Caird v Caird [2018] NZHC 1605 (2 July 2018)

Last Updated: 9 August 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-926 [2018] NZHC 1605

UNDER	the Wills Act 2007
IN THE MATTER OF	an application for an order that the will of Robert Leslie Caird be declared valid
BETWEEN	PETER LEONARD CAIRD AND ALASTAIR FREDERICK CAIRD Applicants
AND	HOLLY CAIRD Respondent
AND	GRAHAM ROSS BUTTERFIELD Party in Support of Application

Hearing:	26 June 2018
Appearances:	P Maciaszek for Applicants D Lester for Party in Support of Application S Clay for Directed to be Served
Judgment:	2 July 2018

JUDGMENT OF MANDER J

[1] The applicants, Peter and Alastair Caird, seek a declaration pursuant to s 14 of the Wills Act 2007 (the Act), declaring a document to be the valid will of their deceased brother, Robert Caird.

[2] Robert died on 8 August 2017. He had not executed a valid will. His immediate next of kin were the two applicants, being his surviving brothers, and another brother, Murray Caird, who predeceased Robert. Murray is survived by his

CAIRD v CAIRD [2018] NZHC 1605 [2 July 2018]

daughter, Holly Caird. In the event of intestacy, Robert’s estate will be distributed in equal shares between the applicants and Holly.¹

[3] The document which is sought to be validated as Robert’s will is a note that was taken by his close friend, Graeme Butterfield, some two months before Robert’s death. The applicants bring their application to validate this document as Robert’s will on the basis it records the testamentary intentions of Robert. The application is opposed by Holly.

[4] The application is supported by a significant amount of evidence from relatives and friends of Robert, including Mr Butterfield. An affidavit from Holly and her mother was filed in opposition. None of the deponents were required for cross- examination and the application proceeded on the unchallenged content of the filed evidence.

Background

[5] Robert had no current partner, spouse, or children at the time of his death at the age of 65 years. His parents predeceased him. His immediate family were his brothers and their children.

[6] Throughout his life, Robert had a very close relationship with Graeme Butterfield. They met at secondary school and were described in the evidence as inseparable. They worked together on various farm blocks they developed and acquired adjacent farming properties. At one point, they farmed together in partnership. In more recent times, Mr Butterfield spent significant periods of each week living at Robert’s residential property at 49 Woodside Common (the Woodside Common property). After the Canterbury earthquakes, Mr Butterfield lived at the Woodside Common property for several years on a full-time basis.

[7] Indicative of the nature of their friendship, the trust they placed in each other, and the intermingling of their affairs, were the arrangements they made relating to Mr Butterfield’s acquisition of a block of land at Dunsandel on which Mr Butterfield

¹ Administration Act 1969, s 77.

proposed to construct a dwelling. The land was acquired in the name of Robert on trust for Mr Butterfield, apparently for the purposes of a potential taxable activity he contemplated undertaking on the land, but which did not eventuate. In the event, and with Mr Butterfield’s permission, Robert used this land to secure a loan to meet his financial needs. Initially, this was to fund an ongoing dispute with his insurance company and, subsequently, to raise more money for the purpose of his travels. That loan was repaid in full in January 2017.

[8] In the last year before Robert’s death, Mr Butterfield was spending less time at the Woodside Common property, staying around three or four nights per week. This was because he had installed a Portacom building on the Dunsandel land in preparation for the construction of a house on the site.

[9] It is indisputable on the evidence that Robert’s relationship with Mr Butterfield was very important to him. Although Robert had a number of other good friends with whom he travelled overseas and assisted in various ways, Mr Butterfield was described in the evidence as like a member of the family who would attend Christmases and other family occasions. Robert also had strong affections for his family and, although he had a bad falling out with his late brother, Murray, he was in contact with his two other brothers, Peter and Alastair, on a reasonably regular basis.

[10] Robert developed a particularly strong bond with his four nephews. He followed their school and sporting activities with great interest, and, after they had grown to young men, they would regularly contact Robert and visit him at his Woodside Common property. It is apparent that Robert’s strong relationship with his nephews arose from a male bonding between uncle and nephew and their shared interests. Robert had less involvement with his nieces. Notwithstanding his estrangement from Holly’s father, Robert retained an affection for both her and his other niece, Greta. However, his relationship with his two nieces was not as strong as that which he enjoyed with his nephews. He had less in common with his young female relatives.

[11] Robert was a generous person who at the time of his sudden death was described as seeking to live his life to the fullest. He had undertaken a number of
overseas trips and funded friends to accompany him. A number of the deponents referred to the financial assistance he wished to provide to Mr Butterfield for the construction of the new dwelling in Dunsandel.

[12] The Woodside Common property had been damaged in the Canterbury earthquakes. Robert, who had received a sum from the Earthquake Commission and an initial $200,000 part payment from his insurance company, was engaged in an ongoing process to settle his claim, and Mr Butterfield assisted him with this. However, Robert did not spend the money he had received on the Woodside Common property. He chose to use some of it to fund his lifestyle, including international travel and to retire debt. It is apparent that Robert’s intention was to apply the proceeds of the final insurance settlement in a similar way. Robert discussed his intentions in that regard with his brothers, Mr Butterfield, and his close friends. He would also periodically discuss with them the distribution of his property in the event of his death.

[13] Robert suffered a stroke in July 2017 and was admitted to Burwood Hospital. His condition was not viewed as life-threatening, and he was visited by Mr Butterfield on Sunday 6 August, at which time he appeared fine. However, the following day he deteriorated. He became incapable of providing instructions for a will, and died the next day.

[14] The net assets of Robert’s estate can broadly be summarised as follows:

(a) The Woodside Common property (RV on land value at 1 August 2016 being $260,000).²

(b) The net balance of the insurance settlement of $876,568.95. This sum was, in the ordinary way, paid to the mortgagee bank which deducted
$202,768.21 to clear the mortgage.

2. Robert was also the registered proprietor of two other properties. A property at 31 Downing Street, Christchurch, was held on trust by Robert and his brother, Alistair, for Alastair’s son, Jasper. There was also the property at 1299 Kinga Road, Dunsandel, which Robert held on trust for Mr Butterfield. There appears to be no dispute that Robert did not have any beneficial interest in these properties.
   • (c) Household chattels, a Mitsubishi motor vehicle and artworks (value unknown).

[15] From the estate’s assets there are a number of debts and expenses that are required to be met.

[16] There is no evidence that Robert ever executed a will. In the years prior to his death, Robert expressed to both Mr Butterfield and other family members and friends his wishes for the distribution of his property in the event of his death. Mr Butterfield and Robert also regularly discussed that he did not have a will and that he needed to get one. Mr Butterfield deposed that he raised the issue with Robert on a number of occasions, particularly because their property and financial affairs were, to some extent, linked. He recalled specific conversations to that effect on Christmas Day 2016, and thereafter when Robert received the interim insurance payment of $200,000 in January 2017 which he used to pay the $170,000 debt secured over the Dunsandel property.

[17] In April of that year, both Mr Butterfield and Robert went to a solicitor that Robert knew who practised at a suburban law office. On that occasion the office was closed. They continued to discuss the need to sort their property matters out and sign wills. Unfortunately, nothing eventuated. Efforts were made to engage the solicitor, but, on a chance encounter, Robert was advised by the solicitor that, for health reasons, he was not doing much legal work and he was referred to another lawyer. Robert did not follow this up.

[18] Robert did not appear to have a particularly diligent approach to his personal and financial affairs. His brother, Peter, deposed that Robert was focussed on his lifestyle, which included travelling overseas with friends, and that he was not particularly concerned about the condition of the Woodside Common property, preferring to apply the insurance money to other purposes. He was noted to be quite untidy at home, did not cook well for himself in the last year, and was not particularly diligent with his medication.
[19] Robert was described by his other brother, Alastair, as a person who very much lived for the moment, particularly in the last few years of his life. He was noted to be “quite carefree with his money” and that he did not plan to apply the insurance settlement towards insurance repairs. He intended to enjoy those funds and continue to live in the significantly compromised Woodside Common property indefinitely. Robert would often borrow money to help finance his lifestyle.

[20] A close friend and neighbour of some 35 years, Barry Burgess, who was privy to many personal and financial aspects of Robert’s life, described his friend’s spending habits as becoming erratic later in life, and that he spent any money that came to him, including insurance settlement monies, quite liberally on lifestyle and personal expenses. It is against that background that, in June 2017, the document sought to be validated as a will came into being.

The document sought to be validated as Robert’s will

[21] One evening while Mr Butterfield was preparing dinner, he and Robert were seated at the table in Robert’s kitchen. They had discussed Robert’s insurance claim, and the subject of him making a will came up again. Reference was made to Robert having travelled to Vietnam earlier in the year and the significant complications that could have arisen for Mr Butterfield if anything had happened to Robert because of the then outstanding $170,000 debt secured over the Dunsandel property.

[22] Robert recognised that he needed a will and it was resolved that Mr Butterfield would record what he wanted to have included in his will. A pen and a piece of paper, which was the back of a letter from a bank, were located. Mr Butterfield recorded how Robert wished to dispose of his property. Each of the items he noted related to their discussion. After its completion, Robert told him to put it in the “top drawer”. This was a reference to the top drawer of a chest of drawers in a room Mr Butterfield used at the Woodside Common property for documents that needed to be kept safe, such as warranties for appliances, insurance correspondence, bank documents and the like. The handwritten note stayed in the top drawer until Robert’s death. No changes were made to the document in the short intervening period.
[23] The note is not extensive. The essence of the document, under the heading “Will”, are seven listed items which can best be described as a “shorthand” record of how Robert wished his estate to be distributed. The note is largely unintelligible on its face without further explanation. The handwritten note is reproduced as follows:

FOCUS

Reason	= $170 000 185000 WILL	7 200 Plus
1	MORTGAGE 200000	Pay
		Funeral
2	MITSI CAR SOLD	Plus Money
3	200,000	Owing
4	HOUSE 4 BOYS – Reasons
5	GIRLS 50,000 each
6	SHARON
7	SPLIT 6 WAYS

7200

[24]

Above the underlined word “WILL” there are a number of words and figures. Mr Butterfield explained that the word “Reason” in the top left corner of the note and the figure “$170,000” was a reference to the $170,000 which Robert had previously borrowed. As already observed, that loan had been repaid from the $200,000 received as the initial part of the insurance settlement in January 2017. In the opposite corner of the note there is the word “FOCUS”, which Mr Butterfield explained referred to an additional debt of $15,000 owed by Robert for professional services regarding his earthquake claim. The “185000” underneath “FOCUS” was the approximate total of the Dunsandel mortgage indebtedness ($170,000) and the Focus debt ($15,000). Another figure, “7 200”, was described by Mr Butterfield as referencing a temporary loan which he had made to Robert prior to Christmas 2016 which was yet to be repaid. These notations were made during the initial discussion the two men had regarding the need for Robert to formally record how he wished his property to be distributed in the event of his death.

[25] There then follows seven listed items under the heading “WILL” which the applicants maintain record Robert’s testamentary intentions:

1

“ MORTGAGE 200000 Plus Pay Funeral Plus Money Owing”.

Mr Butterfield explained this referred to the mortgage over the Woodside Common property which Robert wanted to be paid off out of the final cash settlement from the insurance claim. It was believed at the time that the mortgage was around $193,000, but was rounded up to “200000” to include payment of his funeral costs and other indebtedness. Robert was aware that if he died he would not have sufficient money in his bank accounts to pay his debts and funeral expenses, and that these would have to be settled from the further settlement money he expected to receive. The global figure was intended to include the $7,200 to Mr Butterfield, and to repay a loan provided by his nephew, James.

(b)

“ 2 MITSI CAR SOLD”. Mr Butterfield explained that Robert was in the process of selling his Mitsubishi motor vehicle. Robert wished to provide a vehicle for Mr Butterfield. He did not consider the Mitsubishi would be suitable for Mr Butterfield’s needs, but intended to sell it and buy him a utility vehicle. The word “SOLD” beside the reference to the Mitsubishi vehicle was to denote Robert’s intention that it be sold and a utility vehicle bought in its place for Mr Butterfield.

3

“ 200,000”. Mr Butterfield’s evidence was that item 3 was a gift in

the sum of $200,000 which Robert wished to make as a specific bequest to him. Robert told him that he wanted to give him that money as a contribution towards the construction of his dwelling on the Dunsandel land, and that he was very keen to assist Mr Butterfield with that cost.

4

“ HOUSE 4 BOYS - Reasons”. Mr Butterfield deposed that they

discussed the reasons for Robert’s intentions regarding his house, but that these were not recorded by him. The term “Reasons” was a reference to what they discussed, namely that Robert had a much closer
association and engagement with his four nephews compared to his relationship with his two nieces.

5

“ GIRLS 50,000 each”. This records Robert’s intention to provide

a specific legacy of $50,000 to Alastair’s daughter, Greta, and his late brother Murray’s daughter, Holly.

6

“ SHARON”. This was a reference to Robert’s intention to gift to

his friend, Sharon Te Hae, a particular painting called “Black Friday”. Ms Te Hae was a friend of Robert’s to whom he had extended some kindness. Robert had provided her with accommodation after her home had been damaged in the earthquakes, and she had lived at the Woodside Common property with Robert and Mr Butterfield for some two years. While they had lived together and, subsequently, in the course of their regular contact, Robert talked to her about making a will and his intentions in that regard. The reference in the note to “SHARON” was to a particular painting Robert had told Ms Te Hae that he wished to gift to her.

7

“ SPLIT 6 WAYS”. Mr Butterfield deposed that this recorded

Robert’s wish that if there were any remaining assets, apart from the house and the balance of the insurance proceeds, they were to pass to his six nieces and nephews in equal shares.

[26] Each of these items were discussed on that evening in the kitchen and the note was taken to record Robert’s wishes. It was intended that from this note Robert would proceed to have a will prepared to reflect these intentions, but the note remained in the top drawer.

The application

[27] The application to validate Mr Butterfield’s note is based on it being a written record of Robert’s testamentary intentions, communicated by him and recorded by Mr Butterfield in the knowledge that it was necessary for Robert to have a will formally prepared and executed. The note was specifically placed in the top drawer
of the cabinet with a view that this would be done. Unfortunately, Robert died less than two months later without having taken such steps.

[28] Section 14 of the Act provides as follows:

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.

[29] It is now well recognised that the Court is entitled to take a robust approach to the application of s 14.³ In making the assessment required by the section, the Court may consider both the document itself and evidence of statements made by the deceased person regarding their testamentary intentions.

[30] Mr Butterfield’s note constitutes a “document”.⁴ That document does not comply with the requirements of execution and attestation of s 11 of the Act, and it came into existence in New Zealand. The requirements of s 14 that call for assessment in this case are:

3. Re Estate of Feron [2012] NZHC 44, [2012] NZLR 551 at [11], applying Re Estate of Murray HC Masterton CIV-2011-435-000178, 20 December 2011.

⁴ Wills Act 2007, s 6:

...

document means any material on which there is writing.

(a) whether the document appears to be a will; and

(b) whether I can be satisfied that the document expresses Robert’s testamentary intentions.

Does the document appear to be a will?

[31] The requirement that the document appear to be a will is concerned with what is conveyed by the content of the document rather than its form.⁵ The essential inquiry 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.⁶ Section 8 of the Act provides as follows:

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.

...

[32] It follows that whether a document appears to be a will turns on whether the document has the effect of disposing of a person’s property when he or she dies. In reaching a conclusion as to whether a document expresses the testamentary wishes of a deceased person, a Court is entitled to consider evidence of the deceased’s testamentary intentions and of statements made by the deceased person.⁷

[33] In Re Estate of Feron, Whata J addressed a similar issue to that which arises in the circumstances of this case. There, the deceased had given verbal instructions to her solicitor to update her will. The solicitor had taken notes for the purpose of

⁵ Re Estate of Campbell [2014] NZHC 1632 at [11].

⁶ Re Estate of Campbell, above n 5, at [11].

⁷ Re Estate of Feron, above n 3.

preparing a new will, but the deceased died before a draft will could be executed. In determining whether the solicitor’s note “appeared” to be a will, Whata J observed that “notes being notes”, the reader was required to fill numerous gaps to make sense of the words used. The Judge described the notes, together with an email, as providing “the skeleton for a will”.⁸

[34] In determining whether that was sufficient for the purposes of s 14, Whata J approached the issue with the curative purpose of s 14 in mind. He was content to approach the concept of “appear” on a robust basis provided he could be satisfied “the skeleton” document represented the intentions of the deceased. I adopt the same approach. Whata J also observed that the weaker the documentation, the stronger the evidence was required to be to show the document represented the intentions of the deceased.⁹ In that case, the Court had the benefit of direct testimony from the deceased’s solicitor who had made the detailed notes. Similarly, in the present case, I have the evidence of Mr Butterfield, the maker of the note, who recorded Robert’s wishes.

[35] Having reviewed the document and the unchallenged evidence of Mr Butterfield, I am satisfied the note appears to record how Robert wished to have his property disposed of after his death. The essence of the note comprises the heading “WILL”, underneath which seven items are listed. Certain of those items, on their face, are capable of being understood as purported dispositions of property:

HOUSE 4 BOYS

GIRLS 50,000 each.

7 SPLIT 6 WAYS

[36] The other listed items cannot from the words alone be discerned as communicating a disposition of property. The key issue therefore is whether the document, read as a whole and with the benefit of Mr Butterfield’s explanation of his notations, provides a skeleton or framework that can be held to represent the intentions of the deceased.

⁸ At [18]

⁹ At [19].

[37] Mr Lester, who appeared on behalf of Mr Butterfield in support of the Caird brothers’ application, noted that s 8(1)(b)(i) of the Act defines a will as meaning a document that disposes of property to which the deceased is entitled. There is no requirement for the document to dispose of all the deceased person’s property. He submitted that it was sufficient that only parts of the document could be read as indicating a disposition upon the person’s death of some property in order for the document to qualify under s 14 as having the appearance of a will. I accept that submission, but, regardless of its correctness, I am satisfied that, when taken as a whole, the document appears to express Robert’s testamentary intentions.

[38] Because of the deficiencies in the wording of the document and the opaqueness of some of the items listed under the heading “WILL”, it is necessary that the document, insofar as it purports to express the intentions of the deceased, be supported by strong evidence that can provide me with sufficient confidence that the document accurately reflects the deceased’s intentions. If I am so satisfied, then the document in its entirety can be validated as expressing those intentions. It follows therefore that the question of whether the document has the appearance of a will cannot be divorced from the second issue of which I must also be satisfied, namely, that it expresses Robert’s testamentary intentions.

Does the document express Robert’s testamentary intentions?

[39] This Court has remarked that a person who in good faith sets out to express his or her testamentary intentions should not have those intentions thwarted by technicalities, and that the Court should endeavour to give effect to the deceased person’s intentions.¹⁰ Where there is evidence of the person’s testamentary intentions, it is better that they be given effect, in preference to the disposition of property which would take effect under any previous will, or in the situation of intestacy.¹¹

[40] The existence of the document will of itself be an indication that the deceased person did not wish the disposition which would otherwise occur to take place.¹² However, it must be established on the balance of probabilities that the evidence as a

¹⁰ Re Estate of Wong [2014] NZHC 2554 at [24].

¹¹ Re Estate of Campbell, above n 5, at [18].

¹² At [18].

whole, including evidence of the will-maker’s statements and testamentary intentions, that the document expresses that person’s intentions.¹³ The test is not an objective one. It is specific to the particular deceased person and no two cases will necessarily be the same.¹⁴ Any evidence which may assist to determine that question may be taken into account.¹⁵

[41] Extensive evidence was filed to demonstrate the document sought to be validated recorded Robert’s testamentary intentions. It is necessary to review that evidence in some detail. The most convenient approach is to review the evidence as it relates to each of the seven items in the document which it is contended represent the intended disposition of Robert’s property when he died.

“ 1 MORTGAGE 200000 Plus Pay Funeral Plus Money Owing”

[42] The Woodside Common property was subject to a mortgage, which the evidence indicates had an approximate balance in the region of $200,000. There is evidence of other debts which would need to be settled from the proceeds of Robert’s estate in the ordinary way. It was anticipated that the final insurance settlement money would meet these debts. In that regard, I note the evidence that upon receipt of the part payment of $200,000 from the insurance company, Robert immediately paid the outstanding $170,000 debt secured over the Dunsandel property. I am satisfied that

1

the notation “ MORTGAGE 200000 Plus Pay Funeral Plus Money Owing”
expresses Robert’s testamentary intention that, in the ordinary way, before any distribution from his estate, his outstanding debts and funeral expenses were to be paid.

“ 2 MITSI CAR SOLD”

[43] Mr Butterfield’s evidence was that Robert was in the process of selling his Mitsubishi motor vehicle, and that he wanted to give him a vehicle but the Mitsubishi was not suitable. Mr Butterfield deposed that Robert intended to sell that vehicle and buy him a utility vehicle. The word “SOLD” beside the reference to the Mitsubishi

¹³ Re Estate of Campbell, above n 5, at [16]; Re Estate of Wong, above n 10, at [24].

¹⁴ Re Estate of Campbell, above n 5, at [16].

¹⁵ At [15] and [17].

vehicle was said to record Robert’s intention that this vehicle be sold and a utility vehicle purchased for Mr Butterfield in its place. There is other evidence relating to this subject.

[44] Ms Dorothy Forbes was a close friend of Robert who regularly had discussions with Robert regarding his wishes as to whom his property would pass if he died. She deposed to Mr Butterfield being a very close friend of Robert, and of Robert’s wish to buy Mr Butterfield a new utility vehicle, as he had promised. This was discussed at the same time Robert expressed his wish to allow Mr Butterfield to continue to live at the Woodside Common property for as long as he needed until the house Mr Butterfield was building for himself was completed. Robert told her that he would look after Mr Butterfield in other ways because of them having been so close, and Mr Butterfield having always been so helpful to him over the years, particularly in relation to Robert’s ongoing insurance claim.

[45] Robert’s intentions in this regard were also reflected in the evidence of Ms Colleen Johnson who had known Robert for some 15 years prior to his death. She cleaned the house at Woodside Common and was friends with Robert. She recalls a number of occasions in the years before his death, and specifically on one occasion two weeks before he died, when they were having a hot drink and a chat together. Robert referred to the contents of his house passing to Mr Butterfield, and that he would receive a motor vehicle. Robert also said that Mr Butterfield would be able to stay at the property for as long as he required before it passed to his four nephews. She confirmed that Mr Butterfield was a very close friend of Robert, who would often live at the Woodside Common property.

[46] Alastair Caird also recalled having a conversation with Robert, outside his barn on his farm property, on Saturday 8 July 2017, shortly before his brother’s death. They talked about Robert’s intention to make a payment of $200,000 to Mr Butterfield and to “buy [Mr Butterfield] a new ute”. Alastair deposed that he is certain the note made by Mr Butterfield in the preceding month reflected Robert’s wishes as to the passing of his assets as he had understood them from his discussions with his brother.
[47] Having regard to this evidence, I am satisfied it was Robert’s intention to provide Mr Butterfield with a utility vehicle in the event he had not made such provision for him prior to his death, and that the second item noted in the document represented that intention.

“ 3 200,000”

[48] Both of Robert’s brothers, Peter and Alastair, deposed to Robert’s intention to make a payment of $200,000 to Mr Butterfield from the expected cash settlement of the insurance claim. As previously referred, Alastair can recall a specific conversation only a matter of weeks before Robert’s death in which he said that Mr Butterfield was to receive a payment of $200,000. This accorded with earlier conversations when Robert, on a number of occasions, had said to Alastair that he would make a significant payment to “his best friend”, to assist Mr Butterfield in the construction of his house at Dunsandel.

[49] Robert had also expressed this intention to Ms Te Hae. Robert stated to her over the course of the two to three years before he died that he was going to give Mr Butterfield the sum of $200,000 to assist him with the construction of his house. This was to be from the substantial cash settlement from the Woodside Common insurance claim. Robert’s intention to buy Mr Butterfield a utility vehicle when he received the settlement money was also spoken of on those occasions.

[50] I am satisfied that it was always Robert’s intention to make a gift to Mr Butterfield in the sum of $200,000 in recognition of all that Mr Butterfield had done for Robert over his lifetime, and in recognition of the closeness of their relationship, which was acknowledged by family members and other persons who had a close relationship with Robert. The $200,000 gift was seen by Robert as a way of assisting Mr Butterfield with his Dunsandel property. That Robert would make provision for Mr Butterfield in this manner was not directly disputed in evidence filed by Holly in opposition to the application. I am therefore satisfied that the notation in the document does accurately reflect Robert’s testamentary intention that there was to be a gift to Mr Butterfield of $200,000.

“ 4 HOUSE 4 BOYS”

[51] Mr Butterfield’s evidence was that for the last several years, Robert had expressed a clear view that the Woodside Common property was to pass in equal shares to his four nephews who would be able to undertake the necessary repairs. This reflected the strong relationship that Robert had with his four nephews. Both Peter and Alastair Caird deposed that Robert had always intended for the Woodside Common property to pass to his four nephews in recognition of their relationship, which Peter acknowledged was much closer than his own relationship with Robert prior to his death.

[52] Alastair similarly deposed that during the course of numerous discussions he had with Robert, his brother would regularly state that he intended to leave the Woodside Common property to his four nephews, although he had stipulated that Mr Butterfield was to have the use of the house until such time as he finished the construction of his own dwelling at Dunsandel. There was also evidence sourced from persons outside the family that this was Robert’s testamentary intention.

[53] Ms Forbes deposed that Robert confided in her that his brothers each had significant assets of their own and that he had fallen out with his brother, Murray, before he died. She referred to Robert being very clear that he wanted his house to be divided equally between his nephews, although she understood they were the three sons of his brother, Peter. Robert wanted the house to go to his nephews because they were very helpful and attentive to him.

[54] Ms Johnson also referred to seeing Robert’s four nephews at Woodside Common, and that she knew Robert held them in high regard. The nephews visited him on a regular basis and assisted Robert around the house. Ms Johnson recalls a particular conversation when she expressly asked Robert what he was going to do with his property when he died. Robert said to her that Mr Butterfield and Ms Te Hae would be able to stay in the property as long as they required it, then it would pass to his four nephews.

[55] Ms Te Hae also deposed that on a number of occasions Robert told her he intended that his nephews would one day inherit his Woodside Common property.
[56] The only contrary evidence was provided by Holly and her mother. Each referred to recalling at one point Robert saying that the sons of Peter would not receive anything from his estate. No other details of the circumstances of this utterance, including when the comment was made, was provided.

[57] There had been a significant rift between Robert and Murray, Holly’s father. Sadly, this endured until Murray’s death. It appears that the uncle/niece relationship between Robert and Holly had continued notwithstanding that estrangement, but, as with Robert’s relationship with his other niece, Greta, it was not nearly as active, nor as close, as with the nephews. It is possible, given indications in the evidence that Robert and his other brothers, Peter and Alastair, would have their temporary disagreements, that Robert could have made the type of comment attributed to him by Holly and her mother. However, the vast preponderance of evidence, particularly as it relates to the more recent period before Robert’s death, was that he intended to leave the Woodside Common property to his nephews in equal shares.

[58] Importantly, the document, which was made only shortly before Robert’s death, clearly states “HOUSE 4 BOYS”. Whereas some of the items listed under the heading “WILL” are unintelligible in the absence of further explanatory evidence, this item does not suffer from that difficulty. I am satisfied that it was Robert’s intention to leave the property to the four nephews in equal shares once Mr Butterfield no longer had any need to live at the property.

The final insurance settlement payment

[59] It is convenient at this point to deal with an issue which I identified to counsel during the hearing. It relates to the status of the final insurance settlement payment which was made after Robert’s death. The seventh and final item listed on the document is the notation “SPLIT 6 WAYS”. The question arises as to whether the final insurance payment attaches to the asset in respect of which it was paid, namely the Woodside Common property, or is to be viewed as a separate part of Robert’s estate in the form of a cash fund.

[60] Mr Maciaszek on behalf of the applicants submitted that the balance of the insurance payment attaches to the Woodside Common property. He points to the
evidence of Peter Caird that it was Robert’s intention, after the payment of his debts and other sums, that the cash settlement was also to pass to the four nephews because Robert envisaged they would use their skill and energy to repair the Woodside Common property. He acknowledged that this settlement sum would be significantly depleted by other payments. Peter also deposed that Robert had no intention of spending this money on the repair of the Woodside Common property, but that, had it been received in his lifetime, he would have used it to fund his travel and for other lifestyle purposes after clearing his debts.

[61] Mr Butterfield’s evidence was that Robert had consistently stated to him over the previous few years prior to his death that he wished to make a payment of $50,000 to each of his nieces from the insurance settlement. The Woodside Common property in its damaged and unrepaired state would pass to his four nephews in equal shares and that would include the balance of the cash settlement. This would enable them to undertake the necessary repair of the property. However, Mr Butterfield acknowledged that only a much diminished settlement fund would likely be available to them, having regard to how Robert intended to use that fund to support his lifestyle. This was confirmed by Alastair, who deposed that Robert did not plan to apply the cash settlement towards insurance repairs, but intended to enjoy those funds and to continue to live in the damaged Woodside Common property indefinitely.

[62] Having regard to how Robert intended to utilise the balance of the final insurance payment, a concern arises as to whether it can safely be concluded that the fourth item “HOUSE 4 BOYS” includes the balance of the insurance payment or, at least, the residue of that sum which may have been left by the time of Robert’s death, which he had not otherwise spent for his own purposes. However, for the following reasons, I consider that must have been Robert’s intention.

[63] Robert clearly intended to favour his nephews in the disposition of his estate, yet he made provision for a bequest of $50,000 to each of his nieces. It appears the Woodside Common property, if divorced from the insurance claim, would be valued at little more than its land value of $260,000. If divided between the nephews, this would result in a disposition of similar value to that intended to be made to Robert’s nieces. On the evidence, I do not consider that was Robert’s intention. It is more
likely that he considered a four-way split of the Woodside Common property would be worth a great deal more than a $50,000 bequest. However, that could only be achieved by allowing the nephews the opportunity to repair the property by having available to them at least some of the money paid in settlement of the insurance claim.

[64] The document can only be interpreted as the expression of Robert’s testamentary intentions at the time of his death. The short period, less than two months, between the making of the document and his death, provides sufficient assurance that his intentions did not change during that limited interval. There is no evidence to suggest otherwise. It may well have been that had Robert lived for a number of further years and, indeed, well into old age, that his testamentary intentions would have changed. It is likely, in light of his intended lifestyle and diminishing cash funds, that he would have had to reassess the dispositions to his nephews and nieces, depending on his financial position. There may have been no money left by the time of his death to make $50,000 bequests, nor funds to assist to remediate the Woodside Common property to bring it into a saleable state.

[65] That is a matter of speculation, but it illustrates the need to interpret the document sought to be validated in accordance with the known testamentary intentions of Robert at the time of his death. When that is done, it appears tolerably clear that Robert intended the insurance monies to form part of the value of the Woodside Common property notwithstanding his intention to draw upon that money himself, and thereby reduce the funds available to restore the property to its potential full value.

“ 5 GIRLS 50,000 each”

[66] I have already referred to the evidence of Robert having, on more than one occasion, stated his intention to provide a gift of $50,000 to his nieces. That evidence is not contested.

“ 6 SHARON”

[67] Similarly, there is no realistic dispute that the reference to “SHARON” signifies Robert’s intention to gift a particular painting called “Black Friday”, to Ms Te Hae. Robert had a number of paintings at his Woodside Common property, and
because of the connection between the picture and Ms Te Hae, who was born on a Black Friday, Robert had expressed his wish to gift her that particular painting. This had been in response to her telling him that she did not want to receive any money from him when he raised his wish to make a monetary bequest. The notation “SHARON” in the document represents Robert’s confirmation to Mr Butterfield at the time he made the note of his intention to gift the painting to Ms Te Hae in the event of his death.

7

“ SPLIT 6 WAYS”


[68] This last item in the list under the heading “WILL” records Robert’s stated wish that any remaining assets were to be divided between his six nieces and nephews equally. There was evidence that Robert had, on a number of occasions, stated that if he died his furniture and chattels, including many artworks, were to be passed to Mr Butterfield. However, the document sought to be validated as a will makes no mention of the disposal of this property to Mr Butterfield, and, in the absence of any reference in the document to such a disposition, that part of the estate’s property can only be interpreted as falling under the seventh item.

Righteousness of the transaction

[69] Some care is required before validating a document as a will where a significant beneficiary under the document being sought to be validated was instrumental in its preparation. In Harris v Taylor, a will existed which divided the estate equally between the deceased’s son and daughter.¹⁶ However, the daughter sought to have a document validated which had been created the day before the death of her father. The daughter had taken instructions from her father which were then typed by her husband and signed by the father. Davidson J validated the document as expressing the testamentary intentions of the deceased, but noted that where someone who was instrumental in framing or propounding a will stands to profit by it, and a suspicion of undue influence arises, the Court must be assured of “the righteousness of the transaction”.¹⁷

¹⁶ Harris v Taylor [2015] NZHC 3190, [2016] NZAR 363.

¹⁷ At [129].

[70] I do not consider that concern arises in the present case. While Mr Butterfield is the person under whose hand the document was made, and from which he benefits, there has been no suggestion of undue influence or that the circumstances of its making are other than he deposed to in his affidavit. There is a large body of evidence from a range of deponents which is consistent with Mr Butterfield’s evidence of the testamentary wishes that were expressed by Robert on the evening he recorded the note. Any concern in that regard can be put to one side.

Holly’s opposition

[71] The affidavits filed by Holly and her mother in opposition do not directly contest the evidence relating to the testamentary intentions of Robert, other than the comment relating to Robert’s nephews which I have previously discussed. Their evidence provides information about their relationships with Robert and the background to his estrangement from Murray. Evidence is provided of events that occurred after Robert’s death, but these do not bear on the question of Robert’s testamentary intentions before his death and whether the document sought to be validated accurately reflects those intentions. It cannot be overlooked that neither Holly nor her mother had close contact with Robert in the years immediately preceding his death, after his falling out with Murray.

[72] Submissions made in opposition by Mr Clay centred on the deficiencies of the note. It was emphasised that the document was not dated, nor signed, and had not been written by Robert. However, none of those features prevent the Court from exercising its jurisdiction.¹⁸ It is not disputed that the document was made in June, some two months prior to Robert’s death. The circumstances in which it was made have been explained.

[73] I accept Mr Clay’s submission that jottings of figures at the top of the note are not things one would expect to find in a will, but Mr Butterfield explained that they related to the preliminary discussion regarding Robert’s financial affairs which led to Robert acknowledging that he needed to have a will and the two men agreeing that Mr Butterfield would write down what Robert wanted. The significance of the note,

¹⁸ See Re Estate of Feron, above n 3.

despite its informality, is apparent from Robert’s direction to Mr Butterfield that it be put in the top drawer where other important documents were kept. There it remained without amendment. The note was clearly kept there for safekeeping.

[74] Both in the affidavits in opposition and Mr Clay’s submissions, reference was made to Robert’s legal qualifications. He had held a law degree for some 40 years and had been a law lecturer at Canterbury, Waikato and Lincoln Universities. In my view, little can be read into that aspect. It does not appear that Robert was ever a practising solicitor, nor that he had any particular interest in the relevant areas of trusts or estates. As has already been discussed, Robert, particularly in his later years, did not seem particularly focussed on prioritising the organisation of his affairs. The need for Mr Butterfield to sit him down to discuss the content of a will, and the unsuccessful prior efforts to address that subject and seek out a solicitor, bears that out.

Conclusion

[75] I am satisfied that the note is a document which has the appearance of a will and expresses Robert’s testamentary intentions. As with the validation of solicitors’ file notes recording instructions for the preparation of a will, the validation of the note in this case must be viewed as an exceptional situation. Notwithstanding the obvious deficiencies of the document and the absence of the ordinary formalities associated with the making of a will, the strength of the evidence is such that I am permitted to give effect to the statutory purpose of s 14 by validating what would otherwise be an inadequate record.¹⁹

[76] I am required to be satisfied that the document records Robert’s testamentary intentions. I consider those intentions have been established and that the items listed in the note sufficiently reflect them such that the note is able to be validated as a will. This is preferable to intestacy, which would not reflect those testamentary intentions.

[77] Both of the applicants, Peter and Alastair Caird, who would each stand to receive a third of Robert’s estate, acknowledge that was never their brother’s intention, nor was it Robert’s intention for a third of his estate to pass to Murray’s side of the

¹⁹ Re Taigel [2014] NZHC 844; Re Estate of Feron, above n 3.

family. It should be noted that the estrangement of Robert and Murray has no relevance to the issues I am required to decide. It is simply a case of assessing whether the items listed in the document sufficiently reflect Robert’s testamentary intentions. Because of the inadequacies of the document, that evidence was required to be strong in order to provide me with the necessary assurance that the document represents Robert’s intentions. I consider the evidence was of that quality.

[78] As observed by Courtenay J in Balchin v Hall, where a Court is satisfied that the document in issue represents the deceased person’s genuine intentions, it can ordinarily be expected that a validating order will be made.²⁰ While the Court retains a discretion under s 14 of the Act once the statutory criteria has been fulfilled, it is only residual in nature. If the Court has concluded that the document reflects the deceased’s testamentary intentions there would have to be exceptional reasons to not give effect to the deceased’s wishes. No such reasons were identified.

Order

[79] There will be an order under s 14 of the Act declaring the document annexed and marked “GB1” to the affidavit of Graeme Ross Butterfield, sworn on 15 November 2017, to be the valid last will of Robert Leslie Caird. That order will also include the validation of the document annexed to the applicants’ submissions, entitled “Provisional Will Based on Document GB1”, which I am satisfied accurately extrapolates from the note and the supporting evidence in a clearer manner Robert’s testamentary intentions.

Costs

[80] While the successful application was opposed, I consider it appropriate that the applicant’s costs be borne by the estate. Having regard to the nature of the document sought to be validated and the inevitable need for the application to be accompanied by substantial evidence in support, I do not consider Holly’s opposition can be held to have materially added to the costs of the application.

²⁰ Balchin v Hall [2016] NZHC 837 at [11].

Solicitors:

Dale Lester Barrister, Christchurch Maciaszek Brown Law, Christchurch Lane Neave, Christchurch

PROVISIONAL WILL BASED Oh DOCUMENT “GB1”

This is the WILL of ROBERT LESLIE CAIRD of Christchurch, Law Lecturer

1. ^{I appoint as the Executor of my will.}

2 ^{I direct my Executor to sell my Mitsubishi motor vehicle and devise to} my friend GRAEME ROSS BUTTERFIELD a utility motor vehicle acquired by my Executor in its place.

I give my Black Friday painting to my friend SHARON TE HAE.

4. I direct my Executor to pay the following from the earthquake claim insurance settlement derived with IAG NZ Limited:

4. J The amount required to repay the mortgage principal and interest owing to Westpac NZ Limited and secured against the identifier to the property at 49 Woodside Common, Westmorland, Christchurch.

4.2 My funeral costs

4.3 The sum of $200,000.00 by way of bequest to my friend GRAEME ROSS BUTTERFIELD.

4.4 To each of my nieces HOLLY ALICE CAIRD and GRETA ELIZABETH VIOLET CAIRD the sum of $50,000.00.

I direct my Executor to transfer the residential property at 49 Woodside Common, Westmorland, Christchurch, which shall include the balance of the IAG NZ Limited earthquake claim cash settlement not previously paid, to my four nephews JAMES ALEXANDER DAVID CAIRD, SIMON ANDREW CAIRD, MICHAEL LAWTON

CAIRD and JASPER SPENCER CAIRD and if more than one as tenants in common in equal shares absolutely.

6. I give my residuary estate to my nephews JAMES ALEXANDER DAVID CAIRD, SIMON ANDREW CAIRD, MICHAEL LAWTON CAIRD and JASPER SPENCER CAIRD and my nieces HOLLY ALICE CAIRD and GRETA ELIZABETH VIOLET CAIRD as tenants in common in equal shares absolutely.