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High Court of New Zealand Decisions |
Last Updated: 9 December 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-000804 [2014] NZHC 2554
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IN THE MATTER
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of the estate of PETER RICHARD
WONG
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BETWEEN
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ANDREW JAMES WONG Applicant
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Hearing:
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2 October 2014
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Counsel:
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N Penman-Chambers
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Judgment:
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2 October 2014
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JUDGMENT OF ASHER
J
Solicitors:
Hesketh Henry, Auckland.
Re Estate of Wong [2014] NZHC 2554 [2 October 2014]
Introduction and preliminary issues
[1] This is an originating application on notice for orders under s 14
of the Wills Act 2007 (the Act) declaring a document
valid as the will of the
deceased Peter Richard Wong. Reliance was placed on r 27.6 of the High Court
Rules which applies to applications
in solemn form. An application is also
made under s 21 of the Administration Act 1969 appointing the applicant Andrew
James Wong
as administrator of the deceased’s estate.
[2] There are some preliminary procedural issues. The first is the appropriate procedure. There is no specific provision in the High Court Rules (the Rules) for applications under s 14 of the Act (although this is a matter that is under review by the Rules Committee at present). However, I agree with the observation of MacKenzie J in Re Campbell that where the application is not contested, the nature of the proceeding is such that the procedure under Part 19 of the Rules is
appropriate.1
[3] Under r 19.4 a Court may in the interests of justice permit any
proceeding not mentioned in those rules to be commenced
by originating
application. There is a practice of dealing with these types of applications
under Part 19, so I give permission,
and treat this as an originating
application under that part of the Rules.
[4] The proceeding was filed in Auckland. Rule 27.10 provides that applications made under Part 27, which deals with matters involving the administration of an estate and the grant of probate, should be filed in the registry of the Court of Wellington. However, this application to declare the will valid under s 14 of the Act is not dealt with by Part 27 and instead was made under Part 19. Therefore r 27.10 does not apply. Instead the rule for determining the proper registry for filing these
proceedings is r 5.1.2 Rule 5.1 provides that where there is no defendant the
proceedings can be filed in the registry that the applicant selects. The
applicant selected Auckland and so these proceedings were
properly filed in
Auckland.
1 Re Campbell [2014] NZHC 1632 at [2].
2 High Court Rules, r 19.7(1).
[5] The second preliminary issue I need to address is the service of
these proceedings. There was an earlier will prior to
the document in question
being written. In 2002 Mr Wong had executed a will leaving his assets to his
then partner. Although efforts
appear to have been made to prepare that as a
coherent legal will, there are parts of that will which appear to be
contradictory
or nonsensical. In any event, the relationship between Mr Wong
and his former partner broke up shortly after the execution of the
will.
[6] The applicant’s solicitors Hesketh Henry have been in touch
with the former partner. He is presently living overseas
in Abu Dhabi. An
affidavit of service has shown his written acknowledgement of a proposal to
serve him by email, which also can
be seen as an acknowledgement of receipt of
those documents electronically. The service took place on 7 September
2014.
[7] I have considered also r 6.1 which sets out certain methods of
service which do not include service by email. However,
that rule is not
prescriptive and sets out certain methods of service, but not all methods of
service. Under r 6.7 service by a
method agreed to in writing by parties is
sufficient service on that party.
[8] In this present electronic age, when a party agrees to electronic
service and is so served, and the Court is satisfied that
there is an
acknowledgement of that service, this can be sufficient service, relying on r
6.7. That is the position here.
[9] It is also the position in relation to the three surviving relatives of Mr Wong. They also have acknowledged electronic service. In my view r 6.7 applies to those incidents of service as well, and that has been satisfactory service. The purpose of service is to ensure that the documents or proceeding are brought to “the personal
knowledge of the person whose concern it is.”3
[10] It is not surprising that these parties have agreed to service and taken no steps. The evidence I have before me indicates that Mr Wong did not have ongoing
relations with his former partner or close relations with his siblings.
I might add that
his siblings appear to have acted very responsibly
throughout the unfortunate events surrounding his death.
Should this Court declare the document a valid will?
[11] It is necessary at this point to set out the sad
background behind this application.
[12] The document in question is undoubtedly a suicide note. Mr Wong
died by suicide on 17 July 2012. It seems that there had
been adverse
developments in his life in the months prior to his death.
[13] Police officers attending his home found two envelopes on a table in
the main bedroom. One of those envelopes was addressed
to Ms Sarah Cook, a
friend of Mr Wong. It contained the document which is in question in this
application.
[14] The note is confirmed by Ms Cook as being in Mr Wong’s
handwriting. It is an unsigned, undated and unwitnessed note.
It therefore
fails entirely to comply with the requirements for a valid will set out in s 11
of the Act.
[15] It is necessary to set out the full contents of the
note:
Sarah, I entrust you to act for me.
Please make sure all of the following instructions are done. This is the
last favour I need to ask from you.
- All of the girls things, beds, food in freezer, dry food and anything
else of theirs is given to Jolyn (breeder) 022-1126-0891.
He will already have
the girls at this point. I will tell him that you will contact him for their
things.
- All of my possessions –
divide up 3 ways - Sarah
- Rae
- Melissa
- ¼ share of family home.
Divide up 4 ways - Sarah
- Rae
- Melissa
- Miia & Suzzie
- Pls make sure I am cremated and my ashes are scattered at Piha with
Erikka’s.
- Pls make sure there is NO service, simple and NO family
members.
- Pls contact George Howard, 7 Stream Wharf Lane, Woolston, CHC –
027-245-7766. Give him my letter.
Finally, Sarah, Rae & Melissa thank you for supporting me and making me
part of your lives. I love you all very much.
[16] The references to “Sarah”, “Rae” and
“Melissa” are to three close friends of Mr Wong,
namely Ms Cook, Ms
Ransfield and Ms Bentey. They also have all been served with the proceeding.
The reference to Miia and Suzzie
is to Mr Wong’s two dogs. They are also
referred to as “the girls”. The reference to “1/4 share of
the
family home” is a reference to Mr Wong’s quarter share of the
family home which had been sold, that sum being held for
Mr Wong in his
mother’s solicitor’s trust account. If this document is a valid
will it supercedes the earlier will of
2 May 2002. I should add that the primary
beneficiary of the 2002 will was a dog called Erikka.
[17] 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.
[18] The three requirements under s 14 for a will to be declared valid are that the document must appear to be a will, must nevertheless not comply with s 11, and
must come into existence in or out of New Zealand. Under s 14(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”.
[19] There can be no doubt that at the heart of this exercise is a
consideration of whether the non-complying document is indeed
intended by the
deceased to be a statement of that deceased’s testamentary intentions.
Under s 14(3) the Court may consider
the document, and evidence of its signing
and witnessing, and evidence of the deceased’s testamentary intentions,
and evidence
of statements made by him.
[20] There is not a great deal of circumstantial material regarding Mr
Wong’s intentions. An affidavit of Ms Cook shows
that he was a relatively
solitary man, but one who did have good friendships. He lived alone and was
clearly a dog lover.
[21] In considering whether the document expresses the deceased
person’s testamentary intentions the matters listed in subs
(3) are not
exhaustive. There are no particular rules dictating the circumstances that
apply. Professor Peart in an article written
before the Act came into force
observed:4
The test in s 14 is not an objective one. It is specific to the particular
deceased person. No two cases are necessarily the same.
The wills may suffer
from the same defects, but in the one case the Court may conclude that the
document does express the deceased’s
testamentary intentions, whereas in
the other it does not. The 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.
(references omitted)
[22] Caution must be exercised when considering Australian decisions, as
their equivalent of s 14 has different words.
[23] MacKenzie J in Re Campbell observed in July 2014 that there
had been approximately 80 applications under s 14 since the Act came into
force.5 In all but
4 Nicola Peart “Where There is a Will, There is a Way – A New Wills Act for New Zealand”
(2007) 15 Waikato Law Review 26 at 35.
5 Re Campbell, above n 1, at [17].
four cases the document concerned had been declared valid. In only two cases
had an application been refused. He noted, and I respectfully
agree:6
The preponderance of successful applications does however indicate that the
evidential burden on a s 14 applicant is not subject to
a high
threshold.
[24] 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 clear
on the balance
of probabilities that the document is intended to express the
deceased person’s testamentary intentions.
[25] There have been a number of cases where informal suicide notes have
been held to be wills under s 14.7
[26] Section 8 sets out the meaning of “will”. The document
must appear to be a “will”, but that does
not mean it has to be
called a will or follow the form of a will. Section 8(1) provides:
8 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.
[27] In this case the document was made out by an actual person, Mr Wong.
It disposes of property to which he accurately considered
he was entitled.
Clearly it is
6 At [17].
intended to dispose of that property
following his intended death by suicide. It therefore has the crucial features
set out in s
8(1)(b) of a will in that it is intended to dispose of his property
after his death.
[28] Further, Mr Wong does appear to dispose of it to a personal
representative. Although the words are informal it seems clear
that he intends
Ms Cook to act as an executor and administer the estate by disposing of the
property according to the will.8
[29] The disposition of part of his estate to his two dogs is likely to
be invalid, but I do not need to rule on that in this
decision. If that is so
there is likely to be a partial intestacy in relation to that aspect of the
estate. However, in all other
respects the dispositions are intelligible and
can be implemented.
[30] I am satisfied that the gateway provisions of s 14(1) are satisfied,
and that the document expresses Mr Wong’s testamentary
intentions. I
therefore propose making an order declaring the will valid as the last will of
Mr Wong.
Application to appoint applicant administrator of the deceased’s
estate
[31] Ms Cook does not wish to be the executor of the will. Her reasons
are strong and personal, and have been accepted by the
Mr Wong’s siblings.
Section 21(1) of the Administration Act 1969 provides:
21 Discharge or removal of administrator
(1) Where an administrator is absent from New Zealand for 12 months without
leaving a lawful attorney, or desires to be discharged from the office of
administrator, or becomes incapable of acting as administrator or unfit to
so act, or where it becomes expedient to discharge or remove an administrator,
the Court may discharge or remove that administrator, and may if
it thinks fit appoint any person to be administrator
in his place, on such
terms and conditions in all respects as the Court thinks fit.
(emphasis added)
[32] Ms Cook desires to be discharged from her office. It is accepted
in the circumstances administrator includes an executor.
Because I am
satisfied it is the
8 Section 6 of the Wills Act 2007 defines “personal representative” as including an executor.
best thing to do in the interests of the beneficiaries, I discharge her as
the executor of Mr Wong’s estate. In her place
I appoint Andrew James
Wong, the deceased’s brother. Although he has little to gain he appears
to have responsibly taken on
the burden of administering this
estate.
Result
[33] There is an order declaring the handwritten document referred to in
[16]
above, as the last will of the deceased Peter Richard Wong.
[34] There is an order discharging Sarah Cook as administrator of the
estate of Peter Richard Wong and appointing Andrew James
Wong of Auckland,
financial controller, in her place.
[35] The costs of this application are to be borne by the
estate.
...................................
Asher J
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