Sun v Sun
[2021] NZCA 489
•28 September 2021 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA594/2020 [2021] NZCA 489 |
| BETWEEN | BILLY YUEN-KUEN SUN |
| AND | MICHAEL CHIN-CHEN SUN |
| Hearing: | 2 September 2021 |
Court: | Gilbert, Duffy and Peters JJ |
Counsel: | G E Slevin for Appellant |
Judgment: | 28 September 2021 at 9.30 am |
JUDGMENT OF THE COURT
AThe application to adduce further evidence is granted.
BThe appeal is allowed.
COrder declaring the will of Grace Li-Fang Tang dated 7 September 2016 valid.
DThe respondent must pay costs to the appellant for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
This is an appeal against a judgment of the High Court declining to validate a will that was irregularly executed in that there was only one witness.[1] The Judge was not satisfied the deceased knew and understood the terms of her will and approved them.[2]
Factual background
[1]Sun v Sun [2020] NZHC 2414 [High Court judgment].
[2]At [39].
Grace Li-Fang Tang (Grace) died unexpectedly of natural causes on 27 January 2018 at the age of 58. She was survived by her then 62-year-old husband, Billy Yuen-Kuen Sun (Billy), to whom she had been married for 35 years and their two adult children, Michael Chin-Chen Sun (Michael) then aged 34 (who lives in Christchurch), and Michelle Chin-Jou Sun (Michelle), then aged 32 (who lives in Melbourne).
The couple married in Taiwan in 1982 and immigrated to New Zealand with their two children in 1993. The family lived initially in Auckland before moving to Rotorua in 1996. The couple relocated to Christchurch in 2015. Billy worked primarily as a tour guide, but he was also involved in a souvenir business while the family was living in Rotorua. Billy’s work meant he spent lengthy periods away from home each year, taking tours both within New Zealand and in Taiwan. When in Taiwan, he would visit the couple’s parents who remained living there. Because of Billy’s lengthy absences, Grace had primary responsibility for raising the children and managing the household. She also took care of the accounting side of the business and managed the couple’s rental properties with the assistance of a property manager.
To improve her English skills, Grace attended English classes at a university in Auckland soon after coming to New Zealand and English as a Second Language (ESOL) classes in Rotorua. However, the extent of her proficiency in English is a matter of contention in this proceeding.
In late August or early September 2016, some 17 months before Grace’s death, the couple decided to complete wills. Neither had previously made a will. Grace purchased a book entitled “The New Zealand Will Kit” from a local book store.[3] The kit contained three blank will forms, directions on how to write a simple and legally effective will, and a sample will. Billy said he and Grace discussed what they wanted to happen to their assets. He said they then completed their respective wills in their own handwriting using the standard forms provided. Grace added two handwritten pages to her will and Billy added one handwritten page to his.
[3]The New Zealand Will Kit (New Holland Publishers (NZ) Ltd, Wellington, 2006).
Each will largely mirrors the other and the terms are unremarkable:
(a)Each appointed the other to be the sole executor with Michelle as the backup in the event of the other spouse dying first or being unable to act in that capacity.
(b)Each left the entire residue of their estate — “both real and personal of whatever nature and kind, wherever it is located” — to the other. In the event of the other spouse dying first, they each left their estate to Michelle.
(c)Life insurance policies were listed in the handwritten section with details of the insurer, type of cover, policy number and life assured. Billy and Grace were both listed as the life assured under the first two policies, which covered accidental death. Each nominated the other to be “the first beneficiary” and Michelle to be “the second beneficiary” in respect of these policies.
(d)The only material difference between the two wills is that Grace’s list of policies extended onto the second page, included three additional policies and also referred to a company. The first of the additional policies was another joint policy whereas Grace was listed as the sole policy owner of the other two life policies. The joint policy was to be dealt with in the same way as the other two joint policies, namely with Billy as the first beneficiary and Michelle as the second. Michelle was to take the benefit of the other two policies and Grace’s interest in the company, M & M Sun Co Ltd, through which the couple held a forestry investment. Grace was the sole director of this company.
After writing out these wills at home, they made an appointment with a local Justice of the Peace, Mr John Benefield, for the purpose of having the wills properly executed. They duly met with Mr Benefield at his house at the appointed time on 7 September 2016. Having produced their passports to confirm their identity, Billy and Grace signed their wills in Mr Benefield’s presence and placed their initials alongside each of the standard clauses that had been struck through, at the foot of each page, and on the handwritten pages. Grace’s initials appear in 11 places on her will and her full signature appears in the attestation clause. Mr Benefield added his initials and stamp alongside each of these initials and signed in the space provided beneath her signature for “Witness 1” and again added his stamp. Mr Benefield recorded their full names and passport numbers in an appointment book he maintained for this purpose and made the entry — “Each signed wills”. These formalities having been completed, Billy and Grace took the wills home and put them in a safe place. Unfortunately, Billy and Grace did not appreciate that one of the requirements for a valid will in terms of s 11(4) of the Wills Act 2007 (the Act) is that at least two witnesses must be together in the will-maker’s presence when he or she signs the document, and each witness must sign the document. Mr Benefield similarly overlooked this requirement or was not aware of it.
We pause here to note there is nothing about these circumstances that might arouse a suspicion that Grace did not approve the contents of her will.
When Grace died some 17 months later, on 27 January 2018, Billy was away from home guiding a tour party in Queenstown. Her death was discovered after he was unable to contact her and became concerned. He asked Michael, who lived nearby, to check on Grace and this was when it was discovered that she had passed away. The Coroner’s finding as to the cause of death was that Grace had suffered a spontaneous intra‑cerebral haemorrhage.
Application to validate will
Having discovered that the will was defective, Billy instructed solicitors to apply to the High Court to have the will validated under s 14 of the Act:
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.
(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.
The application was in standard form and was made on the grounds that Grace had completed and executed a home-made will, her signature was witnessed by Mr Benefield (but no other witness) and the will expressed Grace’s testamentary intentions. The application was supported by an affidavit from Billy attaching Grace’s death certificate, briefly summarising the family background, the circumstances surrounding the preparation and execution of the will, and the enquiries made to ascertain whether any other will existed (none did). Billy confirmed that he was willing to accept appointment as executor and trustee if the Court was prepared to validate the will. The application was also supported by a brief affidavit from Mr Benefield confirming that he had witnessed Grace signing her will and attaching a copy of the relevant entry in his appointment book as described above.
Michael filed a notice opposing the application on the grounds Grace was not aware of the terms of her will and did not approve them. Grace’s testamentary capacity was not challenged. Nor was it asserted, at least not directly, that Grace signed her will acting under the undue influence of Billy. Ms Sun, counsel for Michael in the High Court and on appeal, confirmed before us that the sole issue is knowledge and approval. The grounds in the notice opposition read:
(a)[Grace] did not have capacity to [make] a living herself, she was completely dependent on [Billy] financially.
(b)[Grace’s] English was quite poor, she could only understand and speak very limited English.
(c)[Billy] had been involved in the preparation and execution of [Grace’s] Will.
(d)[Grace] had not been interviewed on her own and advised by an independent solicitor.
(e)[Grace had] not read the Will nor was explained [the terms and effects] of the Will when she signed her name on it.
(f)The Will was homemade, the witness was ignorant of the necessary formalities and due execution of the Will.
(g)[Grace] and [Michael] got on well, it was surprising and most unlikely that [Grace] would have wanted to disinherit [him]. It was most unlikely that [Grace] was actually aware or [approved of] the content of the Will.
(h)[Billy] acted suspiciously during and after [Grace’s] death, [Billy] forged [Grace’s] signature and gifted [her] residential house in [Taiwan] to [himself] four months after [her] death.
It can be seen that several of these grounds are simply not relevant to the issue before the Court, namely whether the document expresses Grace’s testamentary intentions. It is regrettable that, despite being legally represented, Michael made various scandalous and irrelevant allegations in his supporting affidavit. He also offered inadmissible (and incorrect) opinion evidence that the handwriting on both Billy and Grace’s wills was the same.
The substance of Michael’s affidavit can be summarised as follows. He lived with the family in Rotorua until he enrolled at the University of Canterbury. Although Grace carried out accounting work to assist Billy, she had no outside employment and was entirely financially dependent on him. She never undertook any formal English education or training and her English “was limited to basic simple greetings”. Michael said that Grace relied on him and Michelle to translate for her “almost all the time”. He said that Grace did not normally visit a general medical practitioner in New Zealand, instead relying on Billy to bring medicine back from Taiwan for her. He said this was to save costs and take advantage of free health and medical care in Taiwan. Michael said that he and his mother got on well and he helped her after she moved to Christchurch in 2015 by mowing the lawn, washing the car and helping with household chores when Billy was away.[4] Michael said Grace did not talk to him about making any will and he did not believe she wanted to “disinherit” him as “she would have no motive to do that”.
[4]These claims may be contrasted with the “Statement of Identification” Michael made to the police following Grace’s death where he stated that he had not seen his mother since “I think July 2017”, some six months before her death. He also stated “I’m not that close with my mother. I’m more close to my father Billy. I speak on the phone mostly with him”.
Michael then described the circumstances leading to his discovery that Grace had passed away. He said he found “a copy of [Grace’s] irregular Will” on top of the writing desk in the master bedroom “in a very easy eye-catching position”. He said he found the “two original irregular Wills of [his] father and [his] mother in a file box under the writing desk”. He took a photograph of these two wills and attached this to his affidavit. He said he believed these two wills “were produced by [the] same person’s handwriting”. However, we note that although the writing is similar, it is reasonably obvious on careful inspection, even by a layperson, that there are some quite distinctive differences in the handwriting on the two wills. Michael said the handwriting did not look like his mother’s, adding that her handwriting was “quite scribble”. He attached two birthday cards he received from his mother some 14 years before she died. We observe that these cards are written mostly in Chinese, but the words written in English are coherent and are spelled correctly. The lettering is neat and bears some of the distinctive characteristics that can be seen in the handwriting in her will. It could not properly be described as “scribble”.
Michael then relayed what he discovered when he travelled to Taiwan in September 2018 “to apply for inheritance” of Grace’s property there. The discovery concerned a purported gift of the Taiwan property by Grace to Billy in May 2018, four months after Grace had died. Although this purported gift occurred after Grace’s death and nearly two years after her will was prepared, the Judge found this information cast doubt on whether Grace knew and approved the terms of her will when she signed it.[5] Because this information was determinative in the Judge’s decision to decline to validate the will, we set out these paragraphs of Michael’s affidavit in full:
10.In September 2018 I went to [Taiwan] to apply for inheritance of my mother’s property in [Taiwan]. I knew the jurisdiction of New Zealand and [Taiwan] were different, I knew the Administration Law of two countries were different. I knew my mother at least had one residential house registered under her sole name in [Taiwan]. According to the Administration Law of [Taiwan], legal heir of a deceased would have a reserved share from the deceased estate even if the deceased had a valid Will that excluded his or her legal heir from the inheritance. Annexed to this affidavit and marked as exhibit “C” is a print out of the relevant clauses of [Taiwan’s] Civil Code and [an] English translation.
11.The Tai Bei Internal Revenue Service informed me that [the] residential house in Kao Hsiung City [Taiwan] registered under my mother’s name solely was gifted to [Billy]on the 23rd of May 2018, four months after my mother’s death. Giving a Deceased could not gift a real estate property after her death, Tai Bei Internal Revenue Service retrieved all original gifting files and found out my mother’s signature was forged on the gifting documents. Annexed to this affidavit and marked as exhibit “D” are the gifting documents copy and English translation, page 5 contains [the] forged signature of my mother and personal stamp of my mother. I confronted [Billy] of this, he accepted that he did it, that he reported my mother’s death to [Taiwan] authority after he gifted my mother’s residential property to himself, but he refused to make any remedy. I consulted lawyer in [Taiwan], I was told such behaviour could be subject to 5 years imprisonment penalty if I reported to the Police in [Taiwan].
[5]High Court judgment, above n 1, at [29].
Remarkably, Michael then suggested that Billy may have had some involvement in Grace’s death.[6] He went on to say that if his mother was not aware of the need for two witnesses, it was likely she was not aware of the content of the document she was signing. He also suggested that if his mother had wanted to record her wishes in her will, she would have consulted a lawyer and would have recorded her wish in relation to the property in Taiwan. We note that these are all submissions, not evidence. None of this material should have featured in the affidavit. Michael said that one of the following three scenarios was likely:
(a)Grace had not understood the content and effect of the will;
(b)Grace understood what was in the will but was “unduly influenced” by Billy “to cut [Michael] out against her wishes”; or
(c)Grace had not “clearly understood” the content and effect of the will and “was left believing it was a provisional document and signed only for the sake of quiet life and to avoid squabbles with [Billy]”.
[6]We note that in his statement of identification to the police, Michael wrote, “I think that the relationship between my Mum and Dad was fairly normal. Other than him being away a lot for work, they are fine. They contact each other a lot by computer and phone”. The suggestion that Billy had some involvement in Grace’s death is fanciful in the light of Billy’s absence at the time and the Coroner’s findings as to the cause of death.
Acting on the advice of his solicitors, Billy did not respond to a number of Michael’s allegations beyond making bare denials and confined his reply affidavit to those matters considered relevant to the issue before the Court. Billy disputed Michael’s claim that Grace’s English was limited to “basic simple greetings”. He said her English was sufficient to enable to her to raise the two children into adulthood and manage all of the household affairs in New Zealand for 24 years. Billy said that Grace completed multiple English courses over time, including university classes and various ESOL classes. He said that it was Grace who had initiated, investigated and led the entire will-making process for both of them. He confirmed that Grace prepared her own will, including the additional pages, in her own handwriting. He said he believed she was fully aware of the content of the will and understood its effect.
High Court judgment
The Judge was rightly concerned about the irrelevant and inappropriate material included in Michael’s affidavit and she set much of this to one side:[7]
[22] Before assessing whether the circumstances of the will arouse suspicion, it is necessary to deal with some preliminary points relating to the evidence. This case is unusual, due to the amount of conspiratorial, inflammatory, and speculative “evidence” tendered by Michael. The Court must ignore the inappropriate material, and focus solely on the relevant material.
[23] I set to one side the extremely unfortunate suggestions contained in [12] of Michael’s affidavit, which allege [Billy] may have been involved in [Grace’s] passing. I consider it is irresponsible of both Michael and his counsel to have included that speculation in the material before the Court.
[24] I also set to one side that the will made no provision for Michael. Freedom of testation means people can still make a valid will even if they do not provide for those with legitimate expectation. I also note here, in passing, that the will did not provide for Michelle either and she is neither contesting the will nor corroborating Michael’s suspicions.
[25] I also set to one side the suggestions that the will was a forgery because the hand writing on the two wills witnessed by Mr Benefield was similar. The important point here is that the deceased signed the document in Mr Benefield’s presence. The fact that [Billy] may have told the funeral director that there was no valid will is also immaterial, given the will was located by [Michael] and bore Mr Benefield’s signature.
[26] I also set to one side the fact that [Billy] was involved in the preparation of the will and was present at the purported execution of the wills. The fact [Billy] stood to benefit is not enough in and of itself to arouse suspicion. A testator or testatrix is able to get help from those they wish to benefit. However, suspicion can arise when there is cogent evidence of undue influence. I deal with this aspect below.
[27] Finally, I set to one side that [Grace] was financially dependent on [Billy]. That does not go to testamentary capacity.
[7]High Court judgment, above n 1.
The Judge said that left two allegations for the Court’s consideration. The first was whether Grace “could not have known and understood the terms and effect of the will, because it was expressed in English and her command of English was poor and insufficient for those purposes”.[8] The second was whether Grace “did not have any independent advice, and at the time of execution was in the presence of and under the undue influence of [Billy] (who was involved in forgery in Taiwan in respect of a property owned by [Grace])”.[9] The Judge went on to make a finding that Billy forged Grace’s signature on gifting documents in Taiwan some four months after her death and his credibility was therefore in question:
[29] These two matters do arouse the suspicion of the Court. They put [Grace’s] understanding and knowledge of the terms and effect of the will in question. [Grace] may also have been susceptible to the influence of [Billy], to the extent that she may have relied on him for translation as to these matters and as to the execution of the will.
[30] In this context, I am particularly concerned about what Michael discovered in September 2018 when he travelled to Taiwan. He went to claim his inheritance in a residential property that the deceased owned there. The Tai Bei Internal Revenue Service informed him that the house had been gifted by [Grace] to [Billy] on 23 May 2018. This was of course four months after [Grace’s] death. While [Billy] denied that took place, his denial was bald and he offered no explanation for the obvious irregularity. Thus, in light of the corroborating documentary evidence before the Court, I accept Michael’s evidence that [Billy] forged [Grace’s] signature on the relevant gifting documents.
[31] Regrettably, [Billy’s] credibility in relation to [Grace’s] affairs must be in question as a result.
[8]At [28(a)].
[9]At [28(b)].
The Judge then addressed the issue of whether Billy had dispelled the Court’s suspicions:
Has the scrutiny of those circumstances by the Court dispelled those suspicions?
[32] Michael said that [Grace] never had formal education or training and that her English was limited to basic simple greetings. In addition, he said she was by nature of an introverted and unsociable disposition, which limited her opportunities to learn English.
[33] By contrast, [Billy] said that [Grace’s] English was good enough for her to raise Michelle and Michael into adulthood, and run the family household. In addition, he said she completed multiple English courses throughout her lifetime, via university English classes and various English as a second language classes.
[34] I am unable – without the benefit of any third-party evidence about [Grace’s] understanding of English – to satisfy myself that [Billy] has established that [Grace] had the necessary command of the English language to understand the terms and conditions of the will and to approve them. Regrettably, I am not assisted by the limited evidence of Mr Benefield, who simply dealt with the identification process at the purported execution of the wills.
[35] In addition, I consider it is not axiomatic that just because a person has lived in New Zealand for 24 years, raised children, and attended to the running of the domestic household, that their command of English must be good enough to navigate testamentary matters in English. There are plenty of New Zealand citizens who do not speak or understand English, and are reliant on other members of their family to mediate external interactions for them.
[36] I have had regard to [Billy’s] evidence that [Grace] went and purchased the do-it-yourself will kits herself, which suggests a certain level of English language capability. However, given the concern I have about [Billy’s] credibility and influence over [Grace], this cannot be a determinative factor.
[37] It also seems somewhat unusual that [Billy] – while asserting [Grace] had university-level English qualifications and English as a second language qualifications – did not provide any proof of such qualifications.
The Judge stated that she had serious concerns about Billy’s motivations “in and around [Grace’s] testamentary actions”.[10] She said she could not be satisfied on the evidence as to Grace’s capability in English. Therefore, she could not be satisfied Grace knew and understood the terms of her will and approved them.[11] For these reasons, the Judge found that Billy had not discharged the onus on him “to affirmatively dispel the suspicions aroused” and to establish that the will should be declared valid.[12]
Grounds of appeal
[10]At [38].
[11]At [39].
[12]At [40].
Billy instructed new solicitors and counsel to appeal against the judgment. The amended notice of appeal lists four grounds, contending that the Judge erred in:
(a)finding she could not be satisfied that Grace knew and understood the terms of her will and approved them;
(b)accepting Michael’s evidence that Billy forged Grace’s signature on documents relating to the transfer of her property in Taiwan — these documents are in Chinese and no certified translation was provided to the Court;
(c)finding that, at the time of execution of the will, Grace was under the undue influence of Billy; and
(d)finding that Billy had failed to establish that the will should be declared valid.
Application to adduce further evidence
Billy applies for leave to adduce further evidence in support of the appeal. He contends that much of the further evidence is fresh. To the extent it is not fresh, he argues that there are exceptional and compelling circumstances justifying its admission. The evidence is said to be credible and cogent and he claims there is a risk of a miscarriage of justice if it is not received.
The further evidence comprises four affidavits, one each from Billy, Dr Catherine Mills, Elaine Wightman and Michael Maran.
Billy’s further affidavit
Billy states that he wants to restore honour and dignity to Grace by having her will recognised as expressing her last wishes. He says he also wishes to be able to clear his name after the Court accepted Michael’s allegation that he forged Grace’s signature on the Taiwanese gifting documents. He says this is simply not true. He adds that the gifting documents were completed under the guidance, and with the assistance, of legitimate legal personnel.
Billy’s affidavit is in two parts. In the first part, he sets out the instructions provided to his solicitors at the time for the purpose of preparing his affidavit in response to Michael’s affidavit in the High Court. In the second part, he produces further evidence he has obtained since the High Court judgment was released to respond to those allegations.
First part
Billy explains that he did not respond to several of Michael’s allegations in his reply affidavit because his solicitor told him that these should simply be denied as irrelevant to the issue before the Court. He said he trusted his solicitors’ judgment and followed their advice. He has waived privilege in respect of this advice and attaches an email his solicitor sent to Michelle (who helped Billy with the proceedings) on 31 July 2020 attaching the draft affidavit for him to complete in the High Court in response to Michael’s affidavit. This email states:
Hi Michelle,
We have prepared the attached affidavit for your Dad. Please have a read through and let us know if you or Dad require any changes.
After lots [of] discussion with another Court lawyer in our office, we have decided to keep the affidavit very brief to avoid getting drawn into a back and forth with Michael’s lawyer. That decision was also taking on board your comments about giving Michael as little information as possible etc. We think it is important to deny the allegations; but also make it clear in your view they are irrelevant to the current issue before the Court. The current information which you have provided has also given us plenty of preparation for any future stages.
Let us know your thoughts. If all is in order, your Dad can come into the office Monday to swear the affidavit so we can arrange filing.
Regards
(Emphasis in original.)
This email from Billy’s solicitors was sent after they had considered the detailed information provided by Michelle and Billy (six typewritten pages and various documents) in response to each of Michael’s allegations. Apart from responding to each allegation, they included further information about their family dynamics and the somewhat strained relationship Michael had with his parents, despite the substantial financial assistance Billy and Grace had provided to help him purchase his house. They described Michael’s forgery allegations regarding the property in Taiwan as being “wild accusations with nothing to support” and nothing more than an attempt to “derail the case and make it a lengthier process”. They advised the solicitors that all legal matters in Taiwan were attended to under the guidance of legitimate legal personnel.
Copies of various documents evidencing Grace’s proficiency in English were provided. Billy explained that Grace had been a journalist and editor in Taiwan. In 1995, a little over a year after arriving in New Zealand, she attended a one-year intermediate English class at Auckland University of Technology. When the family moved to Rotorua, she continued with her English studies, including by attending ESOL classes at Rotorua Girls’ High School and Rotorua Lakes High School in 1998 and 1999. Samples of Grace’s marked homework were provided. These included teacher comments such as (in February 1995) “[t]his is very good writing, Grace. See if you can correct your very few errors. Well done” (emphasis in original). The material sent to the solicitors also included a draft will Grace had prepared with notes she had written in Chinese translating words such as “Executors and Trustees”, “vested interest”, “retain” and “partition”.
Regarding Michael’s claim that the handwriting on the two wills was the same, Billy and Michelle instructed Billy’s solicitors that this was not the case and they would be happy to engage an expert to confirm this if necessary:
Michael does not recognize his own parents’ individual handwriting. As someone not close to the family, it is an understandable mistake. However, upon closer inspection, you will be able to see the individual differences. If any doubt, happy to do an expert examination.
Second part
Having covered the information provided to Billy’s solicitors at the time to enable them to prepare an affidavit in response to Michael’s affidavit, Billy refers to further information sourced following the judgment in answer to Michael’s claims. This includes a copy of Grace’s official academic record issued by the Auckland University of Technology showing that she passed the elementary level 3 English course in 1994, two intermediate level 4 courses in 1995 and, on 17 November 1995, obtained a level 4 Certificate in English language (intermediate). More examples of Grace’s handwriting evidencing her proficiency in English are provided. An example is a letter sent by an ophthalmic surgeon to Grace’s doctor, Dr Catherine Mills, on 28 November 2011 following a consultation with Grace that day. Grace was sent a copy of this letter. Grace’s copy shows that she translated words she was unsure of, writing alongside them in Chinese — translating, for example, “intraocular”, “meibomian gland seborrhoea”, “discs of 0.3 bilaterally”, “reassured” and “not sinister”. An extract from a publication about glaucoma is also attached. This similarly shows that Grace underlined and translated words she was unsure of into Chinese — for example, “peripheral”, “navigate obstacles”, “detected” and “concave”. Billy also attaches a photograph of seven English-Chinese dictionaries that Grace had in the house and used for translation purposes.
Dr Catherine Mills’ affidavit
Dr Mills is a general practitioner practising in Rotorua. She saw Grace on a number of occasions from 1998 to 2014, although she says she did not know her well. Dr Mills does not speak Mandarin and says she would have arranged for an interpreter if she had any significant concerns about Grace’s ability to understand what she was saying. Dr Mills states that Grace’s answers to her questions, which she recorded in her patient notes, show that her English was sufficient for her to communicate about her medical issues. She does not agree with Michael’s claim that Grace’s English was “limited to simple, basic greetings”.
Elaine Wightman’s affidavit
Ms Wightman has known Billy and Grace since February 2011, when she spent a weekend at their house with Michelle, her friend. Ms Wightman and Michelle moved to Melbourne later that year and she says that Billy and Grace came to stay with them for a month at a time on several occasions. Ms Wightman describes periods when she spent time alone with Grace. She says her English was “certainly not limited to basic simple greetings”. She says they spoke “about all sorts of things, including religion, food and cleaning the house”. She says it was clear to her that Grace:
… very much owned and controlled her own voice and that [Billy] a lot of the times took the backseat, so to speak. [Grace] ran the house and conversations pertaining to it. I never saw anything that would lead me to even suspect that she was ever unduly influenced by [Billy] — she was no push-over and would share her opinions and stick up for them.
Michael Maran’s affidavit
Mr Maran is an experienced professional handwriting and document examiner. He was asked to examine the handwritten and printed wills of Grace and Billy and give an opinion as to whether they were written by the same person. He was also asked to compare the handwriting in Grace’s will to 10 other documents containing her handwriting. Mr Maran concluded that, based on the Guidelines for Members of the Scientific Association of Forensic Examiners (USA), there was a “strong probability” that Grace’s will was written by her. In reaching this conclusion, Mr Maran identified 11 recurring similarities between the handwritten contents of Grace’s will and the exemplar writings provided to him. Mr Maran explained that the guidelines contain a qualitative scale ranging from level 1 — identification (conclusive and strongest opinion of identity) to level 7 — elimination (also conclusive but strongest opinion of rejection). He states that his level 2 assessment — “strong probability did write” — was the highest degree of certainty he could reach without examining the original documents (the original will is on the court file).
Opposition
Michael opposes the application to adduce this further evidence. He says it is not fresh, nor is it cogent and “suspectable”. He contends there are no exceptional or compelling circumstances justifying the receipt of this evidence. In his affidavit in opposition, Michael addresses various issues in response to Billy’s affidavit. However, none of this is relevant to whether Grace approved the terms of her will and it is therefore not necessary to recount it here. Michael then responds to the affidavits from the other three witnesses. He says he does not accept Mr Maran’s expert findings that it is strongly probable that Grace did write her own will. Michael asserts it is doubtful the reference documents provided by Billy to Mr Maran are in Grace’s handwriting. He also challenges the cogency of Dr Mills’ affidavit by making the extraordinary claim that his mother “must [have] done a lot of preparation before she visited GP, preparing in advance how to explain her symptom[s] and how to answer questions in English”. As to Ms Wightman’s evidence, Michael invites the Court to disregard it on the basis that she has a close relationship with Michelle, having lived with her for more than 10 years.
Legal principles
Rule 45 of the Court of Appeal (Civil) Rules 2005 permits the Court to grant leave for the admission of further evidence on questions of fact. The principles to be applied are clear and long-established. Parties must put their best case forward at trial. Save in exceptional circumstances, further evidence will not be admitted on appeal unless it is fresh, credible and cogent. Evidence is fresh only if it could not, with reasonable diligence, have been adduced at trial. Evidence that is not fresh may be admitted, but only where there are exceptional and compelling circumstances. These principles are strictly applied in the civil context to serve the strong public interest in ensuring finality in litigation and that court resources are not wasted.[13]
Assessment
[13]Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192 and 193, cited with approval in Paper Reclaim Ltd v Aotearoa International Ltd [2006] NZSC 59, [2007] 2 NZLR 1 at [6].
None of the evidence sought to be adduced on appeal is fresh. With reasonable diligence, it could have been obtained at the time of the hearing in the High Court. Indeed, as we have seen, some of it was obtained and provided to Billy’s solicitors at that time. It was not adduced because it was not thought to be relevant. If Billy’s solicitors’ assessment was correct, it would follow that the evidence is not cogent either.
Nevertheless, for the reasons set out below, we consider there are exceptional circumstances in this case that justify the receipt of the further evidence in the interests of justice.
First, we consider that Michael’s hearsay evidence regarding the alleged gifting of the Taiwan property in May 2018 is irrelevant to the issue of whether Grace understood and approved the contents of the will she signed 21 months earlier in September 2016. As a matter of logic, knowing whether or not Billy forged Grace’s signature on a gifting document in May 2018, four months after her death, cannot shed any light on whether she approved the contents of her will on 7 September 2016. We therefore consider it was reasonable for Billy to respond to this allegation, in accordance with his solicitors’ advice, by denying it and asserting it was irrelevant. This is not a case where, through lack of diligence, a party has failed to put his best case forward at trial. Rather, it is a case where a party has endeavoured to respond appropriately to scandalous and irrelevant accusations.
Secondly, despite the evidence being strictly irrelevant to the issue before the Court, it was ultimately determinative. The Judge reasoned that because Billy’s “denial was bald and he offered no explanation for the obvious irregularity”, she would accept Michael’s (hearsay) evidence that Billy committed forgery in Taiwan four months after Grace’s death.[14] Having made that finding, the Judge said that Billy’s “credibility in relation to [Grace’s] affairs must be in question as a result”.[15] Billy was unable to overcome this credibility deficit in the absence of independent corroborative evidence. It can be inferred that had it not been for the adverse forgery finding undermining Billy’s credibility, the evidence would have been considered sufficient to justify the will being validated.
[14]High Court judgment, above n 1, at [30].
[15]At [31].
Thirdly, there is a serious risk of a miscarriage of justice occurring if the further evidence is not received. The forgery finding is highly damaging to Billy’s reputation. It was made on the basis of hearsay evidence, in the face of Billy’s denial, without the benefit of cross-examination, and in the context of what might normally be expected to be a fairly routine application to validate a will. We do not consider the forgery finding was necessary or appropriate. It can reasonably be assumed that Billy’s solicitors would not have given the advice they did as to the proper scope of the reply evidence if they had appreciated the possibility that an adverse finding, amounting to serious dishonesty, might be made against their client. There is also a risk of a miscarriage of justice occurring if the evidence is not admitted because of its importance to the outcome of the substantive application in the circumstances that have transpired.
The application to adduce the further evidence is accordingly granted.
Should the will be validated?
Both parties made it clear to us at the hearing that they do not want the matter to be remitted back to the High Court for a re-hearing so that the witnesses can be cross-examined. We agree that this is a sensible approach and that the matter can be determined without requiring this.
We consider the evidence establishes to the requisite standard that Grace knew and understood the terms of her will and approved those terms. We are satisfied that Grace’s English was not limited to basic, simple greetings and that she had sufficient command of the English language, using dictionaries as necessary, to be able to understand the contents of her will. Mr Maran’s evidence confirms that the two wills were not written by the same person. His evidence satisfies us that Grace wrote the handwritten sections of her will herself. There is nothing about the terms of the will or the circumstances in which it was prepared and executed to arouse the slightest suspicion that it did not express Grace’s testamentary intentions. What may or may not have happened in Taiwan nearly two years later is irrelevant to this issue.
Result
The application to adduce further evidence is granted.
The appeal is allowed.
We make an order declaring the will of Grace Li-Fang Tang dated 7 September 2016 valid.
The respondent must pay costs to the appellant for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Davidson Legal, Christchurch for Appellant
Leslie Hills Law, Christchurch for Respondent