Estate of Steiner [2018] NZHC 2228 (28 August 2018)

Last Updated: 8 October 2018

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2018-443-25 [2018] NZHC 2228

IN THE MATTER	Of the Wills Act 2007
AND IN THE MATTER	of an Application pursuant to s 14 of the Wills Act 2007 to declare an informal will of KATHLEEN FRANCES REGINA STEINER valid
	MARGARET MARY STEINER-JOYCE Applicant

On the papers
Counsel:	S W Hughes QC for Applicant
Judgment:	28 August 2018

JUDGMENT OF THOMAS J

[1] Ms Margaret Steiner-Joyce (Margaret) applies to the Court for an order under s 14 of the Wills Act 2007 declaring a document to be the valid will of her sister, Ms Kathleen Frances Regina Steiner.

Factual background

[2] Ms Steiner lived by herself in the farm house where she, her three sisters and her brother grew up. She lived a frugal lifestyle and amassed considerable wealth in doing so. The end of her life was spent in hospice care, where she was visited regularly by her sisters Margaret and Rosina Steiner (Rosie), and once by her eldest sister Marie Cole (Marie). Margaret had encouraged Ms Steiner to make a will and had supplied her with paper from the law firm at which Margaret worked as a legal executive.

RE ESTATE STEINER [2018] NZHC 2228 [28 August 2018]

[3] Ms Steiner never married and had no children. Her father died in 1974; her mother in 2004. Her elder brother died without issue in 2006. When Ms Steiner died on 31 January 2018, her closest relatives were her three sisters and their children. By that date, Ms Steiner’s estate was worth approximately $2.8 million, comprised of:

(a) property at Tikorangi worth about $275,000;

(b) property at Waitara worth about $295,000;

(c) a car estimated to be worth about $1,000;

(d) chattels; and

(e) bank accounts and cash investments totalling about $2.2 million.

[4] Before her death, Ms Steiner wrote various documents wherein she expressed her wishes concerning her estate as follows:

(a) A four-page document written on a law firm’s note paper, entitled “Will of Kathleen F Steiner” and, on each page, signed and dated 2 November 2017. On the first page of this document, Ms Steiner lists her two properties and her car, but does not dispose of them. On second page, which includes the words “This is my last and correct Will” along with her name, signature and the date, she states “the bulk of my money to Margaret to sort out who gets [what] if I have not stated the amounts”. On this and the remaining pages, Ms Steiner records several dispositions of specified amounts to specified people, several dispositions of non-specified amounts to specified people (including Margaret and Rosie), and expressly records that no money is to be given to charities, Marie Anna Steiner Cole or Annabel Diana Steiner Cole.

(b) A signed note entitled “Will of Kathleen Frances Steiner”, signed and dated 2 November 2017 and written on the back of a post-card. In this document, Ms Steiner disposes of her car to Rosie, the Tikorangi
property to Gracie, Holly and Margaret Joyce, and the Waitara property to Rosanna and Reece Tanner with the statement, “not to be sold ever”.¹

(c) A six-page document written on a law firm’s note paper entitled “messages” and “Will of Kathleen Frances Steiner” and, on all but one page, signed and dated 2 November 2017. In this document, Ms Steiner records gifts of unspecified amounts of cash to various specified people, makes gifts of trophies to a primary school and rugby and racing clubs, outlines her wishes for a new house to be built, requests that her things not be destroyed, and requests that specified chattels be buried with her. She notes, “No Money or things are to be given to anybody other than those I have written in these pages of my Will”.

(d) Notes in her diary entitled “Money from Kathleen Frances Steiner to the following”. It is not signed or dated. This document does not specify amounts but lists the names of various people and families, in respect of some with reasons as to why they might be gifted money. Many names on this list also feature in the four-page document referred to above.

[5] Margaret provided two affidavits in support of her application. She says she was not surprised that Ms Steiner nominated her as the person to “sort out who got what of her money”. She explains that Ms Steiner put considerable value on the fact Margaret is a registered legal executive and trusted her to carry out her wishes.

[6] Margaret exhibited a summary of a conversation she recorded between her and Ms Steiner on 16 October 2017, two weeks before the date Ms Steiner wrote what she labelled her will, in which Margaret asked Ms Steiner about making a will. A copy of the recording was later supplied to the Court. In the recording, Ms Steiner made various statements about gifts she wished to make. She noted she had about
$2.2 million in cash. She said “yous will get quite a bit of that” but that she would

1. Ms Hughes QC considers the “not to be sold” condition applies to the car but that is not how I read the condition, which has an arrow pointing to the address of the Waitara property. In addition, Ms Hughes’ reading does not correspond with Margaret’s conversation with Ms Steiner which refers to Rosanna getting the house at Waitara only if she does not sell it.

“like to be always on the highway” and wanted to “give Peter Sole enough money to buy a truck” on which her name would be written. She suggested he should get a price for a truck, which could then be bought, and which would then be on the highway. In response to Margaret’s question, “So you just want Rosie and me, you don’t want Marie”, Ms Steiner said “no, no”. Other people would only get “little bits, hardly anything”. In relation to Fiona Parker, she said she “would probably give like
$10,000”. In relation to other names Ms Steiner had written in her notebook but in respect of whom she had not stipulated amounts, she said, “It won’t be much money, just enough, $5,000 or something like that”. She said the “major money” would go to Margaret and Rosie but Margaret would “probably get more”. She wanted Margaret and Rosie to sort out what they wanted to give their children because she would like them to “have something at a certain age”. The recording finished soon after she stated she would give Rosanna the Waitara property if Rosanna did not sell it.

[7] Margaret deposes that Ms Steiner subsequently told Margaret and Rosie of her will and where it was. She says neither she nor Rosie touched the documents until they found them in Ms Steiner’s belongings after Ms Steiner died.

[8] Margaret interprets the documents referred to at [4] above as meaning Ms Steiner had trusted her to sort out what was to happen with the balance of her estate. That, together with the conversation on 16 October, is interpreted by Margaret to mean she is obliged to divide the residue of the estate between herself and Rosie.

[9] Margaret proposes that, if she is made executor and trustee of the will, she will distribute Ms Steiner’s estate in accordance with the bequests within the documents which can be considered validly made, distribute cash gifts of small amounts for the non-specified bequests and divide the residue between herself and Rosie. She provides suggestions as to the appropriate amounts, ranging from $500 to
$5,000, for the cash gifts where no amount has been specified by Ms Steiner. While she will not make a disposition to Marie or Annabel under the will in order to honour Ms Steiner’s wishes, she notes she and Rosie will continue to provide Marie with support when she needs it.
[10] Margaret explains why Ms Steiner did not want to make provision for their sister Marie and Marie’s daughter, Annabel. Margaret deposes that Marie is unlike her siblings in that she is not frugal. Marie lives in modest and difficult circumstances, and requests money from Margaret and Rosie when she is unable to pay her bills. The sisters each inherited a significant amount when their brother died and Marie has spent her share. Margaret says Ms Steiner considered that a travesty. Moreover, Margaret deposes that Marie had very little to do with Ms Steiner for many years, despite living nearby. Margaret believes Marie briefly visited Ms Steiner once only while she was ill.

[11] Marie has been served with the application and documents filed in support. Margaret addresses Marie’s response in her affidavit. She reports that Marie is understandably distressed. However, Marie has not taken any steps to challenge the application.

Submissions

[12] Ms Hughes QC, for the applicant, submits Ms Steiner intended Margaret and Rosie to be the main beneficiaries of her estate and the Court ought to declare the documents a valid will. Ms Hughes acknowledges deficiencies in the documents which do not meet the requirements of a valid will under s 11 of the Wills Act. However, she submits that the documents create an informal will of sufficient clarity to be declared valid under s 14. That course of action would make valid the bequests of the two properties, various chattels and cash gifts totalling around $370,000. The issue would then become what to do with the residue, which forms the majority of the estate.

[13] Ms Hughes submits the appropriate course would be to find that the documents create a testamentary trust. Ms Steiner intended Margaret to act as executor and trustee, to distribute bequests to certain people where amounts were not specified and distribute the residue between Margaret and Rosie.

[14] The alternative course is to determine that, because Ms Steiner has made no specific statement in writing as to her wishes for the residue of her estate, that part of
her estate ought to be distributed as if she were intestate. That would mean the residue would be split equally between her surviving siblings, Margaret, Rosie and Marie.

Analysis

[15] The Court is able to declare a document a valid will pursuant to s 14 of the Wills Act:

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.

[16] In my assessment, three of the four documents² together appear to be a will³ which does not comply with s 11.⁴ I am not persuaded that the list in Ms Steiner’s diary can be said to be part of her will. Unlike the other documents, it is not signed or dated, and its contents appear to be a draft list of names, most of which then feature in the signed documents. Those factors indicate Ms Steiner placed some importance on what she labelled her will, and indeed the signed and dated documents are written with some care when compared to the list in her diary.

² These documents comply with the Wills Act 2007, s 6 definition of “document”.

³ In that they are labelled as such and, as per s 8(1)(b), they dispose of Katie’s property.

⁴ The will is in writing, is dated and signed but it is not witnessed.

[17] I am satisfied the three signed and dated documents express Ms Steiner’s testamentary intentions insofar as they record specific bequests to some people, transfer the bulk of Ms Steiner’s estate to Margaret to administer other bequests of amounts at Margaret’s discretion, and note the specific requirement that Marie and Annabel receive no money from the estate. It is apparent that Ms Steiner wished Margaret to be the executor of her will. I place quite some weight on the fact the three documents are all titled as her will, are signed and all bear the same date. In my assessment, read together, they appear to express her testamentary intentions.

[18] Support for this interpretation comes from Ms Steiner’s conversation with Margaret.⁵ Some of the specific bequests made in the documents were previously referred to by Ms Steiner in the conversation and several were explained by her in that conversation, indicating the level of thought and care she put into recording her wishes.

[19] The difficulty comes with Ms Steiner’s intention as to the residue. Ms Steiner includes both Margaret and Rosie in the list of those to whom bequests will be made at Margaret’s discretion but makes no specific statement in the documents as to the residue of her estate. Nor is there an indication in the documents that Margaret (for herself personally) and Rosie are to receive a greater amount than other beneficiaries.

[20] While Ms Steiner made no express provision for the distribution of the residue, she expressly excluded Marie or anyone not named in the will from receiving any money from her estate. The combination of the express provisions and the lack of any provision expressly dealing with residue results in an uncertainty and ambiguity within the will as to Ms Steiner’s intention regarding the residue. On its face, the lack of direction as to residue would indicate a partial intestacy. However, if a partial intestacy is declared in relation to residue, Ms Steiner’s express wishes that Marie not receive any money will be undermined.

5. Wills Act 2007, s 14, which allows the Court to use evidence of a deceased person’s statements and evidence of their testamentary intentions in considering whether the purported will expresses the deceased’s testamentary intentions.

[21] Further uncertainty arises in relation to the exact nature of Margaret’s obligations in relation to the bulk of the estate bestowed on her to decide who received what money if amounts were not stated. It could be argued that Ms Steiner intended to confer a mere power as opposed to a trust power to deal with that money. A person with a mere power is granted the power to make decisions but is not required to do so. A mere power is not amenable to control by the Court. A person with a trust power has mandatory duties in exercising the power, which may be subject to the Court’s control.

[22] The evidence of Margaret’s conversation with Ms Steiner aids the Court in interpreting what Ms Steiner intended in terms of these uncertainties.⁶ First, it is clear from the conversation that Ms Steiner conversed with Margaret in detail about the bequests she intended to make, ensuring that Margaret was apprised of her wishes and guided as to the size of the bequests. Ms Steiner entrusted the division of the bulk of her estate to Margaret in her will and wrote detailed lists of those she wished to benefit from it. In those circumstances, it is sufficiently certain that Ms Steiner intended to bestow on Margaret a trust power when dividing the estate. I take the phrase “bulk of my estate” to include the residue, given Ms Steiner expressly stated no one other than those named in her will were to receive any benefit from her estate.

[23] Secondly, it is also clear from the conversation that Ms Steiner intended Margaret and Rosie to receive substantial portions of her estate. Both Margaret and Rosie are listed on the four-page document but no specific amounts are recorded beside their names. However, in Margaret’s conversation with Ms Steiner, Ms Steiner referred to the size of her estate and said, “yous will get quite a bit of that” and the “major money” would go to Margaret and Rosie. Those statements provide evidence that, after the specific bequests, the remainder was to be divided between Margaret and Rosie. Although at one point in the conversation Ms Steiner indicated Margaret would “probably get more than Rosie”, I consider this too uncertain to place any weight on that statement.

6. Section 32, which allows the use of external evidence when, inter alia, the words used in a will make the will or part of it uncertain or ambiguous.

[24] Given Ms Steiner’s treatment of her three sisters, that is bequeathing to two and not to the third, it is clear Ms Steiner intended to exclude Marie. She confirmed that in the conversation and, indeed, expressly stated in her will that Marie was not to obtain any money from her estate.

[25] I am therefore satisfied Ms Steiner intended to create a testamentary trust and she did so with sufficient certainty to enable her trustee, Margaret, to discharge those duties in accordance with Ms Steiner’s instructions. This included the indication that Margaret and Rosie should benefit the most. I interpret this as indicating Ms Steiner intended Margaret and Rosie to share the residue equally.

[26] Further provisions which require comment are:

(a) Ms Hughes submitted there was some difficulty with the gift of money to Peter Sole to buy a new truck, given the possible range in prices. However, the range is not so great that the gift fails for uncertainty. A new truck, similar to that currently used by Peter Sole for his business and suitable for it, was clearly intended. The conditions are unenforceable but the gift itself is valid.

(b) The gift to Mr Gunning is sufficiently certain but the condition that he share it with another person by taking a trip is unenforceable.

(c) The gift of cash to Ian and Robyn Marshall is enforceable to $50,000 only.

(d) The gift to the Munn family is to be made to the parents of that family.

(e) The gift of the Waitara property is sufficiently certain but the condition that it never be sold is unenforceable.

(f) The provision wherein Ms Steiner states “I still want my new house to be built” is too uncertain to be enforceable. There is no evidence to suggest a house has been planned to a level of detail sufficient to be certain it would satisfy Ms Steiner’s wishes.
(g) Ms Steiner left no written indication in her will as to how Margaret should exercise her discretion regarding beneficiaries in respect of whom she did not specify amounts. I consider the evidence contained in the recorded conversation is relevant. The amounts nominated by Margaret in her second affidavit do not reflect the figures stated by Ms Steiner in that conversation. I consider it sufficiently clear that Ms Steiner intended Fiona Parker to receive something in the order of
$10,000 and other beneficiaries without stipulated amounts to receive something in the order of $5,000. Although Ms Steiner left the exact amounts to Margaret’s discretion, that discretion ought to be guided by the statements Ms Steiner made to Margaret, which Ms Steiner no doubt had in mind when she wrote her will.

Result

[27] For the reasons given, I declare the three documents listed in [4](a)–(c) above to be Ms Steiner’s valid will and order:

(a) Margaret to be executor and trustee;

(b) specific bequests to be dealt with as per Ms Steiner’s instructions contained in the will, but modified as required by [26] above;

(c) Margaret to make arrangements with the school, rugby and racing clubs for trophies as requested by Ms Steiner; and

(d) the residue be divided equally between Margaret and Rosie.

Thomas J

Solicitors:

Govett Quilliam, New Plymouth for Applicant