Estate of Harvey [2024] NZHC 1084 (3 May 2024)

Last Updated: 27 May 2024

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

CIV-2023-404-1454 [2024] NZHC 1084

UNDER	of the Wills Act 2007
IN THE MATTER	of the Estate of GAYLENE MARGARET HARVEY
IN THE MATTER	of an application by DAREL-ANNE CARPENTER for an order that an invalid Will be validated under the Wills Act 2007

Hearing:	18 March 2024
Appearances:	A Gilchrist for Applicant J Howell for Respondent
Judgment:	3 May 2024
Reissued:	24 May 2024

JUDGMENT OF BECROFT J

[As to whether transcript of an audio-visual recording should be validated as a will]

This judgment was delivered by me on 3 May 2024 at 4pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

..........................................

Solicitors/Counsel:

David Rice & Associates, Auckland Lance Lawson Ltd, Rotorua

A Gilchrist, Auckland

ESTATE OF GAYLENE HARVEY [2024] NZHC 1084 [3 May 2024]

The application

• [1] Gaylene Margaret Harvey died on 26 January 2023 aged 57, without a valid will. She had no children but is survived by eight siblings and her mother.

• [2] One of her siblings, Darel-Anne Carpenter, applies for an order that the transcript of a video recording apparently expressing Gaylene’s testamentary wishes be declared her valid will under s 14 of the Wills Act 2007.¹

• [3] The video was recorded on 25 September 2022 and the resulting transcript could not be briefer:

Gaylene: Regarding my Will. In case I pass away in the short term, my wishes haven’t changed since December January ’21. I want my assets distributed amongst the family and I don’t wish for anything to be left to Maitland. The money owing to me from mum’s property at Waihi is to be paid to my estate. I entrust in my sister Darel, Power of Attorney, to carry out my wishes.

• [4] The application is supported by Gaylene’s mother and her eight siblings. However, it is opposed by the man referred to as “Maitland” in the transcript. I understand that Maitland Candy was Gaylene’s de facto partner.

• [5] Maitland alleges that at the time of Gaylene’s death, he was still her partner although this is disputed by all of Gaylene’s siblings and their mother. That all remains to be fought out, likely in a relationship property application and/or a Family Protection Act 1955 application. Maitland has now lost capacity and on his behalf Ms Christie, acting as his litigation guardian, opposes this application.

Issues

• [6] Counsel agree that there are three essential issues for resolution although, as the argument developed, counsel for Maitland, Mr Howell, conceded the first issue:

1. Throughout this judgment, for the sake of clarity, I will refer to each of the parties by their first name. No disrespect is meant by my doing so.

(a) Is the transcript of the video a “document” in terms of s 14 of the Wills Act?

(b) Does the document appear to be a will and, in particular, is there certainty as to:

(i) the property the subject of the will;

(ii) the proportions in which the property is to be divided; and

(iii) who are the beneficiaries?

(c) Is the Court otherwise satisfied that the document expresses Gaylene’s testamentary intentions?

The factual background

• [7] The facts essential to this application are uncontested.

• [8] Sadly, Gaylene was an alcoholic, albeit with significant periods of recovery. She was much helped by the Salvation Army and, indeed, became a Salvation Army Officer. Tragically, sometime in 2017 Gaylene relapsed and begun abusing alcohol again, which resulted in the health complications that caused her death.

• [9] Gaylene had no children, but she has eight siblings (six full siblings, and two half siblings) all of which are living and one living parent (her mother, Shirley).

• [10] It is accepted that Maitland had been Gaylene’s de facto partner for a number of years although, as mentioned, there is a dispute about if and when that relationship came to an end. That issue is irrelevant to this application.

• [11] In 2020, Gaylene had prepared a will using a “do it yourself will kit”. The document was dated 29 September 2020 and it was signed by her and witnessed by Darel-Anne but without a second witness. No argument was directed at, or significance attached to, this unexecuted and incomplete will. It is not the subject of any application.
• [12] On 14 May 2022, Gaylene made a first video regarding her testamentary wishes (not the subject of this application). The transcript of that video occupies over a page. In it she talks about her “property”, which is accepted to be all her property, being given into what was described as a family trust, with Darel-Anne being her power of attorney. That video concluded with the words:

Gaylene: So that’s just the beginning of getting the ball rolling. Darel: That’s the beginning. OK?

Gaylene: Yup

• [13] That video included a question from Darel-Anne:

Darel: Do you want anything to go to Maitland? Gaylene: No.

• [14] In summary, the May 2022 transcript appears to record that when she dies:

(a) Gaylene would like her property at Whitianga to go into a family trust, with Darel-Anne being power of attorney;

(b) her mother’s house is to be assessed by the family when her mother passes away (remembering that there is apparently money owing to Gaylene in respect of her mother’s house);

(c) Gaylene’s assets are to go into a family trust;

(d) Darel-Anne, as power of attorney, was to look after the family trust;

(e) Darel-Anne was in charge of her money and “ could dish out

what’s in the bank and share it amongst family”;

(f) nothing was to be left to Maitland; and

(g) Darel-Anne understood she was being asked to “get the ball rolling”.

• [15] On 25 September 2022, Gaylene recorded another video, the transcript of which is set out at [3] above and is the subject of this application.
• [16] I viewed the second video in Court. For what it is worth, Gaylene seemed relaxed, clear, and happily participating. It seemed to me that she was reading from notes on her lap. Gaylene’s family have been unable to locate those notes. If they were available, then Mr Gilchrist clarified the notes would be the subject of this application, not the video transcript.

• [17] The temporary administrator of Gaylene’s estate, who was appointed by the Court, advises that Gaylene’s estate is not insignificant and essentially comprises:

(a) Her Whitianga property valued at $592,500.

(b) Money owed by her mother in respect of improvements to her mother’s property in Waihi. The property is valued at about $460,000.

(c) Cash and funds held on trust with Denham Bramwell Lawyers of approximately $721,000.

(d) A car valued at $16,000.

Section 14 of the Wills Act

• [18] Section 14 provides:

14 High Court may declare will valid

(1) This section applies to a document that—

(a) appears to be a will; and

(b) does not comply with section 11; and

(c) came into existence in or out of New Zealand.

(2) The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

(3) The court may consider—

(a) the document; and

(b) evidence on the signing and witnessing of the document; and

(c) evidence on the deceased person’s testamentary intentions; and

(d) evidence of statements made by the deceased person.

• [19] In this case s 14(1)(a) and (b) are very much in issue.

First issue: is the transcript of the video “a document”?

• [20] Self-evidently, the Court’s power to validate a will under s 14 only applies to “documents”. Section 6 of the Wills Act defines a document as “any material on which there is writing”.

• [21] The Wills Act does not define the terms “material” and “writing”. However, s 13 of the Legislation Act 2019 relevantly defines writing as “representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print) ...”.²

• [22] There was no argument that the video itself satisfied the definition of “writing”. Indeed, counsel accepted that the video was not a document.

• [23] It is accepted that the transcript of the video was prepared after Gaylene’s death. I proceed on that basis.

• [24] The closest relevant case referred to by counsel is Pfaender v Gregory.³ In Pfaender the Court held (unsurprisingly) that audio recordings of the deceased’s will instructions and amendments that he wanted to make to his draft will, were not documents for the purposes of the Wills Act. Toogood J, observed that it was likely that the drafters of the Wills Act wanted to confine the meaning of the document to written records, consistent with s 11 requiring wills to be in writing.⁴

• [25] However, Toogood J held that posthumously created documents of the deceased’s verbal instructions to his solicitor regarding his will (which were audio recorded), and of the exchanges he subsequently had with his solicitor about

2. See also Re O’Reilly [2018] NZHC 230, [2018] NZFLR 243 where this matter arose and was addressed by Downs J.

³ Pfaender v Gregory [2018] NZHC 161, [2018] NZAR 375.

⁴ At [32].

amendments to his draft will, could be included as documents to be validated under s 14. On that point, Toogood J held:⁵

While the recording of the exchange cannot qualify under the Wills Act as a document, an accurate transcript of the recording, supplemented by evidence verifying the will maker as the speaker or a participant in the exchange, meets the s 6 definition of document as “material on which there is writing”. Moreover, it provides evidence of the will maker’s intentions which is even more reliable and compelling than a contemporaneous note taken by an observer.

• [26] I accept Mr Gilchrist’s careful submission for Darel-Anne (and her siblings and mother) that the conclusion in Pfaender must be right and applicable here because it makes no logical sense that instructions given over the telephone by a deceased to a solicitor who takes them down can be validated, whereas the deceased’s own words in an audio-video recording cannot.

• [27] Mr Howell, for Maitland, suggested that there is a conflict between Pfaender and Re Estate of Feron.⁶ There the deceased gave instructions to her solicitor for a new will over the phone. The solicitor took notes but did not draft the will until after the deceased had died. The verbal instructions did not meet the document requirement of s 14. Nor was the Court prepared to accept the draft will as a “document” for the purposes of s 14 because it did not exist when the deceased died. The Court held:⁷

The linkage to s 11 strongly suggests that the purpose of s 14 is to cure a non- compliance with s 11, rather than a wholesale absence of a will. There must at least be a document purporting to be a will under the hand or direction of the deceased prior to death. The draft will post-dates the death and therefore does not satisfy this criterion.

• [28] I am not sure there is conflict between the two decisions. The facts of the two cases are different. In Re Estate of Feron, the “document” in question was a draft will prepared after the deceased’s death from the solicitor’s notes. Whereas in Pfaender the document was the transcript of the deceased giving actual testamentary instructions. But to the extent there exists any conflict, I prefer the later approach of Toogood J. In a modern age, where it is likely that more and more “would-be testators”

⁵ At [33].

⁶ Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551.

⁷ At [13].

will have their testamentary intentions conveyed in an audio-visual record using a cellphone or the like, a purposive approach should be taken.

• [29] During argument, Mr Howell drew my attention to parallel legislation in New South Wales, where the definition of “document” has an extended meaning and includes “anything from which sound, images or writing can be produced”. Perhaps the time has come for such an amendment in New Zealand.

• [30] In any case Mr Howell, in my view, sensibly and responsibly accepted that in this case the video transcript should be regarded as a “document”. I agree. And I proceed on that basis.

• [31] To complete this discussion, I note that counsel agreed that the video recording is authentic and genuine, that it was Gaylene who appeared in the video, that she had testamentary capacity and, in making the video, Gaylene was acting freely and voluntarily without coercion or undue influence. Again, that was a responsible (and entirely appropriate) concession by Maitland’s counsel.

Second issue: does the September 2022 video transcript “appear to be a will”?

• [32] This issue arises by virtue of the wording of s 14(1)(a) of the Wills Act. Mr Howell raised three particular reasons why the transcript did not “appear to be a will”. I address them in turn, in order of least to greatest difficulty. In respect of all these issues, Mr Gilchrist very helpfully provided a list of general “cannons of construction” to which I will more specifically refer.⁸

• [33] These “cannons” are ordinarily used in interpreting a document already held to be a will—rather than as an aid to deciding if a document should be declared a will. In my view it does not put the “cart before the horse” to use those cannons/principles as an aid to establish whether there is sufficient certainty about a person’s intentions in a document for it to be deemed a will.

8. Taken from Andrew Alston (ed) Alston and Garrow: Laws of Wills and Administration (5th ed, Butterworths, Wellington, 1984) at 381.

(a) No certainty as to the property the subject of the will

• [34] This point can be dispensed with quickly. Gaylene refers to “my assets”. In the absence of anything to suggest the contrary, the ordinary and straightforward meaning is that she is referring to all her assets.

• [35] One cannon of construction highlighted by Mr Gilchrist is that the Courts should adopt a meaning that “seems a fair and reasonable disposition” and can discount any absurd or unreasonable construction.⁹ Here, I conclude the only reasonable meaning is that Gaylene is referring to all her assets that are available for distribution. That seems to be an ordinary, straightforward, and logical reading of her words. In my view, there is no need to find problems where none exist.

(b) No certainty as to the “proportions” in which intended beneficiaries would inherit the assets

• [36] This, too, can be dispensed with quickly. In the absence of anything to suggest (or even hint) to the contrary, my view is that Gaylene’s intention is that beneficiaries under the will would inherit equally. This was Gaylene’s obvious and unequivocal intention. Mr Gilchrist noted that, while not directly on point, there is a “relevant” principle of construction set out as follows:¹⁰

[It] has been held that a bequest to A and his issue [i.e. “family” in this case] is a gift to all, to take concurrently per capita as joint tenants, but the construction will not be followed if the construction shows a different intention”.

• [37] In other words, the default position, in the absence of anything to the contrary, is that there is to be equality of distribution. This principle accords with logic and common sense. I see no reason not to adopt it and apply it here.

(c) No certainty as to the proposed beneficiaries

• [38] This is the most difficult point raised by Mr Howell. He suggests that “family” is an elastic and widely encompassing term. In this case he raises an “uncertainty” as

⁹ Abbott v Middleton [1858] EngR 989; (1858) 7 HLC 68, 11 ER 28.

¹⁰ Tate v Clarke [1838] EngR 1101; (1838) 1 Beav 100, 48 ER 876.

to whether Gaylene’s intention applies to her mother; or her siblings; or her siblings and her mother; or all those people plus cousins and possibly nieces and nephews as well; or any permutation or combination of the above.

• [39] I start this analysis by noting one of the cannons of construction highlighted by Mr Gilchrist: the Court is not at liberty to speculate upon what the testator may have intended to do and will not give effect to any intention which is not expressed or plainly implied in the language of the will.¹¹

• [40] Importantly, there is also a principle that the Court is entitled to look beyond the words of the will to find the testator’s meaning by placing itself, as nearly as may be, in the position of the testator with the knowledge of the facts upon which he acted when he made will:¹²

The Court has a right to ascertain all the facts which were known to the testator at the time he made his will, and thus to place itself in the testator’s position, in order to ascertain the bearing and application of the language he uses, and in order to ascertain whether there exists any person or thing to which the whole description given in the will can be, reasonably and with sufficient certainty, applied.

• [41] Applying that principle in this case, I bear in mind that Gaylene was a 57-year- old woman, with no children and was apparently well connected to her mother and siblings. In my view, without children of her own, it is perfectly reasonable to interpret Gaylene’s reference to “the family” as being her immediate family. I note also that she is a pākehā/European woman. It is reasonable to assume in the context of her own culture, that she is referring to her family in this way. It may have been a different story, and it may have been too difficult to draw this conclusion, if Gaylene was Māori or Pasifika where concepts of “whānau” and “aiga” are well understood to have a much wider and more inclusive context.

• [42] The principle that emerges in Abbott v Middleton is again of some help. Where there are two possible constructions the Court can discount any absurd or unreasonable construction and adopt a construction that seems a fair and reasonable disposition.

¹¹ Scale v Rawlins [1892] UKLawRpAC 21; [1892] AC 342 (HL) at 344 per Lord Watson.

¹² Charter v Charter (1874) LR 7 HL 364 at 377 per Lord Cairns.

• [43] I do not mean to say that Mr Howell’s submissions suggests an absurdity. But I think his suggestion that cousins, nieces, and nephews are included, is unreasonable and contrary to what we know of Gaylene and what I understand to be her relatively close attachment to her immediate family.

• [44] Also, there is no evidence as to how many cousins Gaylene has and whether they have any children themselves, and consequently whether she has any nieces or nephews. It is not a sensible interpretation of the transcript that Gaylene is including all her wider family as beneficiaries, so that they equally share what she would know to be a relatively moderate estate. I think it is much more probable, certainly well beyond the balance of probabilities, that she was referring to her immediate family in the sense that Mr Gilchrist has described it. And it is a reasonable assumption to make, that Gaylene would expect her siblings to make provision for their own children as they subsequently thought fit.

• [45] Mr Howell also suggested that it might be that Gaylene had some special or “favourite” nieces or nephews and that she may have wished to provide for them. If that were the case, then she can reasonably have been expected to have named and identified them in the video.

• [46] Finally, Mr Howell questioned whether it was certain that Gaylene would be including half siblings within her word “family”. I see no reason to make such a differentiation. It would not be reasonable to do so in the current age. There is nothing to suggest in any of the surrounding circumstances that this would be her thinking. On this point, Mr Gilchrist drew my attention to one of the principles of interpretation which defined “next of kin”, as including relatives of half-blood, such that “next of kin of the whole blood and next of kin of the half-blood take equally”.¹³ Again, this centuries old provision accords with modern day common sense, and a plain interpretation of Gaylene’s use of the words “the family”. I see no reason to take any contrary view.

¹³ Cotton v Scarancke [1815] EngR 974; (1815) 1 Madd 45.

Conclusion as to “certainty”

• [47] It has to be said that this video transcript is virtually the shortest possible document that could constitute a will. I conclude, nevertheless, that there is certainty of beneficiary, certainty of property (the subject of the will), and certainty of manner of distribution of the property between the beneficiaries. Short as the transcript may be, my first impressions of the transcript, reinforced after reflection and detailed argument by counsel, is that there is a clear and certain intent in the three contested respects. Contrary to Mr Howell’s submissions there is no “uncertainty” in these circumstances.

Third issue: does the September 2022 transcript express Gaylene’s testamentary intentions?

• [48] My previous findings in relation to “certainty” within the transcript are not the end of the story. The discretion to declare the transcript a valid will exists only if I am satisfied that the document expresses the deceased person’s testamentary intentions.

• [49] Mr Howell’s argument was prefaced by reference to Robinson v Beaman which stated:¹⁴

[25] We do not doubt the remedial nature of s 14 or the desirability of its robust application in cases in which the deceased’s testamentary intentions are clear but the validity of the will is frustrated by technicality. However, we begin by signalling the important qualification that lies at the heart of this case: the deceased’s testamentary intentions must be clear. Section 14 was not intended to validate a document as a will when doubt attaches to whether the document reflects the deceased’s testamentary intentions or similarly, when doubt attaches to whether the deceased’s testamentary intentions were settled

...

• [50] In support of his submission that Gaylene’s testamentary intentions were not settled, Mr Howell emphasises that Gaylene must have been aware of the need for a formal will to be prepared and had the means and opportunity to do this in the years preceding her death. The previous use of the “do it yourself will kit” would have made this clear to her. Mr Howell suggested that Gaylene would, therefore, know her video was only her preliminary view.

¹⁴ Robinson v Beaman [2023] NZCA 468.

• [51] Mr Howell also relies on Mason v Mason, where the Court commented:¹⁵

[31] It must be remembered that the main purpose of s 14 is to avoid circumstances where a testator's intentions are defeated by a failure to comply with the technicalities involved in creating valid wills. It is a provision that allows the substance to prevail over the form in those circumstances. The technicalities are themselves mechanisms to ensure that the deceased's intentions are formally and clearly recorded. But the remedial effect of s 14 still depends on the deceased having clear testamentary intentions that are being defeated by the formalities. The section should not be utilised when there are substantial doubts about what those intentions were. When there is a document prepared by a solicitor on instructions Ms Carpenter may have a prima facie case for the application of s 14. But the circumstances still need to be such that other explanations for a lack of formal execution can be excluded. That is not the case here.

(Emphasis added)

• [52] Mr Howell also argues this is not a case where Gaylene had given formal instructions to a solicitor for a preparation of the will which would more likely be seen to express the deceased’s intention. That, of course, begs the question as to whether her video transcript accurately conveys her intentions. I also accept Whata J’s observations in Feron that “the weaker the documentation, the stronger the evidence will need to be that the documents represent the intentions of the deceased”.¹⁶

• [53] Mr Howell effectively argues that the transcript was a precursor or preliminary statement yet to be finalised with settled testamentary intentions. He points to a number of what, he submits, are concerning matters.

• [54] First, the reference by Gaylene to not having changed her wishes since “December/January ‘21”. There is no document of that time period that counsel are aware of. Neither is there any particular event that is known that would trigger reference to that date. Mr Howell asserts the Court cannot be sure as to what her wishes were then—and since.

• [55] However, I accept Mr Gilchrist’s submission that Gaylene appears very emphatic as to what she wants, and that she sets this out in the video transcript. With respect to Mr Howell’s submission, I do not regard the video and the transcript as her

¹⁵ Mason v Mason [2022] NZHC 491, [2022] NZFLR 64.

¹⁶ At [19].

preliminary and unsettled view. I am satisfied the transcribed video represents her final settled intentions.

• [56] Second, Mr Howell points to the first video recording and transcript which refers to a “family trust”. He maintains, but faintly, that there must be lack of clarity because of the differences between the first and second video. Again, I accept Mr Gilchrist’s argument that, as a lay person, Gaylene in each video was talking about disposition of her property upon her death. She talks about what she would like to happen to her property in the future, which rather suggests that she will have already passed away. She also approves of Darel-Anne’s suggestion that she will be Gaylene’s power of attorney—to which she agrees.

• [57] I think in these circumstances, in lay person’s language, the difference between a family trust and a distribution under a will might be easily confused. Equally, I think reference in the two videos to a “power of attorney”, particularly in the second video transcript, is an interchangeable term with the legal term of being an executor of a will. I am quite clear that Gaylene wishes for Darel-Anne to be the executor of her will.

• [58] The first transcript also refers specifically to one brother, Jonathan, and Gaylene’s desire to be “as fair as I can to Jonathan in respect of mum’s house”. Mr Howell is concerned that the earlier video might indicate a different and specific intention for Jonathan as opposed to the other siblings. I cannot see that is the case. She has a particular desire to be fair to Jonathan but in the first video there is no suggestion of him receiving any different treatment. And as if to settle the matter, in the transcript the subject of this application, she clearly wishes distribution amongst the family, and is absolutely explicit, for a second time, that “nothing be left to Maitland”. Her intentions as to “equality” of distribution, and to exclude Maitland, are clear.

• [59] There is one matter that has given me pause for concern, being the gap of nearly four months between the date of Gaylene’s video and her death. I ask why she did not perfect her video into a written, properly lawful will? In her first affidavit, Darel-Anne advises that because Gaylene was seriously unwell, was in fragile health, and had other matters on her plate, she planned to execute a formal will once she was better.

Unfortunately, she never recovered. Given her serious ill health and hospitalisation, I conclude that the “gap” is far from fatal.

Conclusion

• [60] In approaching this case, I have been guided by the principle that Courts will always seek to avoid intestacy and will try to recognise the will-maker’s plain intentions where they are clear. Put another way, the Court will, if possible, try to uphold a will.¹⁷ In this case, Gaylene’s intentions are plain and clear and there is no need for me to adopt any strained or unreasonable interpretation based on hypotheticals or possibilities. I am content to interpret the words at face value in their ordinary meaning.

• [61] I also need to say, as respectfully as possible, that Gaylene’s eight siblings and her mother have asked for the Court to adopt no more than a reasonable and straightforward interpretation of the video transcript.

• [62] It is also fair to observe that Maitland has much to gain if the Court does not declare this video transcript a valid will. It will result in Gaylene’s intestacy and in that eventuality, I am advised that under the Administration Act 1969, Maitland may be entitled to a grant of $150,000 together with two-thirds of Gaylene’s estate. Gaylene’s family suggests that Maitland’s interests have caused him to adopt what is a strained and obstructionist approach to interpreting what are Gaylene’s straightforward and readily understandable testamentary intentions.

• [63] In all the circumstances, contrary to Mr Howell’s submission, I am satisfied that the most recent transcript expresses Gaylene’s testamentary intentions. The transcript of the video is declared a valid will under s 14 of the Wills Act.

¹⁷ See Crawford v Phillips [2018] NZCA 208, [2018] 3 NZLR 247.

• [64] Counsel are encouraged to seek agreement regarding costs. In the absence of agreement, the applicant is to file written submissions within 14 days of the date of this re-issued decision. The respondent shall reply within 14 days of receiving those submissions. Submissions are to be brief and focused, by which I mean no more than two pages. Costs will then be determined on the papers.

• [65] I order accordingly.

Becroft J