Bateman v Estate of Smedley [2018] NZHC 1349 (8 June 2018)

Last Updated: 10 July 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2715 [2018] NZHC 1349

IN THE MATTER OF	THE ESTATE OF FRANK PHILLIP SMEDLEY Deceased
BETWEEN	GRAHAM JOHN WALTER BATEMAN and GEOFFREY JOSEPH SHAW Applicants
AND	THE ESTATE OF ANNE HARRIS SMEDLEY Defendant

Hearing:	1 June 2018
Appearances:	J L Thomas for the Applicants G Stringer, A Dhanji and C Martin for the Defendant
Judgment:	8 June 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 8 June 2018 at 4.00 pm Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:..............................

Counsel/Solicitors:

J L Thomas, Schnauer and Co, Milford, Auckland.

G Stringer, A Dhanji and C Martin, Public Trust, Auckland

BATEMAN v SMEDLEY [2018] NZHC 1349 [8 June 2018]

Introduction

[1] Messrs GJW Bateman and G J Shaw, the residuary beneficiaries identified in a handwritten and unwitnessed will signed by the late Mr Frank Phillips Smedley, seek orders under s 14 of the Wills Act 2007 declaring the document a valid will.

[2] I am satisfied that such orders are appropriately made. Certain consequential orders are necessary.

Background

[3] Mr Smedley died on or about 24 June 2016. He was unmarried, had no children and both his only sibling (Kenneth) and father had predeceased him. At the time of his death his mother, who was then 94, was living in a rest home. She died two days later. Her death certificate records her as having suffered from vascular dementia for approximately seven years.

[4] In 1977, when Mr Smedley was 27, he made a will with the Public Trust appointing it as executor and trustee and leaving his estate to his parents or the survivor of them.

[5] Although his mother died leaving a will, in respect of which the Public Trustee is executor;

1. her estate is bankrupt; and

2. all the beneficiaries identified it have predeceased her.

[6] In the result, if Mr Smedley’s 1977 will governs disposition of his estate, the monies received by (now) his mother’s estate will pass on an intestacy.

[7] On a date unknown, he prepared and signed a handwritten document which he subsequently re-signed and dated 1 May 2015 and which was in the following terms:

Living Will

I Frank Smedley being of sound mind

do leave any assets I may have:

to: Marc Anderon for his education. $10,000

to: Geoffrey Joseph Shaw half the remaining assets

to Graham J W Bateman the other half of the remaining assets Sincerely Frank Smedley

[Signature of Frank Smedley]

As of May 1 2015

[Signature of Frank Smedley]

[8] It is common ground that the document is authentic in that it is in Mr Smedley’s characteristic handwriting and is signed by him (twice).

[9] Mr Marc Anderson (incorrectly referred to in the document as Anderon) is a young man who Mr Smedley tutored in mathematics for 40 weeks per year over a five year period. The Anderson family went on to become friends of Mr Smedley. Marc’s mother Angela, a registered nurse, deposes that Mr Smedley would come to their home for an evening meal each week, joined the wider family for Christmas dinner for the three years prior to his death and that she considered him to be a close family friend.

[10] She in turn describes Mr Shaw and Mr Bateman (the principle beneficiaries under the document) as lifelong friends of Mr Smedley whom he loved “like they were his brothers”. She says they were consistently a part of each other’s lives and that Mr Smedley told her stories about their friendship from a time when they were young men.

[11] Mr Smedley was apparently particularly proud of Mr Shaw’s success in athletics in which he had trained him. He was also very close to Mr Bateman. Ms Anderson says that Mr Smedley described him as his next of kin on all his paperwork
and that Mr Bateman could always “be counted on to take Frank into his home when he needed a time of recovery from injury”.

[12] She summarises the position in the following terms:

These two men stood by Frank through everything significant in life and the small things too. Frank was also part of their families lives and would go and celebrate events with them. Frank had a few other people who appeared very, very occasionally in his life but these two men were a permanent part of his life and he of theirs.

[13] On a date which is not identified in July 2015, Ms Anderson could not raise Mr Smedley on the phone and asked her father (also known to Mr Smedley) to check on Mr Smedley’s apartment. Her father later phoned to say that Mr Smedley had had a fall and that he had arranged an ambulance. He also said that his place was a mess so Ms Anderson and her mother (who had a key to the property) decided to go and clean it. They were joined by one of Mr Smedley’s neighbours, a Ms Watson, who helped with her heavy-duty vacuum cleaner and steam mop.

[14] Ms Anderson says the dining room table was littered with mail, papers and food items and that in her mother and Ms Watson’s presence she went through the papers to identify anything that might require Mr Smedley’s attention. She says that among them she found the handwritten document, referred to above, which she identified as a will. She says she showed the will to her mother and Ms Watson and then gathered up the papers she thought Mr Smedley might need to deal with and took them to the hospital. She says that Mr Smedley told her not to worry about the bills because they were all on automatic payment and that when she showed the will to him he “asked me to retain [it] for safe keeping”. She further deposes that she stored the will in her cupboard from July 2015 until Mr Smedley’s death which occurred, unexpectedly, approximately one year later. She says that until that time she had not thought further about the will because she had no expectation that Mr Smedley was about to die. And, she says, if she had “even thought that Frank would die I may have remembered the will I was storing and reminded him to sort it out”.

The legal position

[15] The applicable law is essentially uncontentious. Section 8 of the Wills Act 2007 provides that:

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) ...

[16] It is common ground that the document in issue satisfies these criteria.

[17] Section 11 of the Act sets out the following requirements for a will to be valid:

(1) A will must be in writing.

(2) A will must be signed and witnessed as described in subsections (3) and (4).

(3) The will-maker must—

(a) sign the document; or

(b) direct another person to sign the document on his or her behalf in his or her presence.

(4) At least 2 witnesses must—

(a) be together in the will-maker’s presence when the will- maker—

(i) complies with subsection (3); or

(ii) acknowledges that—

(A) he or she signed the document earlier and that the signature on the document is his or her own; or

(B) another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b) each sign the document in the will-maker’s presence.
[18] Where a document does not meet the requirements under s 11, the Court may nevertheless declare it valid in circumstances which are set out in the remedial provision of s 14. These are in the following terms:

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.

[19] Section 14 invests the Court with a discretion. As Courtney J observed in Balchin v Hall & Or,¹ the principled exercise of such a discretion should observe the purpose for which the power was conferred. Her Honour went on to state:²

If the Court is satisfied that the document in issue does represent the deceased’s genuine intentions then one would expect that an order would be made validating the document as a will. Doing so would fulfil the purpose of the power. Not doing so would result in the established wishes of the deceased being disregarded Good reasons would need to exist to refuse an order.

[20] Proof that a document expresses a deceased person’s testamentary intentions is to the usual civil standard, being the balance of probabilities, albeit that because of the importance and implications of any validation, what is required is “cogent”

¹ Balchin v Hall [2016] NZHC 837 at [9].

² At [11].

evidence of such intentions.³ Whether the document expresses the deceased person’s testamentary intentions is to be determined by a consideration of all the circumstances including those set out in s 14(3). The matters listed in that subsection are not exhaustive.⁴

[21] I take as a guiding principle McKenzie J’s observation in In re Campbell (dec’d):⁵

... where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will, or on an intestacy. Generally, the existence of the document will in itself, before its contents are considered, be an indication that the deceased person did not wish the disposition which would otherwise occur to take place.

The applicants’ position

[22] The applicants emphasise that the document is identified in its terms as a “Will” and that Mr Smedley not only signed it but took the opportunity at a later date to re-sign and date it. They say that in its terms it clearly evidenced a testamentary intention in the sense of what Mr Smedley intended should occur in respect of his assets on his death. They emphasise the close relationships which each of the beneficiaries had with the deceased and the logic therefore of provision in their favour and say that Mr Smedley’s testamentary intention is reinforced by his instruction to Ms Anderson, at the time of his 2015 hospitalisation, to retain the document “in safe keeping”.

[23] They dispute the Public Trust’s position that Mr Smedley is unlikely to have intended his mother to die with a bankrupt estate. They say that she was very elderly and in care and that he did not need to provide for her. Alternatively, they posit that she was unlikely to be able to make a new will and (assuming he predeceased her) was herself likely to die intestate.

³ Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009.

⁴ In re Campbell (dec’d) [2014] NZHC 1632 at [15].

⁵ At [18].

[24] They say the document itself is cogent evidence of an intention to depart from what he understood would occur if he did nothing – namely a disposition in favour of his very elderly mother.

The respondent’s position

[25] The Public trust emphasises that because of the importance of a declaration that a will be declared valid the evidence necessary to satisfy the Court that the document expresses the deceased’s testamentary intention must be “cogent”.⁶ It contrasts the case with the several where instructions were given to a solicitor but the deceased died or became incapacitated before the new will was prepared.⁷ It also contrasts the case with those where informal wills are prepared immediately prior to suicide⁸ and where, therefore, finality of intention can be assumed. It contrasts that with the present case where over a year elapsed between signing and dating the document and Mr Smedley’s death. It says it is unsafe to presume no change of mind during the intervening period and that as a result the Court cannot be satisfied that the document expresses [Mr Smedley’s] testamentary intention⁹ at the time of his death.

[26] It emphasises the fact that in 1977 Mr Smedley arranged for a will with the Public Trust and must be taken therefore to have been aware of the formal requirements of a valid will. It further emphasises that, in terms of that will, his mother was to inherit and that he could not have intended her legacy to have been a bankrupt estate. It says that this is particularly so because at the time the late Mrs Smedley sold her home and went into care money was made available to her son with which he bought his apartment.

[27] It says that little can be inferred from the heading to the document “Living will” because what is typically described as a living will involves instructions to care- givers during life (as for example use of ventilators or resuscitation). It says the use of the term is inconsistent with testamentary position.

6. Relying on the decision of McKenzie J in Hickford (deceased) HC Napier CIV-2009-441-000369, 13 August 2009.

⁷ For example, Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551; Re Estate of Fowler

[2014] NZHC 371, (2014) 29 FRNZ 671; Re Estate of Osborne [2012] NZHC 1846.

⁸ Re MacNeil [2009] NZHC 1347; (2009) 10 NZCPR 770 and H v P [2012] NZHC 753.

⁹ Adopting the operative words of s 14(2) of the Act.

[28] Next it emphasises the absence of formalities in the document for example the revocation of former wills, identification of the document as a “last will and testament”, appointment of an executor or formal provisions relating to debts and funeral expenses. And it says that the circumstances in which the document was identified (among other papers and meal remnants on the dining room table) is inconsistent with what an intelligent and organised man (as it says Mr Smedley must be assumed to be) would intend for a document of testamentary purpose. It suggests it would be incongruous for him to have considered such an informal document dispositive.

[29] In summary, therefore the Public Trust says the document competes with a properly drawn will in respect of which Mr Smedley’s mother was a beneficiary. It says there is no evidence of him having fallen out with his mother and that the applicants therefore fail to establish that the 2015 document expresses some new testamentary intention. It says with the document having been drawn to his attention by Ms Anderson and with his assumed knowledge of the formalities of a valid will it is inevitable that if it did truly express his testamentary intentions he would have at some stage between his release from hospital and death approximately 11 months later attended to the necessary formalities of a new will by consulting either with a solicitor or the Public Trust.

Discussion

[30] I am satisfied that the applicants have discharged their onus of establishing that the document expresses Mr Smedley’s testamentary intentions. My reasons follow.

[31] Significantly, the document is identified as a “Will”, a term typically attributed to a document providing for disposition of a person’s property after death and a meaning which, as an intelligent man, Mr Smedley must be assumed to have understood.

[32] I do not, in the context of the document as a whole regard the antecedent word “Living” as detracting from that conclusion. Although the Public Trust is correct in saying that the term “living will” characteristically applies to instructions about medical intervention in the case of incapacity, that was not the purpose of the subject
document, which by reference to “leav[ing] any assets I may have” was in my view prima facie directed to the position after death. In my view, the expression “living will” was in this case used synonymously with “ongoing instruction from beyond the grave” or, in other words, the foundation requirements of a testamentary will.

[33] There are formalities in the document consistent with it having an intended legal effect viz Mr Smedley’s recitation of the fact that “he is of sound mind”. Since capacity is a well recognised requirement of valid testamentary disposition or binding contractual promise, such recitation must have been intended by Mr Smedley to immunise a document which he otherwise considered would govern disposition of his estate from potential challenge.

[34] The document is not only signed, but re-signed (clearly at some later time and with a different pen and dated). In my view the re-signing and dating speaks either to an affirmation of intention or to identification of a failure previously to date it and a desire to correct that omission. If the former, then it reinforces the intention originally expressed (and from which Mr Smedley at no time subsequently resiled). If the latter, then it speaks to his assessment of a necessary legal requirement and a desire to satisfy it in order to ensure that the document was dispositive in terms of his estate. In either case the re-signing is in my view a sufficient counterweight to the implications the Public Trust seeks to draw from the document having been found with other less significant papers on an untidy dining table and with remnants of recent meals. And, of course, the fact that the document was signed (indeed twice) is indicative of a finality of intention not present in the “unperfected instruction” line of cases. At least in one sense, therefore, this case presents a more compelling one for validation.

[35] I regard as significant the evidence of Ms Anderson that when she identified the document and took it to Mr Smedley in hospital he acknowledged he had written it and asked her to retain the document for “safe-keeping”. Although I accept the Public Trustee’s submission that when the applicants’ counsel says “[Mr Smedley] confirmed to [Ms Anderson] that it was his will”, this goes beyond Ms Anderson’s actual evidence, I also accept what she says about the safekeeping instruction, confirmed by the fact that this is precisely what she did. By that instruction Mr Smedley explicitly confirmed in my view the importance of the document in a manner
consistent with it governing disposition of his estate on death. I accept also Ms Thomas’ submission that the absence of any subsequent indications of vacillation or reconsideration on Mr Smedley’s part, knowing that the document was in safe keeping, distinguishes the case from authorities such as Farn v Loosley.¹⁰

[36] I cannot accept the Public Trust’s submission that because, in earlier life, Mr Smedley had seen fit to prepare a formal will, he must be assumed to have recognised that the 2015 document did not meet the requirements of s 11 of the Wills Act 2001, nor the related submission that, having had the informal document drawn to his attention by Ms Anderson, he would inevitably have gone back to the Public Trust (or to a lawyer) to have his intentions properly documented if he had wanted them to have testamentary force. Mr Smedley’s formal will was prepared in 1977, 38 years previously. It assumes too much to say that, so many years later, he necessarily recalled all the formalities that attended its execution. The submission also assumes that he was unaware of the Courts’ jurisdiction under the 2007 Act to declare an informal will valid. There is no evidence one way or other in that respect.

[37] I accept that the document omits many of the formal clauses typical of a formal will. Some of these, for example recitation of the document being “the last will and testament” of the signatory or formal revocation of previous wills border on incantation and their omission does not, in my view, detract from testamentary intention if otherwise sufficiently established. Failure to identify executors and trustees is in a similar category. Again, I do not equate omission with an assumption that the document was not intended to have testamentary effect. Mr Smedley may have simply assumed that the Public Trust would administer the estate. Possibly he did not even turn his mind to the issue of who would do so. All such inquiries are speculative at this stage but ultimately what little they may say about testamentary intention is in my view outweighed by the positive indications of intention I have previously identified. And, of course, the law supplies a mechanism for the consequences of having omitted to identify executors/trustees and Mr Smedley would not be the first testator to have done so.

¹⁰ Farn v Loosley [2017] NZHC 317, [2017] 3 NZLR 383.

[38] Nor do I consider it useful to speculate about what Mr Smedley intended in terms of the solvency of his mother’s estate. For a start, there is no evidence he knew it was insolvent. If he did not, I regard his decision not to provide for his mother in his will as unexceptional. She was very elderly, suffering from dementia and in full time care. She would have had little need for money and any significant bequest in her favour may have only complicated her entitlements to state care. If on the other hand, however, he did understand her estate was insolvent and that was a situation he wished to avoid, then presumably he would have made provision in the 2015 document. To reason, as the Public Trust does, that the absence of provision signifies he did not intend the document to have testamentary affect simply makes too many assumptions against its validity. Nor do I regard the absence of evidence that Mr Smedley had in some way fallen out with his mother as significant. Her advanced age and circumstances were of themselves reasons why he may not have considered it necessary or appropriate to make a testamentary provision in her favour, irrespective of his continuing love and affection.

[39] Nor do I regard the fact that Mr Smedley’s apartment was financed from the sale of his mother’s home as being persuasive against validation. If the money was indeed an “advance” as deposed to, but without any supporting documentation, by the Public Trust’s solicitor, then it will be recoverable as such by the later Mrs Smedley’s estate. If, however, it was a gift then, for the reasons identified in para [38], I am unable to accept the Public Trust’s submission that Mr Smedley must be taken as wishing to repay it on death.

[40] By contrast, there are compelling reasons why Mr Smedley would have wished to make dispositions in favour of his identified beneficiaries. Marc Anderson was clearly a young man whom he had taken under his academic “wing” and whose family had been of considerable support to the deceased both emotionally and practically. Graham Bateman and Geoffrey Shaw were clearly lifelong friends of Mr Smedley; Mr Bateman was consistently recognised by Mr Smedley as his next of kin; and both men were an integral part of his life. I find persuasive Ms Anderson’ description of the fact that, in her observation, the deceased “loved them like they were his brothers” and that they were consistently part of one another’s lives. Although I accept the Public Trust’s submission that evidence of the proximity of a relationship between the
testator and identified beneficiary is not of itself sufficiently cogent to satisfy the requisite burden of proof, nevertheless in the context of the other matters I have identified it assists in discharge of that burden.

[41] This therefore is a case where in my view there is a clear statement of testamentary intention, undiminished by any subsequent action or statement, to which preference should be given over Mr Smedley’s previous and validly executed will. As in Re Campbell (deceased), the starting point is a document that of itself, and even before its contents are considered, indicates that Mr Smedley did not wish the disposition that would otherwise occur to take place. When, in turn, the contents of the document (including beneficiary identity) are considered and the Court weighs all the surrounding circumstances (including in particular the deceased’s instruction in relation to safekeeping) the onus cast on the applicants by s 14 of the Wills Act is, in my view, comfortably discharged.

[42] In the result, I declare the 1 May 2015 document to be a valid will. Inquiries have confirmed that no subsequent will (formal or informal) was identified in his papers nor prepared by professional advisors.

Ancillary orders

Corrections

[43] The 1 May 2015 document incorrectly refers to a bequest in the name of Marc Anderon when the beneficiary’s full and correct name is Marc James Anderson. I consider the error in relation to surname a simple clerical or typographical slip.

[44] Likewise, the second residuary beneficiary is part identified by initials only. His full name is Graham John Walter Bateman.

[45] I make orders under s 31 of the Wills Act correcting the will accordingly. Neither order is opposed by the Public Trust.

Grant of administration with will annexed

[46] The 1 May 2015 document does not specify an executor, nor can one be inferred from the tenor of the will. The case is therefore an appropriate one for a grant of administration with will annexed. Typically in such context the grant is made to the residuary beneficiary rather than next of kin.¹¹ In this case application of such an approach results in a grant in favour of Mr Batement and Mr Shaw.

[47] There is no other party who in my view has a superior claim. The Public Trust does not oppose the order. I accordingly make a grant in their favour.

Costs

[48] The applicants seek reimbursement of their actual and reasonable costs from the Estate. Given that the litigation arises out of the informality of the deceased’s last will, such application is orthodox having regard to the principles established In re Paterson (dec’d) and Squires v Nijsse and I grant it accordingly.¹² Their status as residuary beneficiaries means of course that the order has little ultimate practical effect.

[49] The Public Trust’s position is that it is legally aided. Ms Thomas records that by consent an award of costs may be made in its favour equivalent to the quantum of legal aid received with a view to repayment of that amount to the Crown. I regard that as an appropriate concession given that, as executor and trustee of Mr Smedley’s late mother’s estate, it had an obligation to administer it for the statutory beneficiaries pursuant to the Administration Act 1969. Such was recognised in the Minute of Brewer J dated 14 June 2017.

[50] I decline the Public Trust’s application for reimbursement of internal costs associated with the administration of the late Mrs Smedley’s estate which are not costs in the cause.

¹¹ Crane v Rebello (1852) 19 LT OS 192; In Re Campbell (dec’d) [1933] NZLR 817.

¹² In re Paterson (dec’d) [1924] NZLR 441 (SC); Nijsse v Squires CA53/04, 15 December 2004.

Result

[51] I make orders:

1. Declaring that the 1 May 2015 document referred to in paragraph [7] above is the valid last will of Frank Phillip Smedley, late of Auckland, lecturer.

2. Correcting the will so as to refer to Marc James Anderson (in substitution for the name Marc Anderon) and Graham John Walter Bateman (in substitution for the name Graham J W Bateman).

100. Granting letters of administration to Graham John Walter Bateman and Geoffrey Joseph Shaw with will annexed (being the validated will referred to in Order (a) above).

4. Allowing costs as provided for in paragraphs [48] and [49] above.

Muir J