Mason v Mason [2022] NZHC 491 (17 March 2022)

Last Updated: 30 March 2022

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2021-406-20 [2022] NZHC 491

UNDER	Section 14 of the Wills Act 2007
IN THE MATTER	of the estate of Tauhuaraki Mason
BETWEEN	KIPA TAUHUARAKI IAN MEIHANA MASON Applicant
AND	ARENA KEITA MASON, RAEAIMAI JUNE NICKLIN AND MARAMA CONNIE BEATTIE Respondents

Hearing:	23 February 2022
Appearances:	Q A M Davies and J S Marshall for the Applicant M J Radich for the Respondents
Judgment:	17 March 2022

JUDGMENT OF COOKE J

• [1] By originating application dated 3 June 2021 the applicant applies for an order that an unexecuted draft will of his father, Mr Tauhuaraki Mason (Mr Mason) be declared as his last will in accordance with s 14 of the Wills Act 2007 (the Act). The application is supported by affidavits from the applicant and Mrs Constance Mason (Mrs Mason), who is the applicant’s mother and the former wife of Mr Mason. The application is opposed by the applicant’s three siblings: Ms Arena Mason, Ms Raraimai Nicklin and Ms Marama Beattie. An affidavit of Ms Arena Mason has been sworn in opposition.

MASON v MASON [2022] NZHC 491 [17 March 2022]

• [2] As matters presently stand the applicant and his three sisters share equally under their father’s properly executed will from 1979. A replacement will was drafted in 2000 but never executed, under which the applicant is bequeathed his father’s Māori landholdings to the exclusion of his sisters. He now seeks to have this will declared his father’s last will.

Background

• [3] I begin by setting out the relevant facts. This will involve making some factual findings.

• [4] Mr Mason died September 2020 at Koromiko, north of Blenheim. He was then aged 67 and living alone in a campervan. He left a will dated 6 November 1979. The executor under the will is a trustee company, now New Zealand Guardian Trustee Company Ltd. His estate is to be divided equally between his four adult children — the applicant and the respondents. Whilst the will provided for Mrs Mason by its terms, these dispositions are void as a consequence of the dissolution of their marriage in 2004.¹ On his death, Mr Mason’s assets were the proceeds of the sale of his home (which he had sold a month before his death), cash and various chattels, and interests in Māori and European freehold land in various locations around Marlborough. The estate has not yet been distributed.

• [5] The application focusses on Mr Mason’s intentions with respect to his Māori landholdings. Mr Mason had associations with Ngāti Kuia, Ngāti Apa and Rangitāne. One of the pieces of Māori land of significance was land at Anakoha Bay, a property that had been enjoyed by the family over the years. The other Māori land interests are in various parcels of land around the region where the interests were held more diversly with other Māori landowners. The evidence from the applicant and his mother is that it was Mr Mason’s intention to leave his interests in the Māori land to the applicant alone.

¹ Wills Act 2007, s 19.

• [6] In April 2000 Mr and Mrs Mason approached Mr Brian Dwyer (now His Honour Judge Dwyer) of Radich Dwyer Hardy-Jones and Clark with instructions to prepare new wills for both of them. By letter dated 4 April 2000 Mr Dwyer sent them draft wills for their consideration. Mr Mason’s draft will is the document which is sought to be validated by this application.

• [7] There is little evidence before the Court relating to the circumstances surrounding the preparation of these draft wills. Mrs Mason says that Mr Mason’s first will was prepared after the birth of their first child, Arena and at that stage they owned no land apart from a house in Picton. She says that by 2000 Mr Mason had obtained interests in Māori and European land and that he had wanted to leave his Māori land interests to the applicant. She said the new wills were prepared as a consequence. She says she recalled them reading over the draft wills and that they decided to sign them and that she was surprised to find out that they had not been executed after his death. She says “... I can only assume that while we intended to sign the wills but did not get around to doing so before we went back to the Sounds, as we usually did each year”.

• [8] There is no evidence before the Court from the solicitor who prepared the will explaining the circumstances. Among the documents are an email exchange between the applicant’s solicitors and Judge Dwyer dated 9 December 2020. In his email Judge Dwyer says:

...I remember Mr and Mrs Mason who were clients of mine living at Koromiko. I can recall being told that they were splitting up at some stage but can’t remember anything about their will instructions or any subsequent confirmation.

• [9] Judging from the email exchange Judge Dwyer was not given access to any file.

• [10] The terms of Mr Mason’s draft will involved significant changes from the earlier will which it revoked. The executors are identified as Mrs Mason, Mrs Diane Solomon and Mrs Alison Brooke. Mrs Solomon was a close friend of Mrs Mason and now lives in Australia. Mrs Brooke was an accountant, now retired. She had no

professional or personal relationship with Mr Mason following the end of his marriage to Mrs Mason that I describe below.

• [11] Under the draft Mrs Mason is bequeathed all of Mr Mason’s personal possessions (including livestock, cash etc) owned by him on his death if she survived him. Certain specific bequests are made to the children. All of the interests he held in Wakatu Corporation are left in equal shares to them, as are his interests in the land at Anakoha Bay. The applicant is left all of his other interests in Māori land. A specific bequest is made for him of his hunting and fishing equipment and Mr Mason’s wedding ring. A specific financial bequest is made to a granddaughter, Anahera Mason. The balance of the estate is left on trust to Mrs Mason as a life interest, and on her death in equal shares to his children. The application proceeds on the basis that the bequests to Mrs Mason, and her executorship, are void as a consequence of s 19.

• [12] Within a period of four months from the preparation of the draft wills Mr and Mrs Mason had separated. Their marriage was subsequently dissolved. A Matrimonial Property Deed dated 13 February 2004 was later signed. It appears to have been prepared by Mr Michael Hardy-Jones of Radich Dwyer. Under the Deed the farm property at Koromiko and associated assets (including the livestock) were treated as the separate property of Mrs Mason, and the property at Anakoha Bay and certain trucks and equipment were treated as separate property of Mr Mason. The farm property was where Mr and Mrs Mason lived during their relationship. Land in the ownership of one or other of them remained the property of that person, meaning that the Māori landholdings and other landholdings of Mr Mason remained his property. There were other provisions, including a monetary payment from Mrs Mason to Mr Mason.

• [13] Apart from the formal record of the Matrimonial Property agreement there is little evidence of the intentions of the parties at either the time of their separation in 2000, or the signing of this agreement in 2004. The changes to the property owned by each of them at this stage might have given rise to a consideration of their wills. I do not have any evidence of the consideration given to Mr Mason’s will at this stage from the solicitors dealing with the matter. Neither has Mrs Mason explained what, if any steps were taken in relation to her own will.
• [14] In her reply affidavit Mrs Mason says that they each kept their land interests separate under their agreement. She says that their separation was amicable and that Mr Mason was happy for her to keep the farm on separation. She says it was always clear what was his to give to his children, and what was her property because that was set out in the separation agreement and that “I am confident that is why he did not bother to update his Will”. She reiterates his intentions over many years were “consistent with the will drafted by Brian Dwyer in 2000”.

• [15] Ms Arena Mason says that it was not her father’s intention to leave the Māori landholding only to the applicant, and that this was never raised with them. She says that in 2019 she discussed the Māori landholdings with her father. She says that at this stage she purchased a will kit at his request and that there were some discussions about updating his arrangements. She says that he wanted to take steps to vest those interests in a whānau trust, including because he now had nine grandchildren. She says that this was discussed with her sisters and that they also suggested to him that he sell some of his European land rather than him selling his home as he needed some cash. She said that Ms Marama Beattie raised the matters with the applicant and that his response was anger, and due to this Mr Mason said that “we should just leave it for the time being”.

The relevant principles

• [16] There is no dispute that the unexecuted will does not comply with the requirements for a valid will. Section 14 of the Act provides:

14 High Court may declare will valid

(1) This section applies to a document that—

(a) appears to be a will; and

(b) does not comply with section 11; and

(c) came into existence in or out of New Zealand.

(2) The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

(3) The court may consider—

(a) the document; and

(b) evidence on the signing and witnessing of the document; and

(c) evidence on the deceased person’s testamentary intentions; and

(d) evidence of statements made by the deceased person.

• [17] In Re Estate of Campbell MacKenzie J said of the requirements:²

[The] document must meet the three requirements in s 14(1). The first is that it appears to be a will. From the cases in which the section has been applied, it emerges that this requirement is concerned with the content of the document and what it conveys, rather than its form. As well as documents which have the physical form of a will, such as draft wills and unsigned or wrongly signed wills, documents which do not have a form customarily expected of a will have been accepted as meeting this requirement. Informal documents which have been validated include documents which the deceased has prepared, such as a suicide note.³ They also include documents which the deceased has not prepared, such as a solicitor’s file note of instructions.⁴ The essential inquiry, under s 14(1)(a), is whether the document does any or all of the things described in the definition of the word “will” in s 8 of the Act. The document sought to be declared valid here meets that requirement, in that it was in a form suitable for signature.

• [18] In Re Estate of Feron Whata J described the overall approach in the following way:⁵

In Re Estate of Murray⁶ MacKenzie J helpfully essays a number of authorities dealing with section 14. Those authorities illustrate that a robust approach to the application of section 14 is called for. For my part, I also prefer to approach the interpretation of the Wills Act 2007 in a manner that gives full vent to the ostensible purpose of s 14, namely to validate documents that plainly express the testamentary wishes of a deceased person. Section 14 (2) confers a discretionary power to make a declaration on satisfaction that the document expresses the deceased person’s intention. The section is concerned with substance not form. Furthermore, in reaching a conclusion I am also afforded a broad power to consider evidence on the deceased’s testamentary intentions and of statements made by the deceased person.

² Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].

³ Re MacNeil [2009] NZHC 1347; (2009) 10 NZCPR 770 (HC).

⁴ Re Taigel [2014] NZHC 844.

⁵ Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].

⁶ Re Murray (Deceased) HC Masterton CIV-2011-435-000178, 20 December 2011.

• [19] When a will has been formerly prepared by a solicitor as a consequence of instructions from the deceased it may be more likely to be found to capture the deceased’s intentions. In Re Bishop (Deceased) MacKenzie J suggested the following approach in these circumstances:⁷

To be satisfied that an unsigned draft will expresses the deceased’s testamentary intentions, this Court must consider carefully whether the failure to sign the draft might indicate a change of mind on the part of the deceased after giving instructions for the will to be drafted. That possibility must be closely examined here. The draft will was prepared in 2009. The deceased did not die until 2013. His failure to sign the will cannot be explained by his having been prevented from signing the will by later events. It is necessary to look at other circumstances, to decide whether those exclude the possibility that the failure to sign the will was a deliberate decision, because of a change of mind. Only if those other circumstances are sufficiently compelling to exclude that possibility can the Court be satisfied that the draft will reflects the testamentary wishes of the deceased.

• [20] I agree with this general approach, which has been applied in other cases. In Re Estate of Hickford (Deceased) MacKenzie J addressed why such a will had not been executed and concluded that the deceased thought he did not need to do anything further.⁸ In Tamarapa v Byerley Moore J similarly found that the deceased either forgot about signing the draft will or did not think he needed to do anything further.⁹ A similar conclusion was reached by Gault J in Re Mitchell.¹⁰

Application of the principles in the present case

• [21] Ms Radich submitted that there was a factor that was fatal to the applicant’s application of these principles in this case. This was that his evidence, and that of his mother, were to the effect that Mr Mason intended to leave all his Māori landholdings, including those at Anakoha Bay, to the applicant. Yet the terms of the draft will did not do that — it left Anakoha Bay equally to all the siblings, with only the other Māori landholdings left to the applicant. She argued that this was a fatal mismatch between the suggested intentions of Mr Mason and the document relied upon.

⁷ Re Bishop (Deceased) [2014] NZHC 3355 at [6].

⁸ Re Estate of Hickford (Deceased) HC Napier CIV-2009-441-00369, 13 August 2009.

⁹ Tamarapa v Byerley and Anor [2014] NZHC 1082 at [39].

¹⁰ Re Mitchell [2020] NZHC 2379.

• [22] I do not accept that submission. I agree that it is relevant that the document does not fully correspond to the applicant’s evidence of Mr Mason’s intentions. But this case involves the preparation of a draft will on instructions given to a solicitor. The existence of such a document by itself carries an implication that it reflects the deceased’s intentions. That implication can then be supported by other evidence, such as that provided by the applicant and Mrs Mason that he did indeed intend to leave the applicant his Māori landholdings. The fact that the draft will only left him some, but not all of those landholdings does not mean that the draft will does not reflect his intentions. It may just mean that when it came to the manifestation of the intention in the will he decided that Anakoha Bay should be treated differently.

• [23] I also do not accept Ms Radich’s submissions that the draft will cannot represent Mr Mason’s intentions because the document clearly did not reflect what he would have wanted at the time of his death many years later. For example she argued that he plainly would not have intended Mrs Solomon or Mrs Brooke to be his executors given that they were no longer in his life and were more closely connected with Mrs Mason in the first place. In addition the draft will made provision for only one grandchild when there were many more at his death. But without suggesting a hard and fast rule the relevant intention will more likely be that existing at the time the document was created. The fact that subsequent events mean that this document is now out of date does not mean in itself that it did not reflect the deceased’s testamentary intentions at the time it was created for the purpose of s 14, particularly in a case where a formal will is prepared but simply not validly executed.

• [24] But I do accept some of Ms Radich’s other arguments, and have concluded that I cannot be satisfied that the document evidences Mr Mason’s testamentary intentions for the purposes of s 14. As MacKenzie J indicated in Re Bishop (Deceased) it is necessary to consider the reasons why a will prepared by a solicitor on instructions was not executed. The circumstances need to be sufficiently compelling to exclude the prospect that execution did not take place because there were developments that meant that the document no longer represented what Mr Mason wanted to do.
• [25] The fact that Mr and Mrs Mason had separated within four months of the preparation of this document gives rise to the distinct possibility that circumstances had changed sufficiently for him not to proceed through with the proposals. The drafts were joint wills their solicitor had prepared. Such joint wills are common for those in marriage partnerships. But here the partnership began coming to an end shortly after the wills were prepared. The same solicitors were then instructed to act for Mr Mason on the subsequent separation and dissolution. The terms of the Deed then executed in 2004 recording how their property would be divided then suggests that the joint wills earlier prepared no longer reflected his intentions. Indeed the terms of the Deed are inconsistent with the draft will. Under the draft will Mr Mason left his interests in certain chattels, including the livestock, to Mrs Mason if she survived him. Yet under the Deed the farm and all its chattels, including the livestock, were treated as her separate property, and not his property.

• [26] In those circumstances there is another plausible explanation for why Mr Mason did not execute the draft will. That is because his relationship with Mrs Mason was breaking down, leading to their separation a matter of months later. Their plan for joint wills under which they left their property to each other no longer reflected their current circumstances.

• [27] The fact that there is no evidence from the solicitor who prepared the will addressing both the circumstances under which it was prepared, and the subsequent separation and dissolution of the marriage, is problematic. When a solicitor has prepared a will it is not uncommon for that solicitor to provide an affidavit in support of an application of this kind. There is no such evidence here. I note that Judge Dwyer does not appear to have been the only solicitor involved, and neither does there appear to be information from the solicitor’s file.

• [28] It is also relevant that Mrs Mason can only presume what the reasons were for a lack of execution of the draft wills in 2000 — that they didn’t get around to it before going back to the Sounds. She also does not say what happened with her own will once there was a separation and dissolution of the marriage. I do not doubt her evidence. She is seeking to explain what she and her former husband did some 20 years ago. But her evidence does not exclude the possibility that Mr Mason became

less certain about what should happen with his property on his death and the plan for joint wills.

• [29] I accept Mr Davies argument that the focus should be on Mr Mason’s intentions in relation to the applicant, rather than Mrs Mason. The draft will appears to reflect the instructions given to a solicitor, which would suggest that he did intend to leave his Māori landholdings to the applicant. Separation and dissolution of the marriage would not necessarily change that. But on the other hand there is the evidence from Ms Arena Mason, which I also do not doubt, that the subject of Māori landholdings came up again in 2019 and that Mr Mason thought at that time that they should be left to a whānau trust, including because of the existence of the grandchildren. I accept that discussions were had with the sisters, that the applicant became involved in the discussions, but that Mr Mason then decided not to do anything because there was disagreement amongst his children. There is no evidence that at this stage it was understood that he was leaving his interests in Māori land to the applicant alone under a will as might be expected if that is what he had done.

• [30] That is also a potential explanation for why his draft will was not executed in 2000. I accept that he was attracted to the idea of leaving at least some of his Māori landholdings to his son in accordance with the more traditional values that may have been in his mind at that time, but he never came to the point of finally given effect to such an idea by executing a document to that effect. The evidence is equally consistent with these plans being part of the arrangements for joint wills with his wife which were not to follow through with due to the changes taking place in their relationship.

• [31] It must be remembered that the main purpose of s 14 is to avoid circumstances where a testator’s intentions are defeated by a failure to comply with the technicalities involved in creating valid wills. It is a provision that allows the substance to prevail over the form in those circumstances. The technicalities are themselves mechanisms to ensure that the deceased’s intentions are formally and clearly recorded. But the remedial effect of s 14 still depends on the deceased having clear testamentary intentions that are being defeated by the formalities. The section should not be utilised when there are substantial doubts about what those intentions were. When there is a document prepared by a solicitor on instructions the applicant may have a prima facie

case for the application of s 14. But the circumstances still need to be such that other explanations for a lack of formal execution can be excluded. That is not the case here.

• [32] For these reasons the application is dismissed. Normally the respondents would be entitled to costs on a 2B basis. If costs cannot be agreed the respondents may file a memorandum (no more than five pages plus a schedule) within five working days, to be responded to by the applicant (no more than five pages plus a schedule) within five working days.

Cooke J

Solicitors:

Gascoigne Wicks, Blenheim for the Applicant Radich Law, Blenheim for the Respondents