Estate of Mitchell [2024] NZHC 811 (16 April 2024)

Last Updated: 12 August 2024

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

CIV-2024-404-274 [2024] NZHC 811

IN THE MATTER	of sections 14 and 31 of the Wills Act 2077
AND IN THE MATTER	of an application by GAYLEEN DORIS CARSON for an order that a document be declared a valid will of the deceased, ANDREW JONOTHAN MITCHELL, and for an order correcting errors within that document

Hearing:	11 April 2024 via VMR
Counsel:	R Rao for the Applicant Gayleen Doris Carson A L Patterson and D Foster for Callum Jason Paul Ryan and Joanne Ina Adele Reid
Judgment:	16 April 2024

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 16 April 2024 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

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

Solicitors:

Mr R Rao, Inder Lynch, Manukau

Ms A L Patterson and Mr D Foster, Thomson Wilson, Whangarei

RE ESTATE OF ANDREW JONOTHAN MITCHELL [2024] NZHC 811 [16 April 2024]

• [1] The applicant, Ms Carson, applies for an order under the Wills Act 2007 declaring a document to be the valid will of the deceased, Andrew Jonothan Mitchell, and for an order correcting errors within that document.

• [2] The application is unopposed. However, Mr Ryan (a friend of Mr Mitchell, a named executor under the will, and a witness to Mr Mitchell’s signature), Ms Reid (Mr Mitchell’s sister) and Ms Belfield (Mr Mitchell’s niece) have filed affidavits. Those affidavits call into question some of the provisions of the will and Mr Mitchell’s testamentary intentions.

Relevant facts

• [3] From August 2020 until his death in October 2022, Mr Mitchell and Ms Carson were in a relationship. Mr Mitchell has no children. Ms Carson has two children, “A” (12 years old) and “T” (13 years old).

• [4] In early July 2022, Mr Mitchell began the process of moving from the house he owned in Māngere to Ms Carson’s property in Papatoetoe. Ms Carson has sworn an affidavit stating that by late August 2022 Mr Mitchell was predominantly staying with her and her family at her property.

• [5] Ms Carson explains that Mr Mitchell proposed to Ms Carson on her birthday (1 October 2022). At the time of his death, they were engaged with plans to be married in March 2023.

• [6] On the morning of 7 October 2002, Ms Carson found Mr Mitchell unconscious outside the entrance to his Māngere property. He passed away a few weeks later on 20 October 2022 without ever regaining consciousness.

• [7] Prior to his passing, Mr Mitchell had prepared a will using a “do it yourself will” kit of the type available in bookstores. Mr Mitchell completed the form entitled “will for a single person” in this kit. He did so by filling in the blank parts of the form in handwriting.
• [8] Features of the will include the following:

(a) Mr Ryan and Ms Carson are named as the executors;

(b) Ms Belfield is named as the substitute executor;

(c) specific items of property are gifted to Mr Ryan and to Simon Reid (Mr Mitchell’s brother-in-law);

(d) Ms Carson’s two children are each given a half-share in Mr Mitchell’s residential property in Māngere to be held in trust until they reach the age of 25;

(e) Ms Carson and Ms Reid are each gifted a half-share of Mr Mitchell’s cash assets; and

(f) Ms Reid is named as the residuary beneficiary.

• [9] The will is signed by Mr Mitchell and dated 27 August 2022. Mr Ryan states that on that evening, he and his brother, Ian Ryan, witnessed Mr Mitchell’s signature while visiting Mr Mitchell at his property in Māngere. Mr Ryan deposes to reading the document carefully before Mr Mitchell signed it. He is sure that Ms Carson’s appointment as an executor was not recorded in the document that he witnessed. He also states that clauses 3(f) and 3(g), which provide for Mr Mitchell’s cash assets to be gifted equally to Ms Carson and Ms Reid, were also not included in the will that he witnessed.

• [10] On the same evening that the will was signed, Mr Ryan says that Mr Mitchell told him that he was considering revising the will to include Ms Carson as a beneficiary. Mr Ryan saw Mr Mitchell put the document into the safe at his Māngere property.

• [11] Ms Carson says that she saw Mr Mitchell at his Māngere property the day after the will was signed (28 August 2022), and that he withdrew the document from his safe and showed it to her. Her evidence is that at the time she was shown the will it

contained the parts that are disputed by Mr Ryan. She says Mr Mitchell gave her a spare key to the safe, and told her he wanted to make sure that she, and her children, were taken care of if he was to pass away. Sometime after Mr Mitchell’s death, Ms Carson retrieved the original will from the safe.

• [12] Ms Reid and Ms Belfield have filed affidavits which depose to conversations and communications they had with Mr Mitchell regarding his relationship with Ms Carson. I return to these conversations and communications later in this judgment.

Legal principles

• [13] Section 7 of the Wills Act provides that a will is valid if it complies with the requirements set out in s 11 of the Act or if it is declared valid by the Court pursuant to its power of validation under s 14.

• [14] Section 11 of the Act sets out the requirements for validity of wills. Relevantly for this case, a will must be signed and witnessed in the will-maker’s presence.¹

• [15] Section 14 of the Act provides that where a document appears to be a will but does not comply with s 11, the Court may make an order declaring the document valid if it is satisfied that the document expresses the deceased’s testamentary intentions.

• [16] The principles relevant to s 14 are well settled. The onus rests on the applicant to satisfy the Court on the balance of probabilities that the document propounded as the last will of the deceased reflects the testamentary intentions of the deceased. The Court is entitled to take into account any evidence that may assist in determining whether a document expresses the testamentary intentions of the deceased. The focus is on substance and intention rather than form. That is necessary to ensure that a person who in good faith sets out to express testamentary intentions should not have those thwarted by technicalities.²

¹ Wills Act 2007, s 11(4).

² McKay v St Vincent de Paul New Zealand [2022] NZHC 846 at [13], citing Re Estate of Wong

[2014] NZHC 2551 at [24].

• [17] Section 31 of the Act provides that the Court may make an order correcting the will when the High Court is satisfied that a will does not carry out the will-maker’s intentions because of a clerical error or it does not give effect to the will-maker’s instructions.

Should the will be validated?

• [18] The starting point is to consider the terms of the will. On its face, the document complies with all the requirements for a valid will: it is in writing, contains an attestation clause, and was signed by Mr Mitchell in the presence of attesting witnesses.

• [19] Mr Ryan’s affidavit raises issues about the validity of those portions of the will which appoint Ms Carson as executor, and which give Ms Carson and Ms Reid a half- share of Mr Mitchell’s cash assets. Mr Ryan is adamant that those parts of the will were not in the will that he witnessed. There is nothing to contradict Mr Ryan’s affidavit which is accepted on its face.

• [20] It is important to note that Mr Ryan does not allege that the challenged parts of the will are a result of forgery or fraud. As he acknowledges, they appear to be in Mr Mitchell’s handwriting and there is nothing obvious to indicate they were added by someone else. Accordingly, I proceed on the basis that Mr Mitchell added those provisions himself, after the will was witnessed by Mr Ryan. Given Ms Carson’s evidence about being shown the will the next day with the disputed provisions included, it appears that any provisions added by Mr Mitchell were added soon after the will was signed.

• [21] The issue is whether the unwitnessed parts of the will reflect Mr Mitchell’s testamentary intentions. The affidavits filed by Ms Reid and Ms Belfield are directed to this issue. Ms Reid attaches a text message received from Mr Mitchell on 21 August 2022 in which he asks her to “de-friend” Ms Carson from Facebook as he does not want her anywhere near his family.
• [22] Ms Belfield also refers to communications with Mr Mitchell regarding Ms Carson. Most significantly, Ms Belfield deposes to a text exchange with her uncle on 29 August 2022 in which he says “Hi. I need to take Gaye’s name off my will. Do you want to be an executor for me please?”. However, in another conversation on 31 August 2022, Mr Mitchell is alleged to have told Ms Belfield that he wanted to leave Ms Carson something and mentioned a share of his cash. He also said that even if he had split up with Ms Carson by the time he died he still wanted her to have something.

• [23] The evidence suggests that there was some volatility in the relationship between Mr Mitchell and Ms Carson. I accept that, at times, Mr Mitchell may have expressed a desire to exclude Ms Carson from the will. However, there is no evidence that he took steps to act on this intention. Indeed, there was plenty of opportunity to do so given that the will was kept in his safe at his home between 28 August 2022 and when he lost consciousness on 7 October 2022. The fact that there is nothing on the face of the will indicating that he had changed his mind about excluding Ms Carson, suggests that his testamentary intentions remained consistent to the end with what he had written in the will. That is consistent with Ms Belfield’s evidence regarding keeping Ms Carson in the will even if they were no longer together at the time of his death.

• [24] On balance, I am satisfied that the will, including the unwitnessed portions, reflect Mr Mitchell’s testamentary intentions and an order validating that document is appropriate in all the circumstances.

Should the will be corrected?

• [25] The applicant seeks corrections to clauses 3(d) to 3(g) of the will so that they more accurately reflect the testator’s intentions.

• [26] I am satisfied that the corrections are appropriate and accurately reflect the testator’s intentions. There is no substantive change rendered to the will by the corrections sought. The corrections are set out in the orders made at the end of this judgment.

Result

• [27] I make the following orders:

(a) The document dated 27 August 2022 is declared a valid will of the deceased Andrew Jonothan Mitchell.

(b) Clauses 3(d)–3(g) of the will are corrected so that they read:

3(d) I GIVE a one-half share of my property at 32 Skipton Street, Māngere East, Auckland to “A” upon her attaining the age of TWENTY-FIVE (25) years.

3(e) I GIVE a one-half share of my property at 32 Skipton Street, Māngere East, Auckland to “T” upon him attaining the age of TWENTY-FIVE (25) years.

3(f) I GIVE a one-half share of my cash assets to JOANNE REID.

3(g) I GIVE one-half share of my cash assets to GAYLEEN CARSON.

Edwards J