MILLS v LABOYRIE [2018] NZHC 1368

MILLS v LABOYRIE [2018] NZHC 1368 [11 June 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV 2017-419-0213[2018] NZHC 1368BETWEEN TERENCE PATRICK MILLSApplicantAND PAULINE CLAIRE LABOYRIE, KEVINBERNARD MILLS, MARY DIANNEGEMMEL, DAVID MICHAEL MILLS,LINDA BERNADETTE MILLS, andWAYNE FRANCIS MILLSRespondentsHearing: 21, 22 May 2018Appearances: M D Branch and K F Shaw for ApplicantM S McKechnie for RespondentsJudgment: 11 June 2018JUDGMENT OF JAGOSE JThis judgment is delivered by me on 11 June 2018 at 4.00pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel:Murray McKechnie, Barrister, RotoruaHarkness Henry, AucklandCopy to:Bell & Graham, Matamata[1] Stephen John Mills died on 14 April 2017, from complications arising from hislengthy illness with multiple sclerosis. Stephen was a draughtsperson with the formerDepartment of Lands and Survey until, I apprehend, progress of the disease forced hisretirement.[2] Stephen was one of eight siblings. His brother, Terence, seeks validation of adocument as Stephen's will. The other six siblings are named as respondents.[3] I now explain the background to that document.Document leaves "everything" to Terence[4] At the time of his death, Stephen lived at 48 Galway Avenue in Hamilton East.The property was his family's home, where he previously lived with their mother.Their mother's estate was left equally to the eight children. On their mother's death,Stephen – with assistance from Pauline, Mary, and Wayne, who left their share of theirmother's estate in the house – acquired his mother's principal asset, the family home.[5] Although I am not required to decide its impact in the present proceeding, itappears those four siblings established the Galway Trust by deed dated 5 November2004. A memorandum of guidance for the Trust dated the same day records they were"purchasing the family property in the name of the Trust": Stephen contributing 68%of its purchase price by equity and mortgage finance; the balance contributed by theother three. The memorandum states they wished "[t]o primarily provide for securityfor Stephen during his lifetime and in particular to provide an adequate level of incomein retirement (including health care)". However, Pauline's solicitor, Kevin AshleyBooth, advised by affidavit sworn 20 September 2017 the mortgagor required Stephento be the registered proprietor on the property's title, which he prepared accordingly.[6] Mr Booth also said Pauline brought Stephen to his office for the preparation ofa will in early 2010. A draft will was prepared, providing for equal distribution ofStephen's estate between his siblings, excluding Linda. Mr Booth advised heunderstood Stephen was disinclined to benefit Linda under the will, because Linda hadwanted their mother's house sold after her death. Stephen did not respond to Mr Boothon the draft will. But I note Terence, and presumably also David and Kevin (as wellas Linda), took their shares from the house's sale.[7] Before Stephen's death, he required daily care, provided by AccessCommunity Health. One of those carers, Elzonia Cyfert, said in evidence Stephenbecome "anxious" about the fate of the property after his death. He wanted to preparea will. Ms Cyfert obtained a will kit for him. She explained Stephen asked her to findout from his brother, Terence, whether he knew of a Justice of the Peace who couldassist. Ms Cyfert made that enquiry of Terence, who told her a Ken Price would attendon Stephen on 12 April 2017.[8] However, before Mr Price's attendance, on 10 April 2017, Stephen asked MsCyfert to "write up the will kit with him". Ms Cyfert explained Stephen struggled towrite. "[S]itting up in his bed at the time", he told her what he wanted it to say, andshe wrote that down in the section of the will kit marked 'Will for a Single Person'.She read out what she wrote to Stephen. On that document, she:(a) filled in his name and the date on the section's front page; and recordedhis full name and address and occupation ("retired") in the descriptorfollowing "This is the last will and testament of me";(b) wrote Terence's full name, address and occupation at paragraph 2, forappointment of executors and trustees of Stephen's will;(c) under paragraph 3, wrote Stephen gave "everything" to Terence; and inparagraph 4, wrote Terence's name and address as recipient of theresidue of Stephen's estate, after payment of debts and expenses;(d) in the will kit's schedule "List of assets", recorded his home's addressas "Solely held", and added "1 Suzuki RG 400 1987" and "AllHousehold contents";(e) entered Terence's name and address as Stephen's brother to the willkit's schedule "List of possible executors";(f) under "Relatives" in the will kit's schedule "List of possiblebeneficiaries", entered Terence's name, ticking columns "Asset 1" and"Asset 2" alongside, and entered "Everything" in the column "Others".[9] Stephen was admitted to hospital on 11 April 2017, where he died on 14 April2017. After Stephen died, Ms Cyfert explained the document's provenance in "Notes"to section 6 of the will kit.Validation of wills[10] Section 14 of the Wills Act 2007 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.[11] It is common ground s 14 applies to the document created by Ms Cyfert,because it (a) is a document; (b) appears to be a will; and (c) does not comply with s11 (which relevantly requires the document to be signed and witnessed).[12] I may declare the document Stephen's valid will if I am satisfied the documentexpresses his testamentary intentions. The discretion conferred by s 14 is residual only:good reason would be required to refuse an order if so satisfied.1 I am essentially to1 Balchin v Hall [2016] NZHC 837 at [11]."evaluate the relevant circumstances and come to a conclusion".2 I am to take "a robustapproach".3 In Re Campbell (deceased), MacKenzie J observed:4The overwhelming preponderance of successful applications indicates thatthis Court has considered s 14 to be a remedial provision, and that where thereis evidence of the deceased person's testamentary intentions, it is better thatthose intentions be given effect, in preference to the disposition of propertywhich would take effect under any previous will, or on an intestacy. Generally,the existence of the document will in itself, before its contents are considered,be an indication that the deceased person did not wish the disposition whichwould otherwise occur to take place. The preponderance of successfulapplications suggests that this Court recognises it as appropriate to give effectto the contents of the document in preference to the disposition, which thedeceased person has, by the document, shown a wish should not apply.Does the document express Stephen's testamentary intentions?[13] Terence's application, for the document's validation as Stephen's will, isopposed by the other siblings. Their opposition focuses on two aspects of Ms Cyfert'sevidence: the circumstances in which she obtained the will kit for Stephen; and thearrangements made for its execution by the Justice of the Peace. They required MsCyfert, Mr Price, and Terence to be produced for cross-examination.[14] The siblings' opposition at the hearing did not maintain their formal groundsof Stephen's lack of testamentary capacity; the document's inconsistency with anearlier draft will; or Terence's undue influence (whether or not through Ms Cyfert)over Stephen. There was no substantial evidence tendered in support of the first andlast of those, and Mr Booth's evidence of the circumstances of his drafting a will forStephen in 2010 was tentative as to the extent to which the draft bore Stephen'stestamentary intention.52 Re Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].3 Watt v Owston-Doyle [2015] NZHC 1292 at [12] citing Re Feron [2012] NZHC 44, [2012] 2NZLR 551 (HC) at [11].4 Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 (HC) at [18].5 Although Mr Booth's first affidavit deposes "I took instructions from Stephen Mills to prepare awill", a crucial aspect is expressed as "It was explained to me", without identifying by whom.—obtaining the will kit[15] Ms Cyfert's initial affidavit sworn 3 July 2017 explained, after Stephenrepeatedly asked her how to organise a will and about a will kit, she told him she"would look at getting a will kit for him from Whitcoulls".[16] On 23 April 2017, Mary called Ms Cyfert on a speakerphone in Pauline'spresence. It seems Terence told Mary Ms Cyfert told him Stephen had made a will.The following day, Mary and Pauline wrote in a note their recollection of Ms Cyfert'sresponse to their enquiry of that, including:Yes that's right. I asked Steve if he had a will and he said no. I went toWhitcoulls and bought a will pack, and wrote the will myself on Steve'sinstructions. I am Power of Attorney so I could manage Steve's financesbecause I was worried about his finances and wanted to help. I think a weekbefore Steve went to hospital he had a stroke and he got worse since then. Igot a JP, Janet the other caregiver was in the house and the physiotherapistwas there to witness the will.Although their note appears to record Ms Cyfert's response verbatim, there was noevidence the call was recorded and/or transcribed.[17] In her affidavit sworn 6 November 2017, Ms Cyfert replied to the note:(a) Steve asked me to write out his Will for him. At the time I rememberthat I said something like, "Do you not have a Will?" and he replied"No".(b) I never said to anyone that I was Steve's power of attorney. One of theMills family asked me over the phone if I was and I said no.(c) I never said that Steve had a stroke. I would not do that. [T]hat is notmy role.(d) One of the Mills' family asked me about what I had done regardingSteve's will and I told them that I had asked Terry to organise a Justiceof the Peace. I had also previously asked the Physiotherapist if a socialworker could come and visit Steve to sort these kinds of needs out forhim. That did not happen though.Ms Cyfert's paragraph (d) above is consistent with other accounts she has made, bothin this proceeding and to her employer. In my view, Pauline and Mary misunderstood,or erred in their subsequent recollection of, what Ms Cyfert told them. I prefer MsCyfert's account of the telephone conversation.[18] However, in a further affidavit sworn 27 April 2018, Ms Cyfert said:1 I have made a mistake in my prior evidence when I said that Ipurchased the will kit for Stephen Mills after he asked me to get onefor him.2 Stephen asked me several times if I could purchase a will kit for him.It is correct that at the time Stephen was asking me about this I toldhim that they were available and that I could look at getting him onefrom Whitcoulls.3 I did bring Stephen a will kit. However, I did not buy it for him. Ihad some will kits that my husband and I had purchased in Aucklandin 2016 for our family. I thought that we had got these fromWhitcoulls but it turns out that they were from Paper Plus. We hadpurchased 5 or 6 of these. I only recalled that they were from PaperPlus when I looked at the stickers on the back of the copies that I stillhave. I believe that we purchased these in early 2016. It was a cashtransaction. They cost $19.99 each.4 When we moved down from Auckland the will kits were stored in aplastic container in my car. After Stephen Mills kept asking me abouthelping him to organise a will, I gave him one of those will kits.The trigger for that correction appears to have been Ms Cyfert's rediscovery of willkits in her car some months previously.[19] Inevitably, much was sought to be made of Ms Cyfert's error. On the strengthof it, her evidence was contended to be unreliable, which I was invited to disbelieve.However, Ms Cyfert's evidence strikes me as being inherently believable. Sheimpressed as a dedicated caregiver, wanting to ease Stephen's mounting anxiety overcreation of a will. She said, "I would have written it on a price of paper that day, onanything". She had (and has) no interest in Stephen's estate. Ms Cyfert explained shereferred, almost generically, to "every stationery shop unfortunately" as Whitcoulls:"I just have one shop in my head regarding admin, Whitcoulls, but it was actually notWhitcoulls".[20] I find it probable, in preparing her first and second affidavits, Ms Cyfert hasrecalled her initial conversations with Stephen, her intention to obtain a will kit forStephen as requested "from Whitcoulls", and her subsequent provision of a will kit toStephen, to assume that is what occurred. Only after rediscovering her family's willkits in her car in December 2017 or January 2018, where they had been for "over ayear, a year and a bit" by 10 April 2017, was she able to correct her memory. Herexplanation in response to a question from me illustrates the correction:Q. [A]t the time that [Stephen] was asking you about a will kit, youknew you had will kits in your car, didn't you?A. Oh, subconsciously yes, more than likely. I would have actually goneand bought one. It was the ones I had purchased, I had purchased for usas a family, not for somebody else. There was only enough for us. That'swhy I purchased that amount of will kits. So I would've gone andbought him one at Whitcoulls but when he was persistent and on the10th I decided to write it, I took it from my car.[21] I am reinforced in my view of Ms Cyfert's independence in the proceeding,from her dealings with the will kit after Stephen's death. Ms Cyfert initially advisedonly her employers of her possession of the partially-completed will kit. They toldTerence, and recommended legal advice. Terence's son, Justin, recommended hislawyer, Jon Webb. Terence instructed a solicitor at Jon Webb, and asked Ms Cyfert toprovide the document to that solicitor, which she did. When Ms Cyfert discovered hererror, she again advised the solicitor at Jon Webb – despite, by that time, having twicebeen briefed by Terence's subsequent solicitors, Harkness Henry.—making arrangements with the JP[22] Having earlier made arrangements with Terence for a Justice of the Peace'sattendance on 12 April 2017, Ms Cyfert anticipated the partially completed will kitcould then be formalised before him. The Justice of the Peace, Kenneth Price, sworean affidavit on 13 July 2017 in which he said, on 10 April 2017, Terence had askedhim "to witness some documents for his brother Stephen", for which purpose Terencewould take him to Stephen's house. Mr Price agreed he "could do this on the afternoonof 12 April 2017 at 3pm". In the event, Terence did not turn up on 12 April 2017. On11 May 2017, in asking Mr Price to witness a document for him, Terence told Mr Priceof Stephen's death a month earlier. That document was Terence's 26 April 2017statement, resisting any suggestion he exercised any influence over the making ofStephen's will.[23] Pauline gave evidence she had previously asked Mr Price about hisinvolvement: in particular, "if any arrangement had been made for him to meet withbrother Terry or Elzonia Cyfert" on 12 April 2017. After discussion with Mr Price, shecreated a statement for his signature. The statement – while acknowledging his contactwith Terence to witness Terence's signature, subsequently done – denied priorknowledge of "a brother called Steve", and expressly stated, "[a]t no time was Icontacted by Terry (or [Ms Cyfert]) to witness a will on 12 April. I had no appointmenton 12 April to go to 48 Galway Street". Pauline said Mr Price said he would sign thestatement after her, and "[t]hat is the way it was done". The document was signed byPauline on 25 May 2017, beside which signature Mr Price has added in handwriting"Signed at Hamilton this 25th day of May 2017 before me", and signed also over hisofficial Justice of the Peace stamps.[24] Under cross-examination, Mr Price said "it was very contradictory but it wasn'tme making that statement, it was Pauline that wanted me to sign her signature, witnessher signature". He maintained that to be the position, even while agreeing thestatement was not accurate and appeared to be written as if by him. Mr Price respondedto the question "you've also told His Honour you read it?":I went through it with Pauline at the counter at my shop that day and becauseshe was signing it, she was making this particular statement to whom it mayconcern obviously, I witnessed her signature. Yes.[25] Pauline's solicitor, Mr Booth, provided a second affidavit, sworn 15 November2017. He said he had been approached by "a number of the Respondents" to obtainfurther information about the will kit's preparation. He met with Mr Price, andprepared "a declaration" for Mr Price to sign. The document again affirmed contactbetween Mr Price and Terence, "about 3 to 4 weeks prior" to Stephen's death towitness Terence's signature, which he did "some time after Terry contacted me".6 Thedocument recorded Mr Price knowing Terence "for approximately 30 years", duringwhich he "was not aware that he had a brother called Stephen". The document's lasttwo paragraphs confirmed "at no time was I contacted by [Terence] to witness a willfor his brother Stephen Mills", and he "had no appointment on the 12th of April toattend at 48 Galway Avenue Hamilton to see Stephen Mills". The document was6 This explanation plainly cannot be correct: the document Mr Price witnessed for Terence waswritten after Stephen's death, and in reference to the 10 April 2017 arrangements for Mr Price'sintended attendance on Stephen.signed by Mr Price, and witnessed by Mr Booth as being "declared at Hamilton" on 1June 2017.7[26] Under cross-examination, Mr Price said the document again was "verycontradictory". He said he had only read "the top" of it before signing it while busy athis locksmith shop's counter. He said the last two paragraphs were "wrong".[27] In response to questions from me, Mr Price added it also was not true he hadbeen in touch with Terence three to four weeks before Stephen's death; it was fourdays before, on 10 April 2017. On that day, he said, Terence rang him, to ask him to: witness a document for his brother Stephen who was very ill and he saidhe's making out a will, could I witness it and I said yes I could witness hissignature.Terence made arrangements to pick up Mr Price from his shop at 3pm on 12 April2017. Mr Price next saw Terence when Terence asked him to witness Terence's 24April 2017 statement. Mr Price also confirmed he had not known of Stephen'sexistence until 10 April 2017, despite knowing "members of the Mills family for avery long time".[28] Finally, Mr Price said there was no prior discussion with Mr Booth. He said:I received a phone call from [Mr Booth's] legal secretary, I think she was,asking if Kevin came to see me, could I have a look at a document in relationto the, what what's gone on in the Mills family. I said that's fine, come andsee me.[29] Justices of the Peace have statutory functions and powers, including "to takeoaths and declarations under the provisions of the Oaths and Declarations Act 1957."8A declaration is expressly to affirm the declarant's conscientious belief of the truth ofprior asserted facts.9 Neither Pauline's statement nor Mr Booth's document specifiedanything of the sort on Mr Price's part. Nonetheless, it is highly unsatisfactory for aperson of Mr Price's official standing to treat the execution of documents in as cavalier7 Mr Booth's first affidavit, sworn 20 September 2017, did not refer to the 1 June 2017 document.Mr Booth's second affidavit explains the document was previously "overlooked". He says therespondents' counsel "did not draw it to my attention. That was an oversight on his part".8 Justices of The Peace Act 1957, s 4(a).9 Oaths and Declarations Act 1957, Schedule 1.a manner as he did in signing them. I also find it hard to understand what Mr Pricecomprehended he was doing in 'witnessing' a document he had read and gone throughwith Pauline, clearly making (and, on his account, wrong) statements as if they werefrom him.[30] Neither Ms Cyfert nor Terence can recall if Ms Cyfert told Terence whyStephen wanted a Justice of the Peace – at all, or whether to witness some unspecifieddocuments, or specifically to assist him in preparing his will. At the time of makingthat arrangement, Ms Cyfert anticipated a Justice of the Peace would be takingStephen's instructions on a will kit she was yet to obtain for him. The scope of MrPrice's attendance at the time of its arrangement was then uncertain, at least to MsCyfert.[31] Stephen said nothing to Terence about the partially completed will kit,appointing Terence as sole executor and beneficiary, when Terence was at Stephen'shouse the following day, 11 April 2017. Terence only found out about the partiallycompleted will kit from Ms Cyfert's employer, a week or so after Stephen's death. YetMr Price was definite the arrangement made with Terence on 10 April 2017 was forMr Price to witness Stephen's will on 12 April 2017: "he was going to make a will andcould I witness it, yes".[32] However, one thing is clear – there was no direct contact between Ms Cyfertand Mr Price. Ms Cyfert's expectation of Mr Price's attendance has come from hercommunications with Terence. Whether Mr Price arranged with Terence to attend onStephen on 12 April 2017 and if so for what purpose, after Ms Cyfert provided the willkit to Stephen and acted on his subsequent instructions, she certainly expected thatattendance to formalise her partial completion of it. Under cross-examination, shesaid:I did not take it as a, as a legal thing. That why I never signed it 'cos if I hadsigned it, got the other carer to sign it and Stephen, it was a legal documentbut I did not do that. I wanted a third party to come and do that, not me.—Stephen's testamentary intentions[33] Ms Cyfert was not challenged in cross-examination on her evidence of takingStephen's instructions, writing as he instructed on the will kit form, and reading thatback to him. She said, "this is what he wanted me to write and I wrote it for him".[34] Ms Cyfert explained Stephen's concern about the house at 48 Galway Avenue.She said he constantly said he did not want to sell the house. Stephen's increasingdisability led him to be "fearful of someone telling him he had to go into residentialcare". She said:He wanted his brother Terry to [have power of attorney] 'cos he said they willput him in a home and take his house. He wanted to stay in his house, that'sall this man wanted, to stay at home to die.[35] Stephen called Terence to assist when Stephen fell unattended, concernedcalling an ambulance would lead to him going into care. More space was needed forStephen's mobility and his equipment. Terence was doing building work on the houseto make it more accessible for Stephen and his caregivers as his condition worsened.Terence's regular involvement with Stephen's welfare is affirmed by Ms Cyfert, andseparately by her employer; by Stephen's friends, Craig Phillip Woodhouse and StuartKonui Peters, who met Stephen weekly over a beer since the late 1980s; and by DetroitSluys-Tamanui, a trainee plumber and gasfitter working with Terence. Mr Peters addsStephen could not accept his offer to buy Stephen's motorbike a month before he died,because Stephen said he had transferred ownership of the motorbike to Terence, butTerence had told him to hold onto the papers. That affirms Terence's explanation ofthe circumstances in which the motorbike was to be his, as documented in the will kit.[36] My acceptance of Terence's involvement is not to diminish various familymembers' long-standing financial and personal support for Stephen over many years.Pauline's affidavit sets out the very substantial nature of that support – encompassingmany hours of personal commitment from a number of the siblings, as well as theirfunding various support and welfare requirements – and at least her and Mary'sincreasing concern for Stephen's wellbeing.[37] But my determination of Stephen's testamentary intentions is not to beinformed by any assessment of what might be a 'fairer' distribution of Stephen's estate.Validation of Stephen's will is not contingent on its 'fairness'. Rather it is concernedwith "determining whether what is claimed to be an expression of a will-maker'swishes is genuinely so".10[38] On 22 and 23 February 2017, Pauline and Mary visited Stephen:We noticed the deterioration in Steve and we tried to get Steve into a rest homebecause he had trouble even getting off his scooter on to the couch and we hadto help him. We asked Steve if he wanted to make a will then, and his replywas "I can't be bothered. I don't need a will." "I don't want a will."They obtained increased home help for Stephen and, together with other familymembers, began "exploring arrangements for Steve to be placed in some care facility".[39] It is consistent with Stephen's apprehension of those arrangements he preferredTerence as recipient of his estate. I do not find such preference, or the circumstancesin which it has arisen, suspicious at all.11 To the contrary, those circumstances arecogent evidence, on the balance of probabilities, the partially completed will kitreflected Stephen's testamentary intentions.12[40] Those intentions were dictated by Stephen to Ms Cyfert, recorded by her, andread back to him without his demur. They embody Stephen's desired final distributionof his possessions, compared to what would occur on Stephen's intestacy absent thedocument's validation. Formalisation of those intentions was anticipated within 48hours of the document's creation, regrettably prevented by Stephen's terminalhospitalisation.Result[41] I am satisfied the will kit, partially completed by Ms Cyfert on Stephen'sinstructions, expresses his testamentary intentions.10 Re Beaumont (deceased) [2013] NZHC 2719 at [11].11 Compare circumstances in which the "righteousness of the transaction" must be established toovercome "a high degree of suspicion": Harris v Taylor [2015] NZHC 3190, [2016] NZAR 363at [116]-[117].12 Re Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009 at [11].[42] I declare the original of the document marked "A" annexed to the affidavit ofElzonia Cyfert sworn 3 July 2017 to be Stephen's valid will.Costs[43] In principle, as the successful party, Terence is entitled to his surviving siblings'contribution to his legal expenses in the proceeding.13[44] However, in my preliminary view, the parties should each bear their own costs.That is because Terence required the Court's assistance to obtain validation ofStephen's will, and the factual circumstances of its making gave his surviving siblingssufficient and reasonable grounds to oppose. I do not think the circumstances can besaid to be Stephen's 'fault', such that costs should be ordered paid from the estate.14[45] If that is not accepted by the parties, and they cannot otherwise agree on costs,costs are reserved for determination on short memoranda of no more than five pages– annexing a single-page table setting out any contended allowable steps, timeallocation, and daily recovery rate – to be filed and served on the other by:(a) Terence within ten working days of the date of this judgment;(b) the respondents within five working days of service of Terence'smemorandum; and(c) Terence strictly in reply within five working days of service of therespondents' memorandum.—Jagose J13 HCR 14.2(1)(a).14 Wardill v Pasley (No 2) [2017] NZHC 306 at [4], citing Harris v Taylor [2016] NZHC 483 at [16]-[18], in turn citing Re Paterson (dec'd) [1924] NZLR 441 (SC) at 442.