about the contents.1 I accept the logic of the suggested inference, but do not consider the underlying premise is established. Everyone described Mr Harrold’s death as unexpected. He was working up to the time of his death and his health issues were being managed. Ms Stewart’s evidence is that they were improving. There is accordingly no evidence to suggest Mr Harrold saw any enhanced need to get on and sign the will.

[35]   The next factor is that there are explanations why the will was not signed, and they are explanations that do not suggest  any change  in  testamentary  intentions. Mr Harrold was obviously struggling with whom to appoint as executor. Whether that

1      Relying on Amundson v Raos [2015] NZHC 2422, [2015] NZAR 1772.

is something that should be a difficulty is beside the point. The reality is that it was an issue for him. Added on top of that is the personality of a procrastinator in these sorts of things, and a man who worked long hours and so had less time to address such things.

[36]   The latter needs explanation. The proposition cannot be that over 19 months there was no opportunity to complete and sign. That would be a nonsense. But it is clear that Mr Harrold’s approach to work and his little downtime meant there was a significantly reduced time to address personal affairs, and plainly he was not one to accord them any priority.

[37]   I accordingly do not find in the delay in the signing the will any indication of changed testamentary intentions.

[38]   I address finally the alleged conversation with Mr Groufsky. I have commented on that already, but further observe I would not have seen in the comments Mr Harrold allegedly made an intention to alter his will. This is not a large estate. Whilst there are two properties, there is a large mortgage. There were borrowings on the vehicle Mr Harrold used, which has had to be returned, seemingly with a shortfall. There is no cash. It is accordingly not a situation where to make provision for his sisters would have no impact on Ms Stewart and her son.  There was no surplus.   Mrs Groufsky accepted that Mr Harrold was aware both she and her sister had mortgage-free properties. There is no context for Mr Harrold suddenly deciding he needed to help his sisters. Despite the respondents seemingly viewing the matter differently, Mr Harrold did not provide for them in 2006 will. He left everything to his then partner. It is true that he left the estate to them if his partner predeceased him, but it is plain he felt no obligation to provide if that was not the case. This was again the case in 2017 when he gave his instructions. There is no basis to imagine a change in this regard in the intervening 19 months before his death.

Conclusions

[39]   I am satisfied that the unsigned will, drafted in August 2017 by Ms Smith on Mr Harrold’s instructions, is a document that expresses Mr Harrold’s testamentary

wishes. The application is accordingly granted and I declare the document to be a valid will of Wayne Stephen Harrold.

Costs

[40]   The respondents request that the estate meet their costs. It is submitted that it was reasonable to oppose the application, and it is noted that the respondents were executors under the 2006 will, which appears to be the preceding will.

[41]   The onus to establish the correct position concerning Mr Harrold’s estate has fallen in this hearing on Ms Stewart. I do not consider the opposition to the application to have been reasonable. As the judgment discusses:

(a)the respondents accept that in 2017 the  unsigned  will  represented Mr Harrold’s testamentary intentions;

(b)those intentions reflect Mr Harrold’s personal circumstances and his moral obligations; and

(c)there is no credible evidence to suggest any change in his intentions. The respondents knew the family arrangements of their brother remained unchanged. Mr Harrold had not provided for them in 2006 either.2

[42]   The estate is small and already in difficulty. It should not have to bear the respondents’ costs.

[43]   I also consider a standard award on a “costs follow the event” basis is appropriate and award the applicant 2B costs, together with reasonable disbursements to be fixed by the Registrar if necessary.

Simon France J

2      Other than a small gift of family photos and a tea service.