Hikairo [2020] NZHC 1339 (17 June 2020)

Last Updated: 6 July 2020

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

CIV-2016-404-2205 [2020] NZHC 1339

IN THE ESTATE OF	DAVID TEWI POUMAKO of Tauranga, Deceased
BETWEEN	PHILLIP HIKAIRO Applicant

Hearing:	On the papers
Counsel:	G Elvin for Applicant
Judgment:	17 June 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 17 June 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors: MacKenzie Elvin, Tauranga

RE HIKAIRO [2020] NZHC 1339 [17 June 2020]

• [1] I have before me an application for orders declaring a document to be a valid will. The document is recorded in Schedule A, attached to this judgment.

• [2] The document is defective in terms of the Wills Act 2007 (the Act) insofar as it has not been executed in the manner prescribed by s 11(4) – it was not witnessed by two people. It was, however, witnessed by one person, Jean McLean, a registered nurse.

• [3] The applicant, Phillip Hikairo, is identified in the document as the deceased’s nephew and appoints Mr Hikairo to manage all of the deceased’s affairs after his passing.

• [4] Affidavits were filed in support of the application, including affidavits by Mr Hikairo, Shane Thomas Barnes, Marie Lucille Alice Barnes and Jean Margaret McLean. The latter three confirm that they were present at the signing of the purported will.

• [5] Mr Hikairo’s first affidavit appears to have adopted a standard template which, unhelpfully, referred to matters that do not apply to the present case. Directions were made to have it corrected. A further supplementary affidavit was then filed. Mr Hikairo provides some background about the deceased and the circumstances of the making of the will. He notes that at the time of his death, the deceased was in the Arohanui Hospice, Palmerston North. Mr Hikairo visited the deceased and remained with him until he died. In discussions he had with the deceased, the deceased explained his wishes to him and that he wished him to act in fulfilment of those wishes. He refers to a document which, he says, accurately recorded the wishes he expressed to him on 30 April 2015. He says he was also present on 1 May 2015, when the deceased signed the document intended to be his will.

• [6] He states that as part of his expectation of appointment, he made full enquiries and searches for any earlier will or wills made by the deceased. He is satisfied that no other will exists.
• [7] He notes that it was clear to him the deceased intended the document be his will, that it was specifically recorded as being his last will and testament, and that he is the Phillip Hikairo referred to in the document as the nephew of the deceased. He confirms that he made the application because the document appoints him to manage the affairs of the deceased.

• [8] Having reviewed the evidence, I remained concerned about two issues, namely:

(a) whether the deceased had any children other than John (who is referred to in the will); and

(b) whether the deceased was survived by any spouse (as distinct from a de facto partner).

• [9] I invited Mr Hikairo to swear an affidavit on these matters.

• [10] After much delay, an affidavit was filed explaining that:

3. With respect to the first matter, the deceased left two sons who survived him. John who has provided his consent to the application and another son Thomas. Thomas has lived in Australia for many years and has not been in contact with his family. I have not seen him for some years. I have on two recent occasions visited Australia to visit family, firstly in late 2016 and latterly in June 2018. During those visits I made enquiries of the wider Whanau as to the whereabouts of Thomas and attempted to seek him out at his last known location. I could not locate him. Since then I have made enquiries from time to time amongst our wider Whanau and no one is aware of his current status or location. I believe all relevant steps have been taken to locate Thomas.

4. In relation to the second matter I confirm the deceased was not survived by any spouse or de facto partner.

5. By way of further detail for the Court the assets remaining in the estate are not significant. All Maori Land held by the deceased has been transferred prior to his death. The cash in the bank had a balance of approximately $20,000.00. This balance will not be sufficient to repay the liabilities of the estate. The estate outstanding liabilities have been:

(a) Memorial Stone $4,413.00

(b) Marae costs for unveiling $2,040.00

(c) AA Insurance $4,680.00

(d) Tauranga City Council rates $8,696.91 The above liabilities do not include legal fees.

6. I have paid most of these liabilities from my personal funds. I do not expect to recover all the costs I have paid.

7. I have diligently attempted to attend to the deceased’s affairs as a matter of dignity and respect.

Assessment

• [11] Applying s 14 of the Act, the document purported to be a will (the subject of this application), in fact, appears to be a will, does not comply with s 11, and came into existence in New Zealand. I am therefore satisfied that I should make an order declaring the document to be valid. It clearly expresses the deceased’s testamentary intentions. I also note in this regard that one of the deceased’s surviving sons consents to the declaration, and that the other son cannot be located.

• [12] Accordingly, I make an order declaring the document, subject to this application, a valid will of the deceased.

• [13] There is one final issue, namely, whether it was sufficient for the purposes of executorship that the will simply referred to the appointment of Mr Hikairo to manage the affairs of the deceased. I am satisfied that it was sufficient, adopting the approach taken by Toogood J in Gibson v Akuhata-Brown.¹ As the Judge noted in that minute, the reference in the will to the identified person acting as a personal representative and trustee was sufficient for the purposes of the Act to signify that the person referred to was an executor or trustee. Toogood J referred to the decision of Tompkins J to the effect that, where there is no trust, it is sufficient to refer simply to a personal trustee and to assume the personal trustee was the executor.²

• [14] To my mind, the specific appointment of Mr Hikairo to manage the affairs after his passing is tantamount to making him a personal representative and I think, in the

¹ Gibson v Akuhata-Brown CIV-2011-416-200, 23 November 2011 (Minute) at [9]-[10].

² See Re Young [1969] NZLR 454 per Tompkins J at 460.

circumstances of this case, it satisfies the requirements of the Act in terms of identifying an executor.

SCHEDULE A

THIS IS MY LAST WILL AND TESTAMENT.

I David Tewi Poumako of 31 Carmichaels Road Tauranga being of sound mine and understanding.

I revoke all earlier wills made by me.

I leave my property (House, Garage and sheds) and all personal belongings (house chattels, furniture, photo,s) to my nephew Phillip Hikairo of Wairoa Pa Road Tauranga.

I appoint my nephew Phillip Hikairo to manage all of my affairs after my passing (death).

My wish is that in time my son John Poumako will return home and I ask that my nephew Phillip Hikairo allow suitable arrangements for my son John to take possession of the House, Garage, Sheds and all its belongings.

I believe I have adequately provided for my children with all of my land shares.

Te Tau Te Rangimarie.