Winterburn v Wilson [2016] NZHC 1422 (28 June 2016)

High Court of New Zealand

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Winterburn v Wilson [2016] NZHC 1422 (28 June 2016)

Last Updated: 8 July 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000767 [2016] NZHC 1422

BETWEEN	JEROME RANGI WINTERBURN AND NGAIRE PEARL ARCUS Plaintiffs
AND	DAVID JAMES WILSON Defendant

Hearing:	25 May 2016
Appearances:	J M Stringer for Plaintiffs D R Weatherley for Defendant
Judgment:	28 June 2016

_{JUDGMENT OF GENDALL J}

Introduction

[1] The plaintiffs, Mr Winterburn and Ms Arcus, are respectively the son and sister of the late Dawn Una Richards (“the deceased”) who died on 22 August 2014. Shortly before her death, the deceased provided her solicitor with instructions for a new will. Unfortunately, those instructions were not able to be transformed into the form of a properly executed will before the deceased died.

[2] This proceeding involves an application by the plaintiffs for a declaration under s 14 of the Wills Act 2007 (the Act) that documents before the Court (being handwritten notes and a signed will instruction sheet) constitute a valid will of the deceased. The plaintiffs were nominated by the deceased to be her trustees in these

_{notes and will instructions.}

WINTERBURN v WILSON [2016] NZHC 1422 [28 June 2016]

[3] The defendant, who was the de facto partner of the deceased and the sole beneficiary under a previous will of the deceased signed on 3 October 2003 (the

2003 will), opposes the present application.

Background

[4] On 12 August 2014, the deceased made an appointment with her solicitor, Mr Peter Tatham of Saunders & Co, solicitors, Christchurch, with regard to making a new will. In the meeting, the deceased brought along her copy of the existing will and some notes about what she wanted to put in her new will. The notes (the deceased’s notes) provided:

Ngaire Peal Arcus (Dawn’s Sister) Trustee Jerome Rangi Winterburn (Son) Trustee Properties- Home plus one rental

Life insurance Fisher Kiwi Saver Joint Savings

Vehicle, Motor-home, boat

Persona’ Jewelry (sic) – Jerome Rangi Winterburn & Rayomnd

Joel Winterburn to have full control of personal jewelry (sic), clothing and items

Maori land to be passed on to Jerome & Rayomd Winterburn

At the time of death I am to be cremated and my ashes are to be taken back to my hometown of Otaki by my sons, where my ashes will be scattered to the four winds from my sister Patricia’s grave site in Anzac rd, Otaki. A plaque is to be made and placed on my sisters (sic) grave with my full name, birth and death, my sons and grandsons names and a message that my boys would like to leave for me. Graham Orchards of Kapiti Funeral Directors is to oversee all funeral arrangements with my sons.

My funeral expenses are to come out of my estate

[5] While the deceased’s notes were quite specific about her assets and the gifts she wanted to make, they were not specific about how she wanted the rest of her estate distributed. Mr Tatham questioned her about that and the deceased told him she wanted to think about what she wanted to do.

[6] At the meeting, Mr Tatham himself made file notes (the file notes) on the discussion he had with the deceased. The file notes contained references to a rental property owned by a company called “Wilrich Enterprise Limited” (the company). According to Mr Tatham’s affidavit, Mr Wilson owned 99 shares and the deceased owned one share in the capital of the company. The file notes also included references to the de facto relationship of the defendant and the deceased. On this aspect, Mr Tatham had specifically noted:

De facto relationship 15 years

Last 2 years– shaky

[7] According to Mr Tatham, this was the primary reason why the deceased wanted to make a new will. He said in an affidavit filed in this Court that she had said she was planning on leaving the defendant.

[8] The deceased instructed Mr Tatham that the rental property owned by the company might be sold around Christmas, to retire mortgage debt of $80,000 over the family home.

[9] Mr Tatham advised the deceased that he would act for her in the preparation of the will, and a Letter of Engagement would be sent in the mail. Mr Tatham then printed off and gave the deceased a will instruction sheet to complete. This will instruction sheet (the will instruction sheet) is before the Court. It is a nine page document which asks 23 questions ranging from basic information as to the name and address of the testator, to what the testator’s assets are, to who are the testator’s family members, and finally to how the assets are to be distributed.

[10] Specifically, question 17 provided and was answered by the deceased as follows:

Who is to receive the bulk of your estate after the debts and gifts have been paid and provision made for any life interest?

A. Person

First name: Raymond Joel and Jerome Rangi

Surname: Winterburn

Relationship: Sons

Occupation- Plaster– Teacher

...

[11] Significantly, at the end of the will instruction sheet, the deceased signed an acknowledgement clause which read:

ACKNOWLEDGEMENT

Should I die before completing and signing a formal will before two witnesses I declare this document to be my last will and request the person or persons I want to be my executor(s) to apply for Probate of this Instruction Sheet as an informal will.

_{Dawn Una Richards}

[12] The next day, the deceased arrived at Mr Tatham’s office unannounced and without an appointment, having completed her will instruction sheet overnight. Mr Tatham was unable to see the deceased at that time. He asked her to leave the will instruction sheet with him. The deceased then told him that she would be going into hospital for minor surgery and that she would be out in two weeks time. At the time, Mr Tatham did not appreciate that her life was at risk.

[13] Sadly, the deceased passed away in the meantime, some nine days later on

22 August 2014, due to complications in the surgery.

[14] The plaintiffs seek to validate as the deceased’s last will:

(a) The deceased’s (handwritten) notes prepared and brought to the meeting on 12 August 2014

(b) The file note of Mr Tatham prepared at that same meeting

(c) The will instruction sheet completed by the deceased overnight and returned to Saunders & Co on 13 August 2014.

[15] The defendant, as I have noted above, opposes this validation.

Law

[16] Section 14 of the Wills Act 2007 (“the Act”) provides:

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.

[17] MacKenzie J in Re Campbell has given helpful commentary and guidance on the application of the Wills Act. His Honour held:¹

[4] Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills. Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode of expression did not comply with the formalities that the law required. Section 14 has been very beneficial in avoiding that outcome. Its utility has been demonstrated by the fact that it has been invoked in over 80 cases since 2007.

[18] Research is noted in Re Campbell that there had been a preponderance of successful applications for validation made under s 14 right up to July 2014. While each case must always be specific to its own facts, MacKenzie J recognised that this indicated that the evidential burden on s 14 applications is not subject to a high threshold. MacKenzie J went on to remark that it is clear that s 14 should be

_{considered a remedial provision, and that where there is evidence of the deceased’s}

¹ Re Campbell, [2014] NZHC 1632, at [4].

testamentary intent, it is better to give effect to that intent in preference to giving effect to any previous wills.² And, on this aspect in a later decision in this Court, Davidson J held in Re Kirner:³

[22] It appears from a review of the authorities that a robust approach to such applications has been taken. While the s 14 power is both broad and remedial in purpose, the adoption of a robust approach still requires the Court to carefully consider whether the evidence put before it, considered in aggregate, is such that it can be satisfied that the document put before it, said to be a will, does actually reflect the testamentary intentions of the deceased.

[19] Since this new regime was introduced by the Act it has also been the subject of significant academic and other judicial discussion. An article by Professor Peart,⁴ often referred to in judicial decisions,⁵ discussed how the Act had ushered in much needed changes to the law governing wills. Professor Peart explained that the two fundamental principles that underpin the law governing wills are first, the need to uphold the ascertainable intentions of will-makers and second, the need to ensure

that care is taken “in determining whether what is claimed to be an expression of a will maker’s wishes is genuinely so”. This is because a will only operates after the death of the testator.⁶ Prior to the new regime, and due to perhaps what might have been seen as an over-emphasis on the second principle noted above, arguably the Courts had often rejected plain intentions of testators due to technicalities and minor mistakes.⁷ The principle aim of the new Act was therefore to “enable better effect to the ascertainable intention of the will-makers”.⁸ The focus is now to be on the substance of the documents in question rather than their strict form.

[20] On all of this, however, before me counsel for the defendant urged caution in relying on prior High Court decisions validating documents under s 14. This is because most of those applications were made either on a consented basis or without notice. The defendant contends therefore that those cases were not thoroughly tested

_{in the past as they might have been.}

² _{At [18].}

³ _{Re Kirner [2015] NZHC 1837 at [22].}

⁴ _{Nicola Peart “Where there is a will there is a way” [2007] WkoLawRw 4; (2007) 15 Waikato L Rev 26.}

⁵ See for example: Re Campbell [2014] NZHC 1632, [2014] 3 NZLR 706; Re Feron [2012]

_{2 NZLR 551.}

⁶ _{Nicola Peart, above n 4, at 27.}

⁷ _{See for example: Re Colling [1972] 3 All ER 729, [1972] 1 WLR 1440.}

⁸ Nicola Peart, above n 4, at 27.

[21] However, as I see it, this concern advanced by the defendant was specifically addressed by MacKenzie J in Re Campbell. In that case His Honour recognised the implications of a without notice application on beneficiaries who had not opposed the application. In response, His Honour appointed the Solicitor General as amicus to aid in his decision.⁹ I therefore do not accept the defendant’s submission insofar as it might suggest that this particular decision cannot be relied upon.

Discussion

Preliminary requirements

[22] In order to engage with s 14 of the Act, three preliminary requirements must first be met. These gateway provisions are first, that the document must appear to be a will, secondly, that the document does not comply with s 11, and thirdly, that the document came into existence in or out of New Zealand.¹⁰

[23] No issues arise here as to the second and third requirements. None of the three documents in question comply with the formalities under s 11. The hand written notes and the solicitor’s file notes were not signed by the deceased nor witnessed. And while the will instruction sheet was signed by the deceased, there is no evidence to show that it was signed in the presence of two witnesses.

[24] As to whether the documents appear to be a will, the defendant has raised a preliminary issue before me. This is to the effect that the word “document” stated in the Act is described only in the singular and here the plaintiffs are endeavouring to validate three separate documents as the deceased’s last will. In my view, this argument is quickly disposed of as it overlooks s 6 of the Act. This defines “document” to mean “any material on which there is writing”. The noun “material”

is defined in the Chambers Dictionary¹¹ to include “equipment, implements, etc

needed for a task or activity”. This necessarily, as I see it, is not singular and imports the plural. In addition, s 33 of the Interpretation Act 1999 states that “words in the

⁹ _{At [6].}

¹⁰ _{Wills Act 2007, s 14(1).}

¹¹ Chambers Dictionary 11^th Ed.

singular include the plural and words in the plural include the singular.”¹² And, there have already been established precedents that permitted material written at different times to together be declared a will under s 14. For example, in Re Feron, the Court validated a solicitor’s file note and a subsequent email from the deceased as together comprising a document for the purposes of s 14.¹³ Therefore, in my view, no issues arise as to the plaintiffs’ application here to validate all three documents as the will of the deceased.

[25] MacKenzie J also observed in Re Campbell on this requirement that the documents concerned must appear to be a will, that this is concerned with the content of the document and what it conveys, rather than its form.¹⁴ The essential inquiry is whether the document does any or all of the elements described under s 8(b) of the Act, which states:¹⁵

Meaning of will

(1) Will means a document that-

(a) is made by a natural person; and

(b) does any or all of the following

(i) disposes of property to which the person is entitled when he or she dies; or

(ii) disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or

(iii) appoints a testamentary guardian.

[26] All three documents in the present case purport to dispose of property of the deceased. I am therefore satisfied that the gateway provisions in s 14(1) are met. The essential issue to be determined by the Court here remains whether under s

_{14(2), the documents express the deceased’s testamentary intentions.}

¹² _{Interpretation Act 1999, s 33.}

¹³ _{Re Feron, above n 5.}

¹⁴ _{Re Campbell, above n 1, at [11].}

¹⁵ Wills Act 2007, s 8.

Do the documents express the deceased’s testamentary intentions?

[27] In order to declare the documents valid, I must be satisfied on the balance of probabilities that they express the testamentary intent of the deceased, having regard, but not limited, to the documents, evidence of signing and witnessing the documents, evidence of the deceased’s testamentary intentions and evidence of statements made by the deceased.¹⁶

[28] As to the evidentiary function, the Court must be satisfied on the balance of probabilities that the documents clearly demonstrate testamentary intent. On this aspect, MacKenzie J held in Re Campbell:¹⁷

[22] ... it has been said by this Court that there must be cogent evidence that the document reflects the deceased’s persons testamentary intentions (Re: Hickford) and (Gladwin v Public Trust). The need for cogent evidence is inherent in the requirement that the Court must be satisfied that the document expresses those intentions. But those statements by this Court do not imply that, in reaching the required state of satisfaction, the Court is to apply a higher standard of proof than the ordinary civil standard. As I have observed, the existence of the documents sought to be validated generally indicates the wish of the deceased to depart from the disposition of the estate which would otherwise apply. It is therefore not appropriate to apply a higher than normal standard of proof in departing from that disposition...

[29] On all the evidence before me, I am satisfied here that the evidentiary burden under s 14(2) of the Act on the balance of probabilities has been met by the plaintiffs. First, the documents themselves demonstrate a clear intent to depart from the deceased’s previous will and to draft a new will providing for her children. While it might be argued that each of the three documents here individually do not by themselves satisfy a testamentary intent relating to disposal of all the deceased’s assets, as I see it, read together they do demonstrate a clear testamentary intent as to how she wishes that her property is to be disposed of, and how her affairs are to be handled after her death. And before me, on the one hand, counsel for the plaintiffs advanced the clear proposition from all the evidence before the Court that the deceased had no intention that her 2003 will would apply on her death. On the other hand, this was to an extent accepted by counsel for the defendant who before me

_{acknowledged directly that the deceased, with her actions immediately prior to her}

¹⁶ _{Wills Act 2007, ss 14(2) & (3).}

¹⁷ Re Campbell, above n 1, at [22].

death, clearly showed that she wanted her will to be changed. In saying this however, counsel for the defendant endeavoured to argue that there was insufficient clear evidence before the Court of the deceased’s testamentary intention and generally there was too much ambiguity here to be able to say that s 14 of the Act applied.

[30] On the facts before me, however, I reject these arguments from the defendant, and I also need to say that I take particular note here of the acknowledgement clause signed by the deceased at the end of the will instruction sheet. As already mentioned, the acknowledgment clause specifically stated in part:

...should I die before completing and signing a formal will...I declare this document to be my last will and request the...persons I want to be my executor(s) to apply for probate of this Instruction Sheet as an informal will.

[31] Clearly this contemplated the use of the will instruction sheet as an informal will in the event that (as happened here) the testator died before the will was finalised. In signing the acknowledgement clause, the deceased allowed that the instruction sheet should be used to apply for probate and, more than this, she expressly requested the plaintiffs as her appointed executors and trustees to make such a probate application.

[32] Affidavits deposed by both plaintiffs and Mr Tatham, in my view, also tell a consistent story. In the affidavit deposed by the deceased’s son Mr Jerome Winterburn, he said:

At 1 am on 12 August 2014 my mother asked me to stay up and talk with her. David had returned home and gone to bed. My mother asked me to close the hallway door and check if it was “safe to talk”. By this I understood her to mean that we would not be heard.

After I had assured my mother that David would not be able to hear our conversation, she told me that she had an appointment with her lawyer in the morning to draft a new will. My mother asked if I would write down her wishes as she dictated them to me. I asked my mother whether she should write the notes herself but she said that she was too nervous and upset to do so. My mother also said that it would not matter if I wrote the notes because her lawyer, Peter Tatham, would use the notes to prepare her will after their meeting.

I confirm that the notes I wrote are an accurate record of my mother’s

intentions as dictated y her to me that night.

[33] Furthermore, the second-named plaintiff, Ms Arcus, in her affidavit, deposes that the deceased phoned her in August 2014 and informed her that she had seen a solicitor, and that she intended to appoint Ms Arcus and her son, Jerome, as the trustees.

[34] Ms Arcus in her evidence says that the deceased explained to her at the time how her relationship with the defendant had deteriorated in the past few years and that she intended on leaving him after the surgery. The deceased told Ms Arcus that she wanted the boys to be taken care of after her death while acknowledging that the defendant was entitled to his share of the property, presumably by way of the relationship property split.

[35] While I have carefully considered the defendant’s submissions, I am not persuaded that the deceased’s instructions and intentions are confused nor that they are insufficiently clear or unparticularised. I now turn to address the other main concerns submitted by the defendant.

[36] The first anomaly advanced by the defendant here relates to the deceased’s answer in question 19 on the will instruction sheet as to whether she is leaving to her de facto partner less than a 50% share in property which they own together or have acquired for the common use or benefit of the relationship. In her answer, the deceased circled “No”. This would seem to be incorrect as, according to Mr Tatham and the plaintiffs, the deceased’s primary motive to draft a new will was to leave the defendant out of her will. The defendant contends that it is not possible to reconcile the deceased’s answer to this question with the evidence supporting the deceased’s intent to write the defendant out of her will.

[37] However, as I see it, there is overwhelming evidence here that the deceased was either mistaken in her answer or did not understand the question. In the same instruction sheet, the deceased named her two sons, Raymond Winterburn and Jerome Winterburn, to inherit the bulk of the estate. And, all the affidavits deposed on behalf of the plaintiffs here tell the same story.

[38] Next, as I have noted earlier, counsel for the defendant further submits that read individually, none of the documents seeking validation demonstrates the sufficiently clear testamentary intent required here. Referring to the handwritten notes, the defendant contends that they do not provide any guidance as to the distribution of the residuary estate of the deceased, such as bank accounts, savings, the motor home, life insurance and other properties. Furthermore, it is said there is no evidence as to whether the deceased reviewed or confirmed the notes, after being written by her son, before giving them to Mr Tatham.

[39] In addition, the defendant submits that the solicitor’s instruction did include references for the deceased to provide for the defendant and also, in Mr Tatham’s affidavit, the deceased told him that she still wanted to think about what she wanted to do with the residue of her estate. On its own, the defendant suggests that the solicitor’s instructions are insufficient to satisfy a clear testamentary intent.

[40] With regard to the will instruction sheet, and leaving aside the anomaly discussed above at [36], the defendant notes that the deceased did not fill in specific gifts or monies given to individuals, contrary to the hand written notes. The deceased also did not make provision to provide for the second plaintiff, Ms Arcus.

[41] In my view, however, I do not accept these documents should be scrutinised individually. Rather, as I see it, they should be interpreted collectively in ascertaining the deceased’s testamentary intent. And, once those documents are considered together, along with the detailed supporting affidavits from the plaintiffs and the independent solicitor, Mr Tatham, I am of the view that these documents provide confirmation of the deceased’s clear testamentary intentions, such that s 14 of the Act is satisfied. Given also that the deceased died only about one week after the instructions were given, there is also nothing before the Court to indicate any changes of her intentions in the meantime.

[42] Counsel for the defendant also referred the Court in general terms to the reasons why there are strict requirements for execution of wills, and why these reasons should still be of concern here when the Court is seeking to validate a will.

He noted that in Professor Peart’s article, she referred to the main functions for the formalities of a will as established by Langbein:¹⁸

Langbein identified four main functions in the wills formalities: an evidentiary, channelling, cautionary, and protective function. The evidentiary function is served by the need for writing, the will-maker’s signature and the attestation of the witness. They provide the Court with reliable evidence of the will-maker’s testamentary intent and of the terms of the will. The formalities also have a channelling function, because they channel will- makers into standard forms of behaviour, organisation, language and content of most wills. The cautionary function of the formalities reminds the will- maker of the importance attached to the making of a will. The signing of a written will in the presence of witnesses and their attestation create a ceremony that impresses on the participants the solemnity and legal significance of what is being done. Finally the formalities have a protective function. The presence of two independent witnesses is aimed at reducing the risk of fraud, forgery or undue influence.

[43] While I accept that the four functions identified by Professor Peart must be seen as somewhat undermined to an extent by the validation powers conferred to the Court in s 14, clearly with this Parliament has made a deliberate policy consideration to soften those strict formalities, in order to make it easier to give effect to a deceased’s true testamentary intent.

[44] Saying that, with the possible exception of the channelling function,¹⁹ the Court still needs to be wary of the concerns which the three other functions aim to address. As to the evidentiary function, I have already discussed how I am satisfied in this case on the balance of probabilities that the documents do demonstrate the deceased's intent for disposal of her property by testamentary disposition.

[45] I am also satisfied here first, that the deceased did recognise the significance and the ramifications of her intent and here secondly, that the documents were not obtained by fraud, forgery or undue influence. In this case, the deceased went to considerable effort in attempting to complete a new will. This included instructing her son to write notes for her bearing in mind her previous will provisions, booking an appointment with her solicitor, instructing him to make a new will, filling out the

_{will instruction sheet and attending again the next day at the solicitor’s office without}

¹⁸ _{Nicola Peart, above n 1, at 31.}

¹⁹ It is recognised that documents seeking to be validated are likely to come into existence in variable forms. Therefore, a standardised form of behaviour, organisation and language would not be expected.

appointment when no attendance was able to be accommodated. I am satisfied the ascertainable intent of the deceased should therefore be upheld and the documents validated.

Conclusion

[46] For all these reasons, I am satisfied here that the provisions of s 14 of the Wills Act are satisfied and the three documents in question should be validated as the will of the deceased.

[47] I make an order under s 14(2) of the Act declaring the deceased’s notes, the file notes and the will instruction sheet to be the valid will of the deceased, Dawn Una Richards.

[48] In consolidating the three documents, I declare the following terms to be the last will of the deceased, Dawn Una Richards:

(a) Any previous wills or testamentary dispositions are revoked;

(b) Ngaire Arcus and Jerome Winterburn are to be trustees of the will and executors;

(c) All personal jewellery, clothing and items to Jerome Winterburn and

Raymond Winterburn, the deceased’s sons;

(d) All Maori land interests to Jerome Winterburn and Raymond

Winterburn;

(e) Funeral expenses to be paid from the deceased’s estate;

(f) Burial directions for cremation and the scattering of ashes in Otaki;

(g) Payment of the residue and what is effectively the bulk of the estate in equal shares to Raymond Winterburn and Jerome Winterburn.

[49] Any claims by the defendant against the deceased’s estate are better resolved

(if that may be appropriate here) through the Property (Relationship) Act 1976.

Costs

[50] As to costs, counsel for the plaintiffs seeks an award of costs here. In turn, counsel for the defendant has indicated that he wishes to be heard on the question of costs.

[51] That said, costs are reserved.

[52] In the event that counsel are unable to agree between themselves on issues of costs they may file memoranda (sequentially) which are to be referred to me and, in the absence of either party indicating they wish to be heard personally on questions of costs, I will give a decision on costs based upon all the material before the Court.

...................................................

Gendall J

Solicitors:

Saunders Robinson Brown, Christchurch.

Young Hunter, Christchurch.