MASON v MASON [2022] NZHC 491

MASON v MASON [2022] NZHC 491 [17 March 2022]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECIV-2021-406-20[2022] NZHC 491UNDER Section 14 of the Wills Act 2007IN THE MATTER of the estate of Tauhuaraki MasonBETWEEN KIPA TAUHUARAKI IAN MEIHANAMASONApplicantAND ARENA KEITA MASON, RAEAIMAIJUNE NICKLIN AND MARAMA CONNIEBEATTIERespondentsHearing: 23 February 2022Appearances: Q A M Davies and J S Marshall for the ApplicantM J Radich for the RespondentsJudgment: 17 March 2022JUDGMENT OF COOKE J[1] By originating application dated 3 June 2021 the applicant applies for an orderthat an unexecuted draft will of his father, Mr Tauhuaraki Mason (Mr Mason) bedeclared as his last will in accordance with s 14 of the Wills Act 2007 (the Act). Theapplication is supported by affidavits from the applicant and Mrs Constance Mason(Mrs Mason), who is the applicant's mother and the former wife of Mr Mason. Theapplication is opposed by the applicant's three siblings: Ms Arena Mason,Ms Raraimai Nicklin and Ms Marama Beattie. An affidavit of Ms Arena Mason hasbeen sworn in opposition.[2] As matters presently stand the applicant and his three sisters share equallyunder their father's properly executed will from 1979. A replacement will was draftedin 2000 but never executed, under which the applicant is bequeathed his father's Māorilandholdings to the exclusion of his sisters. He now seeks to have this will declaredhis father's last will.Background[3] I begin by setting out the relevant facts. This will involve making some factualfindings.[4] Mr Mason died September 2020 at Koromiko, north of Blenheim. He was thenaged 67 and living alone in a campervan. He left a will dated 6 November 1979. Theexecutor under the will is a trustee company, now New Zealand Guardian TrusteeCompany Ltd. His estate is to be divided equally between his four adult children —the applicant and the respondents. Whilst the will provided for Mrs Mason by itsterms, these dispositions are void as a consequence of the dissolution of their marriagein 2004.1 On his death, Mr Mason's assets were the proceeds of the sale of his home(which he had sold a month before his death), cash and various chattels, and interestsin Māori and European freehold land in various locations around Marlborough. Theestate has not yet been distributed.[5] The application focusses on Mr Mason's intentions with respect to his Māorilandholdings. Mr Mason had associations with Ngāti Kuia, Ngāti Apa and Rangitāne.One of the pieces of Māori land of significance was land at Anakoha Bay, a propertythat had been enjoyed by the family over the years. The other Māori land interests arein various parcels of land around the region where the interests were held morediversly with other Māori landowners. The evidence from the applicant and hismother is that it was Mr Mason's intention to leave his interests in the Māori land tothe applicant alone.1 Wills Act 2007, s 19.[6] In April 2000 Mr and Mrs Mason approached Mr Brian Dwyer (now HisHonour Judge Dwyer) of Radich Dwyer Hardy-Jones and Clark with instructions toprepare new wills for both of them. By letter dated 4 April 2000 Mr Dwyer sent themdraft wills for their consideration. Mr Mason's draft will is the document which issought to be validated by this application.[7] There is little evidence before the Court relating to the circumstancessurrounding the preparation of these draft wills. Mrs Mason says that Mr Mason'sfirst will was prepared after the birth of their first child, Arena and at that stage theyowned no land apart from a house in Picton. She says that by 2000 Mr Mason hadobtained interests in Māori and European land and that he had wanted to leave hisMāori land interests to the applicant. She said the new wills were prepared as aconsequence. She says she recalled them reading over the draft wills and that theydecided to sign them and that she was surprised to find out that they had not beenexecuted after his death. She says " I can only assume that while we intended tosign the wills but did not get around to doing so before we went back to the Sounds,as we usually did each year".[8] There is no evidence before the Court from the solicitor who prepared the willexplaining the circumstances. Among the documents are an email exchange betweenthe applicant's solicitors and Judge Dwyer dated 9 December 2020. In his email JudgeDwyer says:I remember Mr and Mrs Mason who were clients of mine living atKoromiko. I can recall being told that they were splitting up at some stage butcan't remember anything about their will instructions or any subsequentconfirmation.[9] Judging from the email exchange Judge Dwyer was not given access to anyfile.[10] The terms of Mr Mason's draft will involved significant changes from theearlier will which it revoked. The executors are identified as Mrs Mason, Mrs DianeSolomon and Mrs Alison Brooke. Mrs Solomon was a close friend of Mrs Mason andnow lives in Australia. Mrs Brooke was an accountant, now retired. She had noprofessional or personal relationship with Mr Mason following the end of his marriageto Mrs Mason that I describe below.[11] Under the draft Mrs Mason is bequeathed all of Mr Mason's personalpossessions (including livestock, cash etc) owned by him on his death if she survivedhim. Certain specific bequests are made to the children. All of the interests he heldin Wakatu Corporation are left in equal shares to them, as are his interests in the landat Anakoha Bay. The applicant is left all of his other interests in Māori land. A specificbequest is made for him of his hunting and fishing equipment and Mr Mason'swedding ring. A specific financial bequest is made to a granddaughter, AnaheraMason. The balance of the estate is left on trust to Mrs Mason as a life interest, andon her death in equal shares to his children. The application proceeds on the basis thatthe bequests to Mrs Mason, and her executorship, are void as a consequence of s 19.[12] Within a period of four months from the preparation of the draft wills Mr andMrs Mason had separated. Their marriage was subsequently dissolved. AMatrimonial Property Deed dated 13 February 2004 was later signed. It appears tohave been prepared by Mr Michael Hardy-Jones of Radich Dwyer. Under the Deedthe farm property at Koromiko and associated assets (including the livestock) weretreated as the separate property of Mrs Mason, and the property at Anakoha Bay andcertain trucks and equipment were treated as separate property of Mr Mason. Thefarm property was where Mr and Mrs Mason lived during their relationship. Land inthe ownership of one or other of them remained the property of that person, meaningthat the Māori landholdings and other landholdings of Mr Mason remained hisproperty. There were other provisions, including a monetary payment fromMrs Mason to Mr Mason.[13] Apart from the formal record of the Matrimonial Property agreement there islittle evidence of the intentions of the parties at either the time of their separation in2000, or the signing of this agreement in 2004. The changes to the property owned byeach of them at this stage might have given rise to a consideration of their wills. I donot have any evidence of the consideration given to Mr Mason's will at this stage fromthe solicitors dealing with the matter. Neither has Mrs Mason explained what, if anysteps were taken in relation to her own will.[14] In her reply affidavit Mrs Mason says that they each kept their land interestsseparate under their agreement. She says that their separation was amicable and thatMr Mason was happy for her to keep the farm on separation. She says it was alwaysclear what was his to give to his children, and what was her property because that wasset out in the separation agreement and that "I am confident that is why he did notbother to update his Will". She reiterates his intentions over many years were"consistent with the will drafted by Brian Dwyer in 2000".[15] Ms Arena Mason says that it was not her father's intention to leave the Māorilandholding only to the applicant, and that this was never raised with them. She saysthat in 2019 she discussed the Māori landholdings with her father. She says that atthis stage she purchased a will kit at his request and that there were some discussionsabout updating his arrangements. She says that he wanted to take steps to vest thoseinterests in a whānau trust, including because he now had nine grandchildren. Shesays that this was discussed with her sisters and that they also suggested to him thathe sell some of his European land rather than him selling his home as he needed somecash. She said that Ms Marama Beattie raised the matters with the applicant and thathis response was anger, and due to this Mr Mason said that "we should just leave it forthe time being".The relevant principles[16] There is no dispute that the unexecuted will does not comply with therequirements for a valid will. Section 14 of the Act 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, ifit is satisfied that the document expresses the deceased person'stestamentary 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.[17] In Re Estate of Campbell MacKenzie J said of the requirements:2[The] document must meet the three requirements in s 14(1). The first is thatit appears to be a will. From the cases in which the section has been applied,it emerges that this requirement is concerned with the content of the documentand what it conveys, rather than its form. As well as documents which havethe physical form of a will, such as draft wills and unsigned or wrongly signedwills, documents which do not have a form customarily expected of a willhave been accepted as meeting this requirement. Informal documents whichhave been validated include documents which the deceased has prepared, suchas a suicide note.3 They also include documents which the deceased has notprepared, such as a solicitor's file note of instructions.4 The essential inquiry,under s 14(1)(a), is whether the document does any or all of the thingsdescribed in the definition of the word "will" in s 8 of the Act. The documentsought to be declared valid here meets that requirement, in that it was in aform suitable for signature.[18] In Re Estate of Feron Whata J described the overall approach in the followingway:5In Re Estate of Murray6 MacKenzie J helpfully essays a number of authoritiesdealing with section 14. Those authorities illustrate that a robust approach tothe application of section 14 is called for. For my part, I also prefer to approachthe interpretation of the Wills Act 2007 in a manner that gives full vent to theostensible purpose of s 14, namely to validate documents that plainly expressthe testamentary wishes of a deceased person. Section 14 (2) confers adiscretionary power to make a declaration on satisfaction that the documentexpresses the deceased person's intention. The section is concerned withsubstance not form. Furthermore, in reaching a conclusion I am also affordeda broad power to consider evidence on the deceased's testamentary intentionsand of statements made by the deceased person.2 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].3 Re MacNeil (2009) 10 NZCPR 770 (HC).4 Re Taigel [2014] NZHC 844.5 Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].6 Re Murray (Deceased) HC Masterton CIV-2011-435-000178, 20 December 2011.[19] When a will has been formerly prepared by a solicitor as a consequence ofinstructions from the deceased it may be more likely to be found to capture thedeceased's intentions. In Re Bishop (Deceased) MacKenzie J suggested the followingapproach in these circumstances:7To be satisfied that an unsigned draft will expresses the deceased'stestamentary intentions, this Court must consider carefully whether the failureto sign the draft might indicate a change of mind on the part of the deceasedafter giving instructions for the will to be drafted. That possibility must beclosely examined here. The draft will was prepared in 2009. The deceased didnot die until 2013. His failure to sign the will cannot be explained by hishaving been prevented from signing the will by later events. It is necessary tolook at other circumstances, to decide whether those exclude the possibilitythat the failure to sign the will was a deliberate decision, because of a changeof mind. Only if those other circumstances are sufficiently compelling toexclude that possibility can the Court be satisfied that the draft will reflectsthe testamentary wishes of the deceased.[20] I agree with this general approach, which has been applied in other cases. InRe Estate of Hickford (Deceased) MacKenzie J addressed why such a will had notbeen executed and concluded that the deceased thought he did not need to do anythingfurther.8 In Tamarapa v Byerley Moore J similarly found that the deceased eitherforgot about signing the draft will or did not think he needed to do anything further.9A similar conclusion was reached by Gault J in Re Mitchell.10Application of the principles in the present case[21] Ms Radich submitted that there was a factor that was fatal to the applicant'sapplication of these principles in this case. This was that his evidence, and that of hismother, were to the effect that Mr Mason intended to leave all his Māori landholdings,including those at Anakoha Bay, to the applicant. Yet the terms of the draft will didnot do that — it left Anakoha Bay equally to all the siblings, with only the other Māorilandholdings left to the applicant. She argued that this was a fatal mismatch betweenthe suggested intentions of Mr Mason and the document relied upon.7 Re Bishop (Deceased) [2014] NZHC 3355 at [6].8 Re Estate of Hickford (Deceased) HC Napier CIV-2009-441-00369, 13 August 2009.9 Tamarapa v Byerley and Anor [2014] NZHC 1082 at [39].10 Re Mitchell [2020] NZHC 2379.[22] I do not accept that submission. I agree that it is relevant that the documentdoes not fully correspond to the applicant's evidence of Mr Mason's intentions. Butthis case involves the preparation of a draft will on instructions given to a solicitor.The existence of such a document by itself carries an implication that it reflects thedeceased's intentions. That implication can then be supported by other evidence, suchas that provided by the applicant and Mrs Mason that he did indeed intend to leave theapplicant his Māori landholdings. The fact that the draft will only left him some, butnot all of those landholdings does not mean that the draft will does not reflect hisintentions. It may just mean that when it came to the manifestation of the intention inthe will he decided that Anakoha Bay should be treated differently.[23] I also do not accept Ms Radich's submissions that the draft will cannotrepresent Mr Mason's intentions because the document clearly did not reflect what hewould have wanted at the time of his death many years later. For example she arguedthat he plainly would not have intended Mrs Solomon or Mrs Brooke to be hisexecutors given that they were no longer in his life and were more closely connectedwith Mrs Mason in the first place. In addition the draft will made provision for onlyone grandchild when there were many more at his death. But without suggesting ahard and fast rule the relevant intention will more likely be that existing at the time thedocument was created. The fact that subsequent events mean that this document isnow out of date does not mean in itself that it did not reflect the deceased'stestamentary intentions at the time it was created for the purpose of s 14, particularlyin a case where a formal will is prepared but simply not validly executed.[24] But I do accept some of Ms Radich's other arguments, and have concluded thatI cannot be satisfied that the document evidences Mr Mason's testamentary intentionsfor the purposes of s 14. As MacKenzie J indicated in Re Bishop (Deceased) it isnecessary to consider the reasons why a will prepared by a solicitor on instructionswas not executed. The circumstances need to be sufficiently compelling to excludethe prospect that execution did not take place because there were developments thatmeant that the document no longer represented what Mr Mason wanted to do.[25] The fact that Mr and Mrs Mason had separated within four months of thepreparation of this document gives rise to the distinct possibility that circumstanceshad changed sufficiently for him not to proceed through with the proposals. The draftswere joint wills their solicitor had prepared. Such joint wills are common for those inmarriage partnerships. But here the partnership began coming to an end shortly afterthe wills were prepared. The same solicitors were then instructed to act for Mr Masonon the subsequent separation and dissolution. The terms of the Deed then executed in2004 recording how their property would be divided then suggests that the joint willsearlier prepared no longer reflected his intentions. Indeed the terms of the Deed areinconsistent with the draft will. Under the draft will Mr Mason left his interests incertain chattels, including the livestock, to Mrs Mason if she survived him. Yet underthe Deed the farm and all its chattels, including the livestock, were treated as herseparate property, and not his property.[26] In those circumstances there is another plausible explanation for whyMr Mason did not execute the draft will. That is because his relationship withMrs Mason was breaking down, leading to their separation a matter of months later.Their plan for joint wills under which they left their property to each other no longerreflected their current circumstances.[27] The fact that there is no evidence from the solicitor who prepared the willaddressing both the circumstances under which it was prepared, and the subsequentseparation and dissolution of the marriage, is problematic. When a solicitor hasprepared a will it is not uncommon for that solicitor to provide an affidavit in supportof an application of this kind. There is no such evidence here. I note that Judge Dwyerdoes not appear to have been the only solicitor involved, and neither does there appearto be information from the solicitor's file.[28] It is also relevant that Mrs Mason can only presume what the reasons were fora lack of execution of the draft wills in 2000 — that they didn't get around to it beforegoing back to the Sounds. She also does not say what happened with her own willonce there was a separation and dissolution of the marriage. I do not doubt herevidence. She is seeking to explain what she and her former husband did some 20years ago. But her evidence does not exclude the possibility that Mr Mason becameless certain about what should happen with his property on his death and the plan forjoint wills.[29] I accept Mr Davies argument that the focus should be on Mr Mason'sintentions in relation to the applicant, rather than Mrs Mason. The draft will appearsto reflect the instructions given to a solicitor, which would suggest that he did intendto leave his Māori landholdings to the applicant. Separation and dissolution of themarriage would not necessarily change that. But on the other hand there is theevidence from Ms Arena Mason, which I also do not doubt, that the subject of Māorilandholdings came up again in 2019 and that Mr Mason thought at that time that theyshould be left to a whānau trust, including because of the existence of thegrandchildren. I accept that discussions were had with the sisters, that the applicantbecame involved in the discussions, but that Mr Mason then decided not to do anythingbecause there was disagreement amongst his children. There is no evidence that atthis stage it was understood that he was leaving his interests in Māori land to theapplicant alone under a will as might be expected if that is what he had done.[30] That is also a potential explanation for why his draft will was not executed in2000. I accept that he was attracted to the idea of leaving at least some of his Māorilandholdings to his son in accordance with the more traditional values that may havebeen in his mind at that time, but he never came to the point of finally given effect tosuch an idea by executing a document to that effect. The evidence is equally consistentwith these plans being part of the arrangements for joint wills with his wife whichwere not to follow through with due to the changes taking place in their relationship.[31] It must be remembered that the main purpose of s 14 is to avoid circumstanceswhere a testator's intentions are defeated by a failure to comply with the technicalitiesinvolved in creating valid wills. It is a provision that allows the substance to prevailover the form in those circumstances. The technicalities are themselves mechanismsto ensure that the deceased's intentions are formally and clearly recorded. But theremedial effect of s 14 still depends on the deceased having clear testamentaryintentions that are being defeated by the formalities. The section should not be utilisedwhen there are substantial doubts about what those intentions were. When there is adocument prepared by a solicitor on instructions the applicant may have a prima faciecase for the application of s 14. But the circumstances still need to be such that otherexplanations for a lack of formal execution can be excluded. That is not the case here.[32] For these reasons the application is dismissed. Normally the respondentswould be entitled to costs on a 2B basis. If costs cannot be agreed the respondentsmay file a memorandum (no more than five pages plus a schedule) within five workingdays, to be responded to by the applicant (no more than five pages plus a schedule)within five working days.Cooke JSolicitors:Gascoigne Wicks, Blenheim for the ApplicantRadich Law, Blenheim for the Respondents