Sun v Sun
[2020] NZHC 2414
•16 September 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-000193
[2020] NZHC 2414
IN THE MATTER OF the Estate of Grace Li-Fang Tang BETWEEN
BILLY YUEN-KUEN SUN
Applicant
AND
MICHAEL CHIN-CHEN SUN
Respondent
Hearing: 7 September 2020 Counsel:
C E Finn and K N Williamson for the Applicant S Sun for the Respondent
Judgment:
16 September 2020
JUDGMENT OF DOOGUE J
This judgment was delivered by Justice Doogue on 16 September 2020 at 3.00 pm.
Registrar/ Deputy Registrar Date:
Solicitors:
Crown Law, Wellington
RE THE ESTATE OF GRACE LI-FANGTANG [2020] NZHC 2414 [16 September 2020]
Introduction
[1]Grace Li-Fang Tang (the deceased) died in Christchurch on 27 January 2018.
[2] The deceased was survived by her husband, the applicant, Mr Billy Yuen-Kuen Sun (Mr Sun), and their two children: a daughter, Ms Michelle Chin-Jou Sun (Michelle); and a son, the respondent, Mr Michael Chin-Chen Sun (Michael).
[3] Mr Sun seeks an order declaring an irregularly witnessed purported will dated 7 September 2016 (the will) to be the valid last will and testament of the deceased. The will does not comply with s 11(4) of the Wills Act 2007 (the Act), as it has only been witnessed by one witness.
[4]Michelle consents to the application. Michael does not.
Factual background
The will
[5]By the will, the deceased appointed Mr Sun the sole executor of her will.
[6]The will vests the deceased’s estate in Mr Sun absolutely.
Long term context
[7] Mr Sun and the deceased were married for 35 years. They migrated to New Zealand from Taiwan in 1993. Mr Sun was a tour guide and spent significant time away from the family home. Thus, he and the deceased spent significant periods of time apart.
[8] On the afternoon of 29 January 2018, Michael received a text from Mr Sun, who was working in Queenstown. Mr Sun told Michael that he had not been able to raise the deceased by phone for some days and asked him to check on her. Michael went to the family home, and found that the deceased had passed away. He called all the relevant authorities to report the death. In his affidavit he recalled that while the first responders were attending the scene:
We found a copy of my mother’s irregular Will on top of the writing desk of the master bedroom in a very easy eye-catching position, we found two original irregular Wills of my father and my mother in a file box under the writing desk…
Circumstances surrounding the execution of the will
[9] Mr Sun said that in late August-early December 2016, he and the deceased decided they should complete New Zealand wills. The deceased went to a local bookstore, and purchased “The New Zealand Will Kit”, designed to assist people to create their own wills. Mr Sun said they discussed their respective wishes and they filled out the standard forms, with Mr Sun adding one additional page to his and the deceased adding two additional pages to hers.
[10] Mr Sun said they knew the wills needed to be witnessed, and contacted their local Justice of the Peace, Mr John Benefield, and made an appointment to execute their wills before him. They saw him on 7 September 2016.
[11] Mr Benefield established proof of their identity through sighting their passports, witnessed them each signing their respective wills (including the additional pages) and completed one of the two witness attestations. He signed his name in full on the first and last pages of the documents and initialled at the bottom of each of the remaining pages. His JP stamp and his signing stamp are throughout the document.
[12] Somewhat unusually, Mr Benefield did not advise the deceased and Mr Sun of the legal necessity of having two witnesses to their signatures. They both thought mistakenly that they had fulfilled the requirements of making valid wills.
[13] Mr Sun said that following the appointment with Mr Benefield, they placed their wills in the safe at their home.
Submissions
The applicant’s submissions
[14] Ms Finn, counsel for Mr Sun, submitted that “but for” the failure to have the will witnessed by a second witness, the will would be valid. She submitted that the
Court could be satisfied, on the balance of probabilities, that the will expressed the deceased’s testamentary intentions.
The respondent’s submissions
[15] Ms Sun, counsel for Michael, submitted that the circumstances surrounding the execution of the two wills are so suspicious that there can be no presumption that the wills were validly executed “but for” the lack of a second witness. She submitted that Mr Sun cannot affirmatively prove that the deceased knew and approved the contents of the will.
Relevant Law
[16] Section 11 of the Act sets out the requirements for validity of wills. Section 11(4) provides:
11 Requirements for validity of wills
…
(4)At least 2 witnesses must—
(a)be together in the will-maker’s presence when the will-maker—
(i)complies with subsection (3); or
(ii)acknowledges that—
(A) he or she signed the document earlier and that the signature on the document is his or her own; or
(B) another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b)each sign the document in the will-maker’s presence.
[17] Section 14 of the Act provides that the High Court may declare a will valid 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.
(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.
[18] In the ordinary case, the question for the Court is simply: is the Court satisfied that the document expresses the deceased’s testamentary intentions? This question does not import any particular standard or burden of proof.1
[19] In cases such as this where suspicious circumstances are alleged, the relevant questions for the Court are:
(a)Do the circumstances of the will arouse the suspicion of the Court as to whether its contents represent the wishes and intentions of the deceased and were known to and approved by her?
(b)Has the scrutiny of those circumstances by the Court dispelled those suspicions?
[20] The respondent’s counsel helpfully referred me to a line of English authorities, and I took guidance from the following remarks of Mummery LJ:2
13.In answering those questions in a particular case the court has to consider and evaluate the totality of the relevant evidence, from which it may make inferences on the balance of probabilities. Although talk of presumptions and their rebuttal is not regarded as specially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed.
1 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [96].
2 Burgess v Hawes [2013] EWCA Civ 74.
14.I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or inform or in receipt of help from those they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death
[21] The comments of Peter Gibson LJ in Fuller v Strum are also helpful, as they deal with the test to be applied where suspicions are aroused concerning the circumstances in which a will was executed:3
What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be “vigilant and jealous” in examining the evidence in support of the will.
Analysis
[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 Mr Sun may have been involved in the deceased’s passing. I consider it is irresponsible of both Michael and his counsel to have included that speculation in the material before the Court.
3 Fuller v Strum [2001] EWCA CIV 1879 at [33].
[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 the 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 Mr Sun may have told the funeral director that there was no valid will is also immaterial, given the will was located by the respondent and bore Mr Benefield’s signature.
[26] I also set to one side the fact that Mr Sun was involved in the preparation of the will and was present at the purported execution of the wills. The fact Mr Sun 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 the deceased was financially dependent on Mr Sun. That does not go to testamentary capacity.
Do the circumstances of the will arouse the suspicion of the Court as to whether its contents represent the wishes and intentions of the deceased and were known to and approved by her?
[28] The two remaining allegations for the Court’s consideration are that the deceased:
(a)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; and
(b)did not have any independent advice, and at the time of execution was in the presence of and under the undue influence of Mr Sun (who was
involved in forgery in Taiwan in respect of a property owned by the deceased).
[29] These two matters do arouse the suspicion of the Court. They put the deceased’s understanding and knowledge of the terms and effect of the will in question. The deceased may also have been susceptible to the influence of Mr Sun, 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 the deceased to Mr Sun on 23 May 2018. This was of course four months after the deceased’s death. While Mr Sun 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 Mr Sun forged the deceased’s signature on the relevant gifting documents.
[31] Regrettably, Mr Sun’s credibility in relation to the deceased’s affairs must be in question as a result.
Has the scrutiny of those circumstances by the Court dispelled those suspicions?
[32] Michael said that the deceased 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, Mr Sun said that the deceased’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 the deceased’s understanding of English – to satisfy myself that Mr Sun has established that the deceased 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 Mr Sun’s evidence that the deceased 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 Mr Sun’s credibility and influence over the deceased, this cannot be a determinative factor.
[37] It also seems somewhat unusual that Mr Sun – while asserting the deceased had university-level English qualifications and English as a second language qualifications – did not provide any proof of such qualifications.
Conclusion
[38] I have serious concerns about Mr Sun’s motivations in and around the deceased’s testamentary actions.
[39] I cannot be satisfied on the evidence before me what capability the deceased had in the English language, and therefore I cannot be satisfied that she knew and understood what the terms of her will were, and that she approved of them.
[40] In those circumstances, Mr Sun has failed to discharge the onus on him to affirmatively dispel the suspicions aroused. Mr Sun has failed to establish that the will should be declared valid.
Result
[41]The application is dismissed.
[42]Costs are reserved.
Doogue J