Tamarapa v Byerley

[2014] NZHC 1082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-485-010020 [2014] NZHC 1082

IN THE MATTER

of the estate of Kenneth John Gray

BETWEEN

CLAIRE VIRGINIA TAMARAPA Applicant

AND

JANICE BYERLEY and WANDA JEAN HASKELL

Respondents

Hearing:	16 April 2014
Appearances:	No apperance for the Applicant No appearance for the Respondents
Date:	21 May 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by  on 21 May 2014 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

TAMARAPA v BYERLEY and ANOR [2014] NZHC 1082 [21 May 2014]

[1]      This is an application seeking an order under s 14 of the Wills Act 2007 (the “Act”) declaring an unsigned document in the form of a will to be the valid will of Kenneth John Gray.  Mr Gray died on 22 April 2013 aged 88 years.

Background

[2]      Mr Gray executed a will dated 8 November 1999 (“the 1999 will”), drafted

on his instructions by his solicitors, Cairns Slane.

[3]      The applicant, Claire Virginia Tamarapa, formerly known as Claire Virginia

Millar, was appointed the executor and beneficiary.

[4]      Under the will the applicant was to receive a legacy of $2,000 with the residue of the deceased’s estate passing to his only sibling, his older sister, Joan Williams.

[5]      Joan Williams was resident in the United States.  She had two daughters, the defendants, Janice Byerley and Wanda Jean Haskell.  They are both resident in the United States.  Janice Byerley lived with her mother.

[6]      The applicant first met and befriended Mr Gray after she purchased a florist shop in Ellerslie in May 1997.  Mr Gray lived nearby in a Housing Corporation unit at 182A Ladies Mile, Ellerslie.

[7]      The applicant welcomed him into her family and included him on occasions such as Christmas and birthdays.

[8]      In 1999, Mr Gray asked the applicant if she would be prepared to be the executor of his will.  She agreed but never received a copy.

[9]      Over the following years, Mr Gray’s health deteriorated due to emphysema. The applicant maintained close contact with him, visiting him, cooking meals, taking him to doctors’ and hospital appointments and telephoning him on an almost daily basis.  As a consequence, Mr Gray was able to continue to live independently until his death.

[10]     Although there was no direct discussion between Mr Gray and the applicant on the subject of his will, he did indicate that the applicant’s kindness towards him would be rewarded after his death.

[11]     Following his death, the applicant, with the help of her husband, organised Mr Gray’s funeral, packed up his possessions, cleaned and cleared out his unit.  The applicant was aware Mr Gray had a sister living in the United States although, at the time of Mr Gray’s death, his sister had already died.

[12]     On Mr Gray’s death, the applicant contacted Janice Byerley who she knew resided at the same address as Joan Williams.  The applicant told Ms Byerley about her uncle’s death and the proposed funeral arrangements.  She had no contact from either Ms Byerley or Ms Haskell after that time, despite sending a card describing the funeral and sending all of Mr Gray’s photographs and other memorabilia she felt might have sentimental value to the defendants.

[13]     In the course of clearing up Mr Gray’s possessions the applicant searched for his will.  She found an envelope dated 8 November 1999 recording the original will was deposited with Cairns Slane, solicitors of Auckland.   The envelope contained another envelope on which was written the words:

To Dear Ginny Millar.

[14]     Inside the envelope was a handwritten note which read:

Dear Ginny

Please play at my funeral – ‘It’s Time To Say Goodbye’ and ‘Candle In The Wind’, followed by my record of Max Bygraves and old songs if it’s appropriate! (Cheer them up!).

Bye Bye Dear Ginny

I love you and will miss you. Think

of me sometime and

have a happy life.

You were a great friend. (Sorry I was an old bore).

Love Ken

xx

PS. Might see you one day.

(Thanks for everything)

[15]     There was also a copy of the 1999 will with another handwritten note stapled to the front dated 15 April 2002 which read:

To Whom it may concern –          Claire Virginia Millar I leave all my entire chattels

money cancelling the part in

my Will which leaves some

to my sister Joan and nieces.

Everything I leave to Claire Virginia Millar.

I am in right mind & soul. Thanking you

K. J. Gray

15/4/2002

[16]     As a consequence of finding these documents, the applicant contacted Cairns

Slane.   She was advised that Cairns Slane had received a letter from Mr Gray in

2004 and as a consequence of the instructions contained in it the solicitors had drawn up a new will and sent it to Mr Gray at 182A Ladies Mile.

[17]     The handwritten letter of instruction to Cairns Slane, with a received date of

30 September 2004, read as follows:

Tuesday 28th. 04

Cairns & Slane

Barristers & Solicitors

Dear Sirs

I have a few changes to my Will.   Delete paragraphs about any Sister, & nieces.   I leave  everything to Claire Virginia Millar, & she is my only executor and trustee of my Will.

As I have not a lot of money – enough to pay for my funeral & a little bit extra, there is not enough money & assets to be divided between my sister & nieces.  I have no property, no car, no shares, so therefore leave everything to Claire Virginia Millar.

I will trust you will adjust my Will.

Yours faithfully

K. J. Gray

(age 79)

Sis ter ’s  a ddr ess  –

Mrs D J Williams (87) - age

7475, 61st Ave, N. E Cands, 58324

North Dakota, U. S. A.

Phone [phone]

[18]     Attached to this letter was a photocopy of the 1999 will with handwritten amendments.  Clause 3, which gifted $2,000 to the applicant, was crossed out as was clause 4 which related to the residue of the estate being left to Joan Williams. Underneath  the  name  of  the  applicant  in  clause  2  was  an  address,  14  Riddell Crescent, Bucklands Beach, phone [phone], Auckland.  In 2004, the applicant was not living at that address although the telephone number was hers.

[19]     When Mr Gray’s letter was received by Cairns Slane, a new will, consistent with his instructions, was prepared.

[20]     The new will consisted of only four clauses:

(a)       Clause 1 revoked all earlier wills made by Mr Gray.

(b)Clause 2 provided that if the applicant was alive seven days after the testator’s death, the whole of his estate would go to her.  This clause also appointed the applicant the sole executrix.

(c)      Clause 3 provided that if the applicant did not survive the deceased by seven days, his sister was appointed executor and trustee of the will and would receive the whole of the estate.

(d)      Clause 4 directed that his body was to be cremated.

[21]     Mr  Gray’s  solicitors  forwarded  the  2004  will  to  Mr  Gray’s  last  known address at 182A Ladies Mile.   However, inexplicably, the letter was returned undelivered.   The solicitors then wrote to the applicant at 14 Riddell  Crescent, Bucklands Beach which was the handwritten address on the amended 1999 will. The applicant was, at that time, living at a different address and so, again, the solicitor’s correspondence was returned undelivered.   The solicitors then rang the telephone number recorded underneath the handwritten note.   This was also unsuccessful, probably because  the  telephone  call  was  made  during  working  hours  when  the applicant was not at home.

[22]     Thus, despite the new will being prepared in accordance with Mr Gray’s

instructions and plain testamentary intentions, it was never executed.

Jurisdiction and applicable principles

[23]     Section 14 applies because the 2004 unsigned will plainly purports to be a will  but  in  a  number  of  material  aspects  does  not  comply with  the  formalities required by s 11. Although the 2004 unsigned will was prepared prior to the passing of the Wills Act 2007, s 14 applies as the date of the will is no longer a relevant factor since the passing of s 5 of the Wills Amendment Act 2012.

[24]     Section 14 permits this Court to make an order declaring a document to be a valid will if it is satisfied the document expresses the testamentary intentions of the deceased.  In deciding whether to make such an order, the Court may consider the wording of the document, evidence as to the manner in which the document is signed and  witnessed,  evidence  as  to  the  testamentary  intentions  of  the  deceased  and

evidence of any statements the deceased may have made relevant to the issue.1

[25]     McKenzie J commented on the utility of s 14:2

The power to validate a will given by s 14 of the Wills Act 2007 has been a most valuable and beneficial addition to the powers of the Court to ensure that the clearly expressed testamentary intentions of a deceased person are not frustrated by deficiencies in the formal requirements for execution.

1 Wills Act 2007, s 14(3).

2 Re: Estate of Beaumont [2013] NZHC 2719, at [10].

[26]     Given  that  the  primary  enquiry  under  s  14  is  whether  the  document  in question expresses the testamentary intentions of the deceased, the length of time between the giving of the instructions and the death of the testator is a factor which requires examination.

[27]     In Re:  Hickford (Deceased) there was a significant temporal gap between the creation of the document containing the instructions and the date of the death of the testator. 3   In that case the document, as in the present case, was a draft unsigned will. McKenzie J considered three possibilities as to why the deceased did not make an appointment to sign the will, namely:4

(a)      he had changed his mind about making a will; or (b)      he overlooked or forgot about signing the will; or (c)      he did not think he needed to do anything.

[28]     Of the three possibilities, his Honour stated:5

Clearly, the first possibility would mean that the document did not express his testamentary intentions.   In my view, the second possibility might not meet the statutory test.  I consider that the third possibility would meet the test.  If the deceased thought that he had made an effective will and that the reason that the document was unsigned was a mistaken view that everything necessary had been done, the Court could be satisfied that the document did express  the  deceased’s  testamentary  intentions  despite  the  lack  of  a signature.

[29]     In Estate of Cornelius Allan J was faced with an application to declare a will valid where there had been a significant delay between the giving of the instructions and the death three years later. 6    Allan J found the deceased never got around to executing the will which had been prepared for him.  He concluded it reflected the

deceased’s testamentary intentions.

3 In Re: Hickford (Deceased) HC Napier CIV-2009-441-000369; 13 August 2009

4 At [9].
5 At [10].

6 Re Cornelius HC Auckland CIV-2012-404-341, 28 March 2012.

Decision

[30]     The  document  prepared  by  Cairns  Slane  in  2004  does  not  meet  the requirements of a will under the Act because it is not signed and witnessed in accordance with the requirements of the Act.7

[31]     However, on the evidence before me, the 2004 document is, in all other

material respects, a will.  Certainly, it was intended to be Mr Gray’s last will.

[32]     It was not executed because, for reasons which are not entirely clear, the document was never received by Mr Gray nor was its existence conveyed to the applicant, despite a number of efforts to do so.

[33]     Nevertheless, the document was Mr Gray’s will in every respect other than its execution.

[34]     Further  support  that  this  document  reflects  the  testamentary  intention  of

Mr Gray is found in the following evidence:

(a)      The longstanding and close relationship between Mr Gray and the applicant.

(b)The various comments made to the applicant by Mr Gray and, in particular,  the  promise  her  kindness  would  be  rewarded  after  his death.

(c)       Mr Gray’s instructions to the applicant concerning that his funeral. (d)         The expressions of affection and gratitude contained in the notes.

(e)      The copy of the 1999 will with the handwritten note stapled to the front setting out the instructions that the applicant was to be left the entire estate and cancelling that part of the will relating to Mr Gray’s

sister and nieces.

7 Wills Act 2007, s 11(2)-(4).

(f)       The    handwritten   letter   of   instruction    to   Cairns    Slane    dated

28 September 2004  instructing his solicitors to  amend his  will by deleting the paragraphs regarding his sister and nieces and leaving everything to the applicant.

[35]     I am satisfied that s 14 applies in that the 2004 document appears to be a will, does not comply with the requirements set out in s 11 and came into existence in New Zealand.

[36]   In determining whether the 2004 document expresses the testamentary intentions of Mr Gray, I must also turn my mind to the question of the delay between the creation of the document and Mr Gray’s death and, more particularly, notwithstanding that delay, whether the document expresses Mr Gray’s testamentary intentions.

[37]     The  delay  in  this  case  is  considerable.    Mr  Gray’s  solicitors  received instructions to make changes to his will in September 2004.  He died eight and a half years later not having signed the 2004 document which was prepared on his instructions.

[38]     From the chronology set out earlier in this judgment the 2004 document was sent to Mr Gray’s address but was, for some inexplicable reason, returned undelivered.   Attempts by the solicitors to make contact with the applicant also proved fruitless.

[39]     Of the three possibilities identified by McKenzie J in Re: Hickford, I am of the view that Mr Gray either overlooked or forgot about signing the will or he did not think he needed to do anything further.

[40]     Certainly,  in  my  view,  there  is  no  evidence  he  changed  his  mind  about making a will.  Indeed the evidence is to the contrary.  His friendship, dependence and reliance upon the applicant endured until his death.   Although the subject of Mr Gray’s will was never directly discussed between him and the applicant, he did indicate that the applicant’s kindness towards him would be rewarded after his death.

There is no evidence before me to suggest Mr Gray’s indications on that topic ever

changed after September 2004.

[41]     More particularly, the handwritten note dated 15 April 2002 demonstrates Mr Gray expressly turned his mind to amending his will in favour of the applicant. His testamentary intention remained consistent when he instructed his solicitors to amend his will more than two years later in September 2004.

[42]     His testamentary intention remained unchanged despite the fact he did not die for another eight and a half years.

Result

[43]     Considering the matters referred to above and in particular in [34] of this judgment, I am satisfied the 2004 document expresses Mr Gray’s testamentary intentions and I make an order under s 14 declaring the said document to be the valid

will of Kenneth John Gray.

Moore J

Solicitors:

Cairns Slane, Auckland