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…