Wardill v Anderson [2016] NZHC 3114 (16 December 2016)

Last Updated: 21 December 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003017 [2016] NZHC 3114

IN THE MATTER	of an application pursuant to section 14 of the Wills Act 2007
AND
IN THE MATTER	of the estate of Sandy Maureen Anderson, Deceased
BETWEEN	PATRICIA DIANE WARDILL AND DAVID ROBERT PASLEY Applicants CHRISTOPHER GRANT ANDERSON Interested Party JOHN RATTRAY Interested Party

Hearing:	19 September 2016
Appearances:	J H Hunter for Applicants D A Campbell and D R Duffield for C G Anderson J M Skinner for J Rattray
Judgment:	16 December 2016

_{JUDGMENT OF PALMER J}

This judgment is delivered by me on 16 December 2016 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors & Counsel:

J H Hunter, Barrister, Auckland

Wardill Pasley Law, Auckland

Kensington Swan, Auckland

Skinners Law, Auckland

WARDILL & PASLEY [2016] NZHC 3114 [16 December 2016]

Summary

[1] Ms Sandy Anderson died on 30 May 2015. On 4 February 2015 and 14 May

2015 she met with her solicitor, Ms Patricia Wardill, and gave instructions for a new will. She died without signing it. Ms Wardill has applied to validate the unsigned will under s 14 of the Wills Act 2007, out of her sense of duty to her former client. Mr Chris Anderson, Sandy’s brother, supports the application and Mr John Rattray, Sandy’s de facto partner, opposes it.

[2] There are two questions involved in analysing whether a document represents a deceased’s testamentary intention and can be validated under s 14. First, did the document represent the deceased’s testamentary intentions at the time the instructions for its drafting were given? Second, is there a good explanation for why the formalities required for the document to be a valid will were not fulfilled before death?

[3] I am satisfied the answer to both questions is positive. I am satisfied on the evidence that, while Sandy loved John, she also felt he tried to monitor and control her interactions with others. He may not have realised she felt that and he may not have thought he did. But Sandy kept her instructions for the will secret from John and was clear with Ms Wardill about her wishes. Sandy avoided conflict, including over property issues with John. And Sandy was concerned to keep the peace between her and John in her last days. One way of doing that was not to tell John about the draft will and not to take steps to sign it which would have risked him finding out about it. The evidence satisfies me that final version of the unsigned will represents Sandy’s genuine testamentary intentions and, under s 14 of the Wills Act

2007, I declare it valid.

Outline of factual context

[4] Sandy was born on 6 June 1960. She died of cancer on 30 May 2015 at the age of 54. Her brother Chris is nearly two years older. Sandy’s elderly parents and another brother, David, do not feature in this case.

[5] Sandy married Mr Ray Phillips in 1989. They separated in 2007. They had no children. Ray’s evidence is that Sandy was left with about $1.2 million in relationship property. In the same year she met and started a relationship with John, a building inspector at Auckland Council. At some point, this became a de facto relationship. (Exactly when is a matter of dispute, as is whether or not the relationship was continuous, but I do not need to decide either point.)

[6] In 2009 Sandy lost her job and was diagnosed with breast cancer, for which she had several operations. In July 2010, before leaving for overseas with John, Sandy executed a will with the Public Trust, leaving 75% of her estate to friends,

15% of her estate to Chris’s sons, the rest to charities and nothing to Chris or to John.

[7] In September 2013 Sandy was diagnosed with terminal Stage IV ovarian cancer. She and Ray formally divorced in February 2014 and she bought a house in Orewa in April 2014. On 1 April 2014 Sandy made another will with the Public Trust, leaving her estate to John. She had one more round of chemotherapy to go but was told not to pin her hopes on it.

[8] On 4 February 2015, unbeknownst to John, Sandy instructed her solicitor, Ms Wardill, to draw up a new will and a relationship property contracting out agreement. In May 2015 Sandy was admitted to a hospice. On 14 May 2015

Ms Wardill took further instructions from Sandy while she was in the hospice and revised the draft will accordingly. This will would leave half of Sandy’s estate to John and half to Chris. Before Ms Wardill returned the following day, Sandy was discharged. Ms Wardill could not contact her after that. On 29 May 2015, at Sandy’s instigation, John and she obtained a marriage licence. On 30 May 2015

Sandy died, before a ceremony could be held.

[9] Ms Wardill has brought this application to declare the draft will to be valid. She considers she had a duty to do so, as the solicitor who prepared the draft will.

Law

[10] Section 11 of the Wills Act 2007 prescribes the formal requirements for a will to be valid. Section 14 empowers the Court to declare a document, that does not meet those requirements, to be a valid will. It provides:

14 High Court may declare will valid

(1) This section applies to a document that—

(a) appears to be a will [which is defined in s 8]; 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.

[11] This validation power derived from a proposal by the Law Commission in its

1997 report, Succession Law – A Succession (Wills) Act.¹ Strict compliance with the formalities required by the Act’s predecessor, the Wills Act 1837 (UK), carried the potential to defeat genuine testamentary intentions. The Law Commission said “The logic of the change is that there is no reason why the ways of proving a deceased’s genuine intentions should be confined to complying with the formal requirements, if the intentions can also be proved in other ways”.² Apart from deletions of some archaic language, the Law Commission’s proposal was included in the Bill as introduced and remained unchanged through the Parliamentary process.

[12] As Asher J said, in Re Wong:³

The great benefit of the reform in s 14 is that it takes the eye of the Court away from form and makes it focus on substance and intention. A person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities. The Court should give effect to the intention of the person who purported to make a will. However, it must be

¹ _{Law Commission Succession Law – A Succession (Wills) Act (NZLC R41, 1997).}

² _{At 19.}

³ Re Estate of Wong [2014] NZHC 2554 at [24].

clear on the balance of probabilities that the document is intended to express

the deceased person’s testamentary intentions.

[13] In a useful article published in 2013, Professor Nicola Peart and Mr Greg Kelly analysed more than forty cases invoking s 14 since the Act came into force.⁴ I agree with them that the purpose of the validation power is “to give effect to the will- maker’s ascertainable intentions in whatever written form they may be found”.⁵ As they also observe, based on the Law Commission report, “there can be little doubt that the main purpose of the formalities [in s 11 of the Act] is to authenticate a document as an expression of the deceased’s genuine testamentary intentions”.⁶

[14] All of the applications analysed by Peart and Kelly were successful, though only two were opposed. Of the 41 cases they analysed, 14 were neither signed nor witnessed.⁷ Six involved a professionally drafted will the deceased did not see before death. In all of those cases the Court was satisfied the draft will accurately reflected the deceased’s instructions.⁸ In one case, Re Feron, the Court validated a will based on a solicitor’s notes rather than a full draft.⁹ In 2014 MacKenzie J also noted the Solicitor-General’s identification of approximately 80 applications under s 14, of which only two had been refused.¹⁰

[15] The requirement for validation is that the court is satisfied the document expresses the deceased’s genuine testamentary intentions. Arguments about the fairness of the terms of the document are not directly relevant.¹¹ Cogent evidence is

required.¹² That can include the content of the document, explanations for the failure

to observe the formalities, the circumstances in which the will was prepared, the reasons for any change in testamentary disposition, and discussions or written

_{communications the deceased had with others.}¹³ _{As Whata J has observed, s 14 is}

4. Nicola Peart and Greg Kelly “The Scope of the Validation Power in the Wills Act 2007” [2013] NZ Law Review 73.

⁵ _{At 86.}

⁶ _{At 79 (citing Law Commission, above n 1, at 19).}

⁷ _{At 85.}

⁸ _{At 81-82.}

⁹ _{Re Feron [2012] NZHC 44, [2012] 2 NZLR 551.}

¹⁰ Re Campbell [2014] NZHC 1632 at [17] (citing Re Estate of Hughes [2014] NZHC 710; White v

_{White [2014] NZHC 865).}

¹¹ _{Re Lauder [2012] NZHC 3155 at [9].}

¹² _{Re Hickford HC Napier CIV-2009-441-369, 13 August 2009 at [11].}

¹³ Peart and Kelly, above n 4, at 89-90 and 93.

“concerned with substance not form”.¹⁴ A robust approach to such applications is called for.¹⁵

[16] In a statement in another article approved by the court, Professor Peart has observed “[t] he Court must be satisfied to the ordinary civil standard of proof that the evidence as a whole, including any evidence of the will-maker’s statements and testamentary intentions, shows that the document expresses the deceased’s testamentary intentions.”¹⁶ As Courtney J observed in Balchin & Anor v Hall & Anor, if the court is so satisfied, the court has a discretion as to whether to make an order, which must be exercised consistently with the purpose of the Act.¹⁷

[17] One notable feature of the applications decided under s 14 to date is that I have only been able to identify six that have been opposed,¹⁸ and only one that has been unsuccessful on the basis of testamentary intentions.¹⁹

[18] The application in this case is opposed. It is common ground the requirements of s 14(a) are satisfied. The draft will appears to be a will, does not comply with s 11 because it was not signed and it came into existence in New Zealand. The issue is whether I am satisfied, for the purposes of s 14(2), that the draft will expresses Sandy’s testamentary intentions.

[19] I consider there are two questions involved in analysing that issue. First, did the document represent the deceased’s testamentary intentions at the time the instructions for its drafting were given? Second is there a good explanation for why

_{the formalities required for the document to be a valid will were not fulfilled before}

¹⁴ _{Re Feron, above n 9, at [11].}

¹⁵ _{Re Estate of Murray HC Masterton, CIV-2011-435-178, 20 December 2011.}

¹⁶ Nicola Peart, Where there is a will there is a way” [2007] WkoLawRw 4; (2007) 15 Waikato L Rev 26 at [27]. This passage has been cited with approval in Re Estate of Campbell [2014] NZHC 1632, [2014]

_{3 NZLR 706 and Re Estate of Wong, above n 3.}

¹⁷ _{Balchin & Anor v Hall & Anor [2016] NZHC 837 at [7] – [9].}

¹⁸ Re Tutaki HC Hamilton, CIV-2010-419-120-8, 13 May 2011; Gladwin & Ors v Public Trust & Ors [2011] NZHC 1596; [2011] 3 NZLR 566 (HC) [Re Cairns]; Fitzgibbons v Fitzmaurice [2014] NZHC 710

(regarding testamentary capacity); Kirner v Falloon & Anor [2015] NZHC 1873; Harris v Taylor

_{& Anor [2015] NZHC 3190; Balchin & Anor v Hall & Anor, above n 17.}

¹⁹ The only cases I have identified where the applicant failed to demonstrate testamentary intention is Kirner v Falloon & Anor, above n 18 (for want of credible evidence as to the deceased’s testamentary intention), and Fitzgibbons v Fitzmaurice, above n 18 (where the deceased lacked the requisite testamentary capacity at the time the document was prepared).

death. A positive answer to both questions is required for a court to be satisfied a

document represents the deceased’s testamentary intention.

[20] Where there is a delay between drafting of a document and the deceased’s death, MacKenzie J outlined three possibilities as to why a deceased might not have signed it:²⁰

(a) the deceased changed his or her mind about making a will, which would not represent testamentary intention; or

(b) the deceased overlooked or forgot about signing the will, which may or may not represent testamentary intention; or

(c) the deceased did not think he or she needed to do anything, which would mean the will would represent testamentary intention.

[21] In Re Cairns Woolford J also identified a fourth category: maintaining an intention to sign the will but never getting around to it.²¹ I do not take these categories as exclusive of other possibilities. They are a helpful guide to possibilities but the key to the second question is whether there is a good explanation for why the formalities required for the document to be a valid will were not fulfilled before death.

Does the draft will express Sandy’s testamentary intentions?

The arguments and evidence

[22] Ms Wardill brings the application and offers evidence of her instructions but abides the decision of the Court. Chris submits that Sandy was subject to significant controlling behaviour by John. He says Sandy kept secret from John her instructions to Ms Wardill and that John controlled access to Sandy before her death, preventing her from signing the will. Chris says Sandy did not want to confront John in her last

_{days but that the instructions represented her genuine testamentary intentions. John}

²⁰ _{Re Hickford, above n 12, at [9].}

²¹ Re Cairns, above n 18, at [22].

says Chris pressured Sandy to change her will. He says the draft will did not represent her genuine testamentary intentions. He says Sandy told him in the week before her death that the Public Trust will was what she wanted.

[23] These arguments mean the application of s 14 here is less clear-cut than in most, even the opposed, applications. The case of Harris v Taylor contains the most similar difficulties in determining testamentary intentions.²² In that case Davidson J observed that two equitable doctrines inform the application of s 14: undue influence and the principle that someone instrumental in framing a will must assure the court of the righteousness of the transaction where a suspicion of undue influence arises.²³

Harris v Taylor involved an allegation that the deceased was unduly influenced into acceding to the document at issue there.²⁴ Davidson J considered the concept of testamentary “intention” in s 14 would not arise out of undue influence or coercion.²⁵

Here there is, in effect, an allegation of undue influence going the other way: someone preventing the deceased from signing the document at issue. In both cases the parties offer two very different accounts as to the deceased’s genuine testamentary intentions. The answer is intensely fact-specific.²⁶

[24] I need to be satisfied that the draft will represents Sandy’s genuine testamentary intentions if I am to validate it. To determine that I examine the evidence about the events relating to the draft will and the context of Sandy’s relationship with John.

[25] Ms Wardill was unable to give evidence because of her own affliction with lung cancer. I have preliminary and responding affidavit evidence from her. John and Chris gave affidavit evidence and were cross-examined. I also have affidavit evidence from Sandy’s former husband, Mr Phillips, and from several of Sandy’s friends, Ms Jeanette Mckay, Ms Sunita Ellenby and Ms Louise McMillan. Of them,

_{only Ms McMillan was cross-examined.}

²² _{Harris v Taylor, above n 18.}

²³ _{At [121] -- [137].}

²⁴ At [121].

The events relating to the draft will

[26] Ms Wardill acted for Sandy in several transactions including settlement of relationship property in 2008 after she separated from Ray.

[27] On 4 February 2015 Ms Wardill took instructions from Sandy to draw up a will as well as a contracting out agreement under the Property (Relationships) Act

2000. This account is based on her affidavits and notes taken at the time and evidence from Chris and John.

[28] Chris says Sandy asked him to accompany her to see Ms Wardill. They had deliberately taken different cars to reduce the chance John would find out Sandy had been with Chris. Chris says Sandy told Ms Wardill she was not happy with the Public Trust will and she wanted to provide for her family. Chris told Ms Wardill he was acting as a support person because the family was concerned Sandy was being isolated by John. Ms Wardill’s notes say Chris also said they thought Sandy was “being ‘bullied’”. Sandy became upset at that and Ms Wardill asked Chris to leave the room. He waited in reception. Sandy repeated that she did not want John to find out about the visit. Sandy told Ms Wardill she was very nervous about changing her will because John would be angry with her since he had taken her to the Public Trust to make a will leaving everything to him.

[29] Although he didn’t know about the will, John says Sandy went to see Ms Wardill in February 2015 as a result of Chris’s “continual insistence to do a relationship agreement (not to change her will)”.²⁷ He says she told John she finally gave in to Chris “because he kept going on and on about it” and she felt Chris and Ms Wardill “were pushing her into agreeing on something she was not happy about”.²⁸ John says Sandy “just agreed to whatever was being asked in order to get Chris off her back which was Sandy’s way of dealing with confrontation”.²⁹

[30] Ms Wardill says at the meeting Sandy asked Ms Wardill not to post anything

_{to her address so John would not know about the change to the will. Ms Wardill’s}

²⁷ Affidavit of John Rattray, 20 May 2016, at [47] [Rattray affidavit].

notes indicate she asked Sandy if there was any physical violence but it was “more emotional”. Ms Wardill considered it was clear that Sandy struggled with, and wished to avoid, conflict. Ms Wardill has produced the draft will she prepared in response to the instructions. It would have given half of the estate to Chris, a quarter to John if they were still de facto partners at the date of her death, and a quarter to Chris’s two sons. Ms Wardill says Sandy was extremely nervous about changing the will and about presenting the contracting out agreement to John. She wanted to control the timing of that and instructed Ms Wardill not to send it to him directly.

[31] Ms Wardill says Sandy did not respond to her prompts to come in to sign the will. Chris left a message for Ms Wardill on 13 May 2015 saying that Sandy was being treated at the hospice. At Ms Wardill’s initiative, on 14 May 2015, she visited Sandy in the hospice. This account is based on Ms Wardill’s affidavit and the notes she made at the time. Ms Wardill discussed with Sandy her medication and had no concerns about Sandy’s testamentary capacity. Ms Wardill reviewed the will, alone, with Sandy. On this occasion Ms Wardill’s notes indicate Sandy “expressed no concerns to me about controlling”. On Ms Wardill asking her about that, Sandy said she was aware of family concerns but was happy with the situation and was happy to go home with John caring for her. She wanted to sign the property relationship agreement and she would talk to John about contacting Ms Wardill about that. Sandy asked for changes to be made to the draft will, by providing equally for her de facto partner and her brother, removing immediate provision for her nephews. Ms Wardill noted at the time “my impression xtremely vulnerable!!” Ms Wardill has provided evidence of the draft will that resulted. That is the draft will which is the subject of the application, attached to Ms Wardill’s affidavit of 4 September 2016 labelled “C”.

[32] John says that, when Ms Wardill showed up at the hospice unannounced, Sandy, “being the gentle non confrontational person that she was chose to deflect having to sign this new will by asking for changes to be made to buy more time”.³⁰

[33] Ms Wardill says she made arrangements to return the following day to have the will signed. But when she contacted the hospice the next day to make a time to

visit, she was told Sandy was being discharged. Sandy did not respond to Ms Wardill’s further attempts to contact her. Ms Wardill’s memory is that she attempted to call Sandy on her cellphone twice on 18 May and left a message but she received no response. John’s evidence is that Sandy missed a call from Ms Wardill on 19

May, that he asked Sandy if she wanted to call her back and Sandy said no.³¹

[34] In affidavit evidence John provided an account of what Sandy told him about the draft will on Sunday 24 May 2015:³²

[Sandy] said don’t worry darling I haven’t signed any other will and the Public Trust is the one I want. She had told me previously about Patricia [Wardill] being furious about not doing the will with her (and instead Public Trust). Sandy said she was happy with Public Trust will except they had lumped all the jewellery together when it was only the grandparents jewellery to go to Chris.

...

Sandy discussed the 4 February 2015 meeting with Patricia and Chris with me and advised that she had asked Patricia to rewrite her Public Trust will with the changes to the provision of jewellery only. Patricia insisted she could write a better will herself and Sandy said that because she didn’t really understand how wills were supposed to work she just asked Patricia to draft something and email it through so she could have a look. Sandy also told me she was horrified at what Patricia had sent through and not to worry because she would not sign it.

[35] Ms Wardill disputes that she ever indicated she was furious Sandy had made a will with the Public Trust. John repeated under cross-examination that Sandy told him Ms Wardill was horrified Sandy had a Public Trust will.³³

[36] Under cross-examination John asserted that Sandy saw Ms Wardill 100 per cent about a relationship agreement. Significantly, he also changed his evidence about the draft will, saying he did not know of its existence until 6 weeks after

_{Sandy’s death.}³⁴

³¹ _{At [70].}

³² _{At [54] and [65].}

³³ _{Notes of Evidence 40/15 - 41/21.}

³⁴ Notes of Evidence 45/12-13 and 16-17.

Sandy’s relationship with John

[37] Understanding of the events surrounding the drafting of the will is informed by the evidence about Sandy’s relationship with John. I outline the evidence provided by Chris and his witnesses, and by John and his witness, in turn.

[38] Mr Christopher Anderson, Sandy’s brother, gave affidavit evidence and was

cross-examined. His evidence is:

(a) Chris and Sandy had a close, loving relationship (John disputes this).

Chris would often have lunch or dinner with Sandy though John might not know that, as he was unaware of most of their catch-ups. He provides evidence of texts relating to examples of such meetings, including texts from Sandy saying that John thinks she is elsewhere.

(b) Sandy often spoke to him about her relationship with John. Chris says she was subject to controlling behaviour by John (John disputes this), Sandy often told him that if she went out with friends without permission John would turn up uninvited and be unpleasant.

(c) In May 2014 when Sandy was in a hospice Chris wanted time alone with her but John refused to leave the room, raised his voice and upset Sandy so much that Chris left.

(d) In June 2014, at Sandy’s request, Chris had signed a joint power of attorney which was not completed as John refused to hold a joint appointment and would not sign the document.

(e) In late 2014 Sandy phoned Chris, crying. They met at a café and Sandy explained Chris had taken her to Public Trust to change her will and she was unhappy about being pressured into leaving assets to John’s children. She said she was leaving everything to him but getting nothing from him, in his will, in return. She wanted to change the will so it was more equal to his. She asked Chris to accompany her to see a lawyer to change the will, without telling John.

(f) In early February 2015 Sandy told Chris she wanted to enter a relationship property contracting out agreement with John to preserve her rights to her property. This was not Chris’s suggestion.

(g) On 19 February 2015 Sandy emailed Chris a draft letter to John explaining why she wanted to enter a relationship property agreement. A copy of the draft letter and cover email is in evidence. It anticipates and tries to defuse a negative reaction:

This may push some of your buttons, however you don’t have to respond immediately, I respect your feelings, and realise these are touchy subjects. When I give you this letter I will go for a drive. When I return we can discuss these things, or not, but they must happen, and we need to be gentle with ourselves. Please think & react with more of your heart, not so much your head. Leave work behind and chill while reading this.

The draft letter first asks for John’s support for using cannabis. Then it says:

The second thing, which may press even more buttons, is that we both need to sign a contracting out agreement. My solicitor has drafted one, at her suggestion, which I can give to you to read, however you would need to have separate legal advice from a different solicitor – that’s the way it’s done these days. One night (when you were very upset) you agreed to do this with me, though you have since refused. But this needs to happen, must happen, for my peace of mind and security. It’s really just about you keeping what is yours and me keeping what is mine, if ever we parted. Please show how much you care about and love me, by going along with these things, by allowing them to happen with ease.

The next day Chris says Sandy was upset and told Chris that John had refused to sign the agreement.

(h) Chris said Sandy had difficulties getting back to Ms Wardill’s office.

By March 2015 she was no longer able to drive and John had taken two months off work to look after her.

(i) From the time Sandy entered the hospice in May 2015 she stopped responding personally to text messages. After she returned home her mobile phone was turned off and the landline not answered.

(j) Chris says he knows Sandy regretted her last signed will and had wanted to execute the draft prepared by Ms Wardill.

[39] The evidence of Mr Ray Phillips, Sandy’s ex-husband, is:

(a) Sandy “was a soft, gentle, non-confrontational person” who “went out of her way to avoid conflict and in my experience tended to put matters which might be inflammatory into the ‘too hard basket’”.³⁵

(b) He would meet Sandy for coffee every so often when John was at work. “Sandy preferred to meet in secret because John did not like her meeting people without his knowledge, and would become agitated if he found out that she had done so”.³⁶ In about 2014 Sandy told Ray she thought John may be checking who she had been calling and texting on her phone and emails and said he was “a bit of a control freak”.

(c) About February 2015, when the cancer was progressing, Ray asked Sandy whether she had gone to a lawyer to sort out her affairs. Sandy became upset and had tears in her eyes. She said she had changed her will but wasn’t comfortable with it and was going to change some things. She made it clear that John had become very angry about the subject. Ray thought Sandy was afraid but she said she could handle the situation.

(d) In early May 2015 Ray visited Sandy in the hospice. Sandy had asked

John not to be there for the visit. Ray asked Sandy if she had her

_{affairs in order. Sandy “indicated that she was making a new will but}

³⁵ Affidavit of Raymond Phillips of 28 April 2016 at [3].

getting it signed was becoming difficult”.³⁷ She said John wanted her to leave something to his children. She said she wanted to leave something to her family members.

(e) In late May 2015 Ray visited Sandy at home. She told him she had asked John to go out for the whole of the visit and was trying to keep her phone under her pillow so John couldn’t monitor it. She said she felt she could not talk freely when John was present.

[40] Ms Jeanette McKay, of Auckland, describes herself as “a very close friend”

of Sandy. Her affidavit evidence is:

(a) She had a strong impression that John was extremely controlling of Sandy who “seemed to live with the constant fear that John would find out about things in Sandy’s life that he would not like”. Sandy was scared of John and upset with his behaviour but was unable to stand up for herself.

(b) Over many lunches Sandy told Ms Mckay that, from 2014 to 2015, Sandy tried to get John to enter what she describes as a pre-nuptial agreement but John argued about it, would not sign it, and threatened to leave her over the issue.

(c) Sandy told Ms McKay on several occasions between 2013 to 2015 that John would monitor her phone and read her texts and had the password to her computer. She would often text Ms McKay telling her not to reply to her texts for that reason. Ms McKay gives an example of on occasion on 15 October 2014 when Sandy texted Ms McKay to say she was in “big trouble” because John had read one of Ms McKay’s texts. Sandy texted Ms McKay to call John because otherwise he was not prepared to stay with her. The texts are in evidence. Ms McKay called him to tell him his controlling behaviour was unacceptable.

(d) John would be very angry if he found out Sandy had met with a friend or family member without him. She gives an example of that happening in her presence in November 2009, when John turned up to lunch uninvited, got very angry and shouted at Sandy. Later that day Ms McKay says John turned up at Sandy’s home, swore aggressively and threw cane furniture in her living room. Sandy slept at Ms McKay’s place for the night and together they cleaned up the living room. Ms McKay gives examples in 2011 and 2012 of Sandy staying with her for some time away from John and John turning up and aggressively banging on the front door. In 2013 Sandy told Ms McKay she was only allowed to meet her friends with John’s prior approval and had to give a rundown of everything she had spoken about afterwards. Sandy would usually sneak around to meet her friends, usually when John was at work.

(e) Ms McKay corroborates Chris’s account of Sandy’s attempt to organise a joint power of attorney and John’s refusal and says John threatened to leave Sandy if she didn’t let him be her sole power of attorney.

(f) Ms McKay had two conversations about the will. One, in 2013, Sandy said she wanted to make a new will to provide for her family including Chris. In the second, in early 2014, Sandy told Ms McKay John was pressuring her to leave everything to him and his children and that she and John had had terrible arguments about it. She said John might deserve something but not everything and she didn’t want to leave anything to his children and she did want to provide for her own family.

[41] Ms Sunita Ellenby, who lives in California, describes herself as “a very close friend” of Sandy with whom she became pen friends at the age of 13. She says she stayed with Sandy in Auckland on five occasions and Sandy visited her three times (John disputes the dates). Her affidavit evidence, which John does not accept, is:

(a) Sandy “avoided conflict at all cost” and “[o]ver time, it became obvious to me from my conversations with Sandy that John was very controlling, and that Sandy was very frightened of him”.³⁸

(b) Sandy said over Skype sometime in 2013 that “things always had to be done [John’s] way or he would have a tantrum”.³⁹ Sandy told her they couldn’t talk over Skype from around April 2014 when she was living with John and he was around. Sandy said around August 2014

John had her email password and that coincided with Sandy’s emails to her becoming fewer and “quite sterile”.

(c) Sandy told her on two occasions, in July 2012 in California and over Skype around September 2014, that she wished to leave her assets to Chris and his children.

(d) On 9 May 2015 Ms Ellenby received an email from Sandy when she was in the hospice. On 19 May 2015 Ms Ellenby received an email from John from Sandy’s email account, advising she had asked him to let her friends know she had been admitted to hospital and had two or three weeks left.

[42] John provided evidence by affidavit on which he was cross-examined. His evidence is:

(a) Sandy told him she wished to redo her will in April 2014 as the last one was not appropriate and she went to the Public Trust and changed it. Contrary to Ms Wardill’s evidence (and notes) of what Sandy told her, he says he did not accompany her. In May 2014 she asked him to let her have the use of his property for five years after his death and he changed his will to that effect.

(b) John does not accept Sandy wrote the 14 February 2015 draft letter to him about the property agreement that she emailed to Chris, because

³⁸ Affidavit of Sunita Ellenby of 26 April 2016 at [5].

she never mentioned it to him and he did not receive it. He believes either Sandy drafted it to appease Chris or was having a bad day on medication or did not write the email. Under cross-examination John said Sandy said she had done it to please Chris and was not going to do anything about it. John said he never refused to sign a contracting out agreement. Apart from a faint attempt to suggest Chris might have dictated the letter (that is not credible given the salutation “Dear Darling Johnny”) he could not explain why the draft letter by Sandy said that he had refused. John also gave evidence that he “was happy to do one but in the end both of us did not see the need for one”. He said Chris kept saying John had forced her and would not accept any

decision she made.⁴⁰

(c) On 28 May 2015 Sandy asked John to marry her (as they had earlier agreed) and they signed an application for a marriage licence. A licence was granted on 29 May 2015, authorising marriage to be performed. It is in evidence.

(d) John supported and cared for Sandy throughout her illness. He took time off work from 13 April until after her death and went to the hospice for a few hours every day to see her. But he was not there all day and he was supportive of Chris spending time alone with Sandy when possible.

(e) John is not a controlling partner – that is a fiction of Chris’s imagination. He and Sandy loved each other and were respectful of each others’ space. He never had charge of her phone. The only time she asked him to look after it was in hospital. Sandy gave him her email password when she was in hospital in May 2015 to email some of her friends. Sandy didn’t like Skype.

(f) Chris was hostile towards John from the time they met and blew hot and cold in how he treated John. Chris and his wife, Dawn, provided

no support to Sandy during her illness and treatment (Chris disputes this). Chris and Dawn were nasty and abrasive when they visited Sandy at the hospice (Chris disputes this too). The hospice notes record that on 28 May 2015 Sandy kept saying to John that she did not want her brother to visit and John was “avoiding conflict from the family by not answering any text or phone calls as instructed by

Sandy”.⁴¹ They were nasty about the funeral arrangements. John is

sceptical Sandy ever met Chris for coffee because they had “a very distant relationship”. He says Chris is fixated on money and made various allegations about Chris’s actions regarding his parents’ wills and his brother.

(g) It is bizarre that Chris, Ray, Ms McKay and Ms Ellenby have “conspired against” John. Chris and Ms McKay used to be in a volatile relationship with each other. Ms McKay contributed to the break-up of Sandy’s first marriage, was always trying to split up Sandy and John and wanted to put the knife into John. Ms Ellenby did not take time off work when he and Sandy visited her in California in 2010, which annoyed Sandy and did not visit her for long when she visited in New Zealand.

[43] Ms Louise McMillan, of Auckland, was a friend and neighbour of Sandy’s and Ray’s and says she became close friends with Sandy after her separation. Coincidentally, Ms McMillan had worked as an administrator in Ms Wardill’s legal practice. Her affidavit evidence, on which she was cross-examined, is:

(a) Sandy was a very gentle person who didn’t like confrontation. But she was very determined. If she wanted something, she would get it. If she didn’t want to do something, she wouldn’t. As an example, Ms McMillan said Sandy left a body corporate because she didn’t like people bullying her or telling her what she could or couldn’t do.

(b) In May 2015, when Sandy was at home, she had asked John to put a note on the door advising callers that she did not want visitors. But, in the week of 25 May 2015, Sandy asked Ms McMillan and her partner to visit Sandy. On 28 May 2015, while the men were in the garden outside, Ms McMillan said to Sandy words to the effect of “I am putting my legal hat on now, have you got all your ducks in a row, is everything sorted, do you want me to do anything, is there anything else that needs doing?”. Sandy replied that everything was in order. When Ms McMillan asked again, Sandy said “No everything is done but thank you”.

(c) Sandy knew Ms McMillan knew Ms Wardill. Ms McMillan knew from a previous conversation there was a will with the Public Trust. She didn’t know about issues with that will or about instructions to Ms Wardill for a new one. Neither did she know there was a wedding proposal made that day.

[44] Finally, the medical notes relating to Sandy’s care contain the following

points:

(a) There are consistent observations praising the quality of care John gave to Sandy.

(b) On 26 April 2015 there was a complaint from Chris and Dawn about

John isolating them from, and being controlling about, Sandy’s care.

(c) On 10 May 2015 there was a lot of tension between John and Chris. (d) On 13 May 2015, a days before Ms Wardill’s visit, there is a note:

13/05/2015 14:46 – Susan McHugh – Retrospective note from 12^th May. Lengthy session with Sandy late afternoon. Main concerns centre around her relationship with partner. Also admitted to grieving and missing company of her ex husband now that she is so unwell. Gave Sandy opportunity to express and process ambivalent and confusing emotions. She is also finding it difficult to talk realistically about her disease progression, preferring instead to focus on healing

modalities to effect better health. However, by close session she was able to hold ‘hoping for the best while preparing for plan b or the worst’ in an attempt to find some peace of mind. Sandy is wanting to see a solicitor to review her will. Agreed to attend family meeting to talk about discharge plans tomorrow morning.

(emphasis added)

(e) On 27 May 2015 Chris called in to see Sandy around 7.45pm. There was an “altercation” between him and John. The following day John was stressed about it, feeling Chris was meeting his own needs and not Sandy’s. Chris felt John was trying to prevent him from seeing Sandy. And Chris’s wife, Dawn, was concerned John was preventing them and Sandy’s parents from communicating with Sandy. She reported that the family felt Sandy would do anything for John to keep the peace. John said Sandy did not want her brother to visit. Sandy requested of staff that her family refrain from visiting and asked for a “no visitors” notice to be put on the door. At 1.45 pm Sandy asked John to marry her as soon as possible.

My findings

[45] John loved and cared for Sandy and Sandy loved him. However on the balance of probabilities, I am satisfied Sandy also felt John tried to monitor and control her interactions with others. John may not have realised Sandy felt like that. He may not have considered he was acting in that way. But I consider the evidence shows that is what Sandy felt. That enhanced her avoidance of conflict with him. The evidence is quite clear that Sandy avoided conflict generally. I consider she preferred to avoid confronting John over issues of contention between them and that included questions about their respective property and wills. My findings in this regard are based, particularly, on the following:

(a) All witnesses’ evidence of Sandy’s character, which agree that she avoided conflict. That is consistent with all witnesses’ evidence of Sandy’s character. It is also consistent with what John himself describes as Sandy’s way of dealing with confrontation.

(b) The texts from Sandy and the evidence of Ray and Ms McKay which indicate Sandy met with Chris, Ray, Ms McKay and other friends without telling John and sometimes while leading John to believe she was doing something else, because she felt John would be angry at her doing so. On some occasions he was.

(c) Ray’s evidence that, in late May 2015, Sandy tried to keep her phone under her pillow so John could not monitor it, Ms McKay’s evidence that Sandy told her John would monitor her phone, texts and emails and Ms Ellenby’s evidence that Sandy could not talk over Skype when John was around.

(d) The tone and approach of Sandy’s draft letter to John of 19 February

2015 regarding the relationship property agreement and John’s querulous and unconvincing treatment of questions about this in cross-examination.

(e) Ms Wardill’s evidence and notes when taking instructions on 4

February 2015 that she did not want John to find out about the visit, that she was nervous because John would be angry with her, her request to Ms Wardill not to post anything to her address so John would not know about the change to the will and her wish to control the timing of the presentation of the contracting out agreement.

[46] Given that context I consider, on the balance of probabilities, Sandy’s genuine testamentary intentions were reflected in the draft will Ms Wardill prepared on the basis of her instructions of 4 February 2015 and 14 May 2015. Ms Wardill’s notes and evidence of her detailed instructions to draft a new will on 4 February

2015 are compelling. John’s statement under cross-examination that he did not know of the draft will until after Sandy’s death undermines his attempt to provide an alternative account, in Sandy’s words to him, of her interactions with Ms Wardill. There is no evidence Chris pressured Sandy to change the will. The medical note reproduced above is independent evidence that on 12 May 2015, two days before Ms Wardill’s visit to Sandy at the hospice, Sandy wanted to review her will. Ms

Wardill’s evidence and notes of her second discussion and instructions from Sandy on 14 May 2015 indicate Sandy retained her testamentary intention from three months earlier, albeit with some modification. The other evidence of her testamentary intentions, from Chris and Ms McKay, are consistent with that.

[47] I also consider there is a good explanation of why the formalities required for the document to be a valid will were not fulfilled before Sandy’s death. Sandy avoided conflict. She could not drive. She was confined in a hospice, in a hospital and at home during the period from 14 May until her death on 30 May. John was with her most of the time. She had kept her instructions to Ms Wardill secret from John. It would have been very difficult for her to arrange to sign the will in that period without John finding out. That is consistent with Ray’s evidence about Sandy saying in early May 2015 signing the will was becoming difficult.

[48] John’s evidence is inconsistent as to whether he knew about the draft will. His affidavit evidence was that he did and he provided an explanation of what Sandy told him about it. If that were true I consider Sandy’s account to John reflected her desire to downplay what she had done and to avoid conflict with him. However, I accept John’s evidence under cross-examination in which he stated he knew nothing about the draft will until six weeks after Sandy’s death.

[49] Given that Sandy had not told Ms McMillan of her concerns about the will, and did not tell her of her own marriage proposal that day, I do not consider it is surprising that Sandy would have assured Ms McMillan that she had her legal ducks in a row.

[50] Sandy and John loved each other. John provided good care for her and I consider Sandy was concerned to keep the peace between her and John in her last days. One way of doing that was not to tell John about the draft will and not to take steps to sign it which would have risked him finding out about it. That is consistent with her wish to avoid the conflict between John and Chris by stopping visits in the last few days before her death. I am satisfied this explains why Sandy did not take steps to attend to the formalities that would have made the draft will valid.

[51] On the basis that the draft will represented her genuine testamentary intention and that there is a good explanation for why the formalities required for the document to be a valid will were not fulfilled before Sandy’s death, I consider the draft will should be validated.

Result

[52] Accordingly I declare that the second unsigned will drafted by Ms Wardill and exhibited to her affidavit of 4 September 2015 labelled “C” is a valid will under s 14 of the Act.

[53] I am inclined to agree with the request from Ms Wardill and Mr Pasley that costs be met from the estate. If that cannot be agreed between the parties I grant leave for submissions to be filed within 20 working days of this judgment.

Palmer J