Estate of Moorcock

[2023] NZHC 388

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-000608

[2023] NZHC 388

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER OF

an application by REX WILLIAM BURKIN for an order that a document be declared a valid will of the deceased ROBERT IAN MOORCOCK

BETWEEN

REX WILLIAM BURKIN

Applicant

AND

Defendant

Hearing:	On the papers
Counsel:	B R Oliver for Applicant
Judgment:	3 March 2023

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 3 March 2023, at 11:00 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

Solicitors:

DAC Legal Limited, Waipukurau

RE ESTATE OF ROBERT IAN MOORCOCK [2023] NZHC 388 [3 March 2023]

[1]                 Rex William Burkin has applied for an order pursuant to s 14 of the Wills Act 2007 that an undated and unwitnessed document (the Document) be declared a valid will of Robert Ian Moorcock, who died at Hastings on October 2021.

[2]                 In the  Document,  Mr  Burkin  is  appointed  as  executor  and  trustee  of  Mr Moorcock’s estate. Mr Burkin was a cousin of Mr Moorcock.

[3]                 In his affidavit sworn in support of the application, Mr Burkin says the Document  was  included  in  documents  delivered  to  the  estate’s  solicitors  by  Mr Moorcock’s recent partner, Kathleen Shirley Kearton. Ms Kearton has sworn an affidavit confirming this to be the case.

[4]                 The Document is in the form of a will and has been prepared by DAC Legal, Solicitors, Waipukurau.

[5]                 Under the Document, including by handwritten annotations, Mr Moorcock gives:

(a)$10,000.00 to his daughter, Kerry Ann Winter (Kerry);

(b)$5,000.00 to his son, Raymond Walter Moorcock (Raymond);

(c)The residue of his property to his daughter, Tina Sheree Moorcock (Tina), after its sale and conversion into money and settlement of all debts by his trustees.

[6]                 Mr Moorcock recorded in the Document that he consciously did not make equal provision for Raymond because Raymond chose to dissociate himself from  Mr Moorcock.

[7]                 Mr Burkin says that  to  the  best  of  his  knowledge,  the  gross  value  of  Mr Moorcock’s estate does not exceed $600,000.00.

[8]                 Bridie Susan Tippett, Director of DAC Legal 2019 Limited, has sworn an affidavit stating that in May 2019 she had been instructed by Mr Moorcock to prepare

a draft will and had sent him a draft and follow up emails reminding Mr Moorcock of the need to finalise the will. Those emails included reference to Mr Moorcock’s then intention not to leave anything to Raymond.

[9]                 Mr Burkin  says  Raymond  distanced  himself  from  Mr  Moorcock  after  Mr Moorcock separated from the mother of Tina and Raymond. Mr Burkin also says Mr Moorcock made it clear to him that he wanted to ensure his estate looked after Tina and her two sons, with whom Mr Moorcock shared a close relationship. Mr Burkin says the Document reflects those intentions.

[10]             Ms Kearton says that she was in a relationship with Mr Moorcock from October 2019 until his death, that Mr Moorcock discussed his wishes with her and that they were that Tina should receive the bulk of his estate upon his death. Ms Kearton also says that Mr Moorcock had mentioned the draft will to her and had become more focused on it after he suffered a medical event in August 2021. He had made handwritten annotations on the draft will. Ms Kearton said Mr Moorcock had intended to get his affairs in order but that Mr Moorcock died before he could confirm his wishes with his lawyer.

[11]             Mr Moorcock is not survived by a de facto partner who would inherit on intestacy and has no children other than Kerry, Raymond and Tina. Mr Burkin has taken the usual steps to verify the last point.

[12]             If the Document is not declared a valid will, Mr Moorcock’s estate will likely be dealt with in accordance with a will dated 27 June 2017, which  was  signed by Mr Moorcock  and  witnessed  in  accordance  with  the  Wills  Act.  In  that  will,  Mr Moorcock made gifts, including a life interest in his house, to his then partner, Deborah Marie Wake (Deborah), and gave the residue of his estate to be shared equally between Kerry, Raymond and Tina.

[13]             Deborah, Kerry and Tina have given their written consent to an order being made declaring the Document to be a will.

[14]Raymond has refused to give his consent.

[15]             Raymond has not responded to the application despite acknowledging service on 7 February 2023 of a minute dated 1 February 2023 by Isac J directing that any beneficiary who wished to oppose the application must file an opposition in supporting evidence within 10 working days of service of the Minute.

The Wills Act 2007

[16]             Section 8(1) of the Wills Act 2007 sets out the meaning of a will. It includes a document made by a natural person which disposes of property to which the person is entitled when he or she dies.

[17]             Section 11 sets out the requirements for a valid will. These include that it must be in writing, signed by the will-maker and witnessed in the manner required by       s 11(4).

[18]             Under s 14, the Court may declare a document that does not comply with s 11 to be a valid will if it is satisfied the document expresses the deceased person’s testamentary intentions. Section 14(3) provides that in considering whether to exercise its power under s 14(2), the Court may consider the document itself, evidence on the signing and witnessing of the document, evidence on the deceased person’s testamentary intentions and evidence of statements made by the deceased.

[19]The approach to the application of s 14 was set out by McKenzie J in

Re Beaumont1 and in Re Campbell.2 In summary:

(a)great care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so;

(b)under s 14(2), the inquiry is focussed on the will-maker’s intentions, rather than the formal steps taken to implement those intentions;

(c)the evidence that may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons

1      Re Beaumont (deceased) [2013] NZHC 2719 at [11].

2      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15] – [22].

why the document was not properly signed and witnessed, and any other relevant consideration;

(d)where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect in preference to intestacy; and

(e)there must be cogent evidence that the document reflects the deceased person’s testamentary intentions but the standard of proof to be applied is the ordinary civil standard; that is, the balance of probabilities.

Analysis

[20]             The Document says it is a will, has the appearance of a will and uses language appropriate to a will. It does not comply with s 11 because it is not witnessed and signed.

[21]             Accordingly, the gateway requirements of s 14(1), as so described by McKenzie J in Re Campbell,3 are satisfied.

[22]             I am also satisfied from the affidavits of Mr Burkin, Ms Kearton and Ms Tippett that the Document expresses Mr Moorcock’s testamentary intentions, which include that the bulk of his estate should go to Tina. I am reinforced in that conclusion by the fact that Deborah and Kerry, who would inherit more if the Document were not declared to be a will, consent to an order declaring the Document to be a valid will.

Result and order on application to declare document valid

[23]             I grant Mr Burkin’s application and make an order declaring the document annexed as Exhibit B to Mr Burkin’s affidavit sworn on 7 September 2022 to be a valid will of Robert Ian Moorcock.

G J van Bohemen J

3      Re Campbell (deceased), above n 2, at [14].