Rattray v Palestine Children's Relief Fund

[2018] NZHC 466

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-448

[2018] NZHC 466

UNDER

the Wills Act 2007

IN THE MATTER OF

the estate of James Quinwallace

BETWEEN

ROSEMARY RAE RATTRAY

Plaintiff

AND

PALESTINE CHILDREN’S RELIEF FUND

Respondent

Hearing:

On the papers

Appearances:

J M Stringer for the Plaintiff

No appearance by or for the Respondent

Judgment:

20 March 2018

JUDGMENT OF MANDER J

[1]                   The applicant, Ms Rosemary Rattray, seeks an order under the Wills Act 2007 (the Act) that a document signed by the deceased, Mr James Quinwallace, be validated as his will.1 Ms Rattray is named in the document as the executor and trustee of the will.

Background

[2]                   Mr Quinwallace was originally from Ireland, and throughout his life spent time in Australia and more latterly in New Zealand where he became a citizen. His routine over the years was to spend summers in New Zealand and winters in Australia.

1      Wills Act 2007, s 14.

RATTRAY v PALESTINE CHILDREN’S RELIEF FUND [2018] NZHC 466 [20 March 2018]

[3]                   Mr  Quinwallace  and  Ms  Rattray  were  old  family  friends,  and  when   Mr Quinwallace was in New Zealand he would stay at her residence in Christchurch. One such occasion was in early 2012 when Mr Quinwallace stayed for a number of weeks. He was unwell at the time and decided to make a new will before he returned to Australia. Mr Quinwallace asked Ms Rattray to assist him in preparing his will. She did this by using a template provided by the Public Trust.

[4]                   After the document was completed, Mr Quinwallace took it to a Justice of the Peace, a Mr Faitotonu, whom Ms Rattray knew, and lived in her street. On 4 May 2012, Mr Quinwallace attended on Mr Faitotonu and the document was signed and witnessed in a manner that they appear to have believed was sufficient to constitute a valid will.

[5]                   In early January 2017, Mr Quinwallace came to stay with Ms Rattray. He intended to remain at her home until he finished his latest writing before returning to Australia in April of that year. Unfortunately, on 6 March 2017, he unexpectedly died at Ms Rattray’s residence. Because of his sudden death, it was referred to the Coroner. However, a formal inquiry was never opened because the medical evidence indicated that Mr Quinwallace had died from natural causes.

[6]                   The document purporting to be Mr Quinwallace’s will is signed by him. However, the only witness to Mr Quinwallace’s signature is Mr Faitotonu, nor has Mr Quinwallace initialled the first page of the will.

[7]                   Mr Quinwallace is survived by his daughter, Ms Annette Lorraine Barnett, who was born in Ireland in 1967 and conceived during Mr Quinwallace’s marriage to his ex-spouse.  This marriage was dissolved in 1971.  Ms Rattray deposed that  both   Ms Barnett and Mr Quinwallace’s ex-spouse still live in Ireland, and, at the time of his death, Mr Quinwallace was estranged from his daughter. He had not spoken to her in many years. Ms Rattray understood the last time Mr Quinwallace had seen Ms Barnett was in Australia in approximately 2003. It was understood that Ms Barnett had two children, Mr Quinwallace’s grandchildren, but because of the estranged relationship between father and daughter, Mr Quinwallace had no contact with them.

Inquiries

[8]                   Ms Barnett was notified of the application. She communicated with the Court in the interlocutory stages of this proceeding and instructed New Zealand counsel to make some further inquiries regarding matters relevant to the application. A memorandum was subsequently filed by Ms Barnett’s counsel formally advising that she has agreed not to take any steps to oppose the application and will abide the Court’s decision.

[9]                   Inquiries were also attempted regarding the possible existence of another child who could potentially be an interested party. However, the available information was very limited. During the period 1967-69, Mr Quinwallace lived in Fort Nelson, Canada. It was understood that he may have had a relationship with an unknown woman who became pregnant and may have had a child to Mr Quinwallace. The gender, age and name of the child or that of the mother are unknown.

[10]               Counsel for the applicant attempted to make inquiries with Library & Archives Canada and the Adoption Council of Canada on the basis Mr Quinwallace may have been registered on the child’s birth certificate. However, there has proved to be insufficient information to progress such inquiries. No one connected with Mr Quinwallace has any details regarding the identity of the child’s mother or is able to provide any information regarding the existence of the child. No correspondence, photographs, documents, or other detail is available that might allow inquiries to be made of authorities in Canada.

[11]               The obligations of trustees of an estate to locate possible claimants and/or interested parties to estate proceedings does not require all possible interested parties to be identified. Regard must be had to the cost and difficulty of such an objective. There is no general duty for the administrator of an estate to inform potential claimants of death, nor to notify potential claimants of a right to bring a claim, particularly where that would cause unnecessary delay and expense.2

2      Re Lane [2017] NZHC 3144; Sadler v Public Trust [2009] NZCA 364, [2009] NZFLR 937; Public Trust v Public Trust (2009) FRNZ 554.

[12]               In the present case, there is a possibility that Mr Quinwallace may have had a child born in Canada but there is no realistic basis by which that child can be identified or located. Efforts have been made to establish what processes are available to undertake inquiries. However, there is realistically insufficient available information to initiate such a process, and regard must be had to the further cost to the modest estate valued by its solicitors at $133,738.60.

The formal requirements

[13]               The formal requirements of a will are set out at s 11 of the Act. It is noted the document in question was signed and witnessed, but only by one person. Notwithstanding non-compliance with s 11, this Court may make an order declaring a document to be a valid will. Section 14 of the Act provides as follows:

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.

Analysis

[14]               The first requirement is that the document appear to be a will. In Re Estate of Campbell, MacKenzie J noted that the requirement that a document must appear to be

a will is concerned with its content and what it conveys, rather than its form.3 That inquiry involves whether the document contains any or all of the elements described in s 8(1)(b) of the Act, namely whether it seeks to dispose of the property of a person upon his or her death. The document that Mr Quinwallace signed in the presence of the Justice of the Peace clearly is to that effect.

[15]               The second and third requirements of s 14(1) are established. The document sought to be validated does not comply with  s  11  and  came  into  existence  in New Zealand.

[16]               The essential element before a non-complying document can be validated as a will is that the Court must be satisfied it expresses the deceased person’s testamentary intentions.4 The evidential burden required to satisfy that requirement is not subject to a high threshold. Where there is evidence of the deceased’s testamentary intent, it is better to give effect to that intent in preference to giving effect to any previous will.5

[17]The approach to be taken to the exercise was summarised by Davidson J, in

Kirner v Falloon, who stated:6

[22] It appears from a review of the authorities that a robust approach to  such applications has been taken. While the s 14 power is both broad and remedial in purpose, the adoption of a robust approach still requires this Court to carefully consider whether the evidence put before it, considered in aggregate, is such that it can be satisfied that the document put before it, said to be a Will, does actually reflect the testamentary intentions of the deceased.

[18]               In the present case, Mr Quinwallace in early 2012 specifically requested the assistance of Ms Rattray to help him prepare his will. She was able to assist him by providing a template document sourced from the Public Trust which she herself had used to make her own will. Mr Quinwallace specifically visited a Justice of the Peace in the belief that by executing the document in his presence the formal requirements would be met.

3      Re Estate of Campbell [2014] NZHC 1632 at [11].

4      Wills Act 2007, s 14(2).

5      Re Estate of Campbell, above n 3, at [18].

6      Kirner v Falloon [2015] NZHC 1873.

[19]               The will itself purports to dispose of Mr Quinwallace’s estate. It commences with Mr Quinwallace cancelling his earlier wills and states that he appoints Ms Rattray to be the executor and trustee. Arrangements regarding his funeral are then set out, as are orthodox instructions regarding the administration of his estate. The residue of the estate is equally simple and clear. It provides for a bequest of AU$5,000 to Ms Rattray, with the remainder of his estate to be disbursed to the Palestine Children’s Relief Fund. In the event that charitable beneficiary ceases to exist, provision was made for this share of his estate to be distributed to Save the Children International.

[20]               Inquiries made by the applicant’s solicitors confirm that the Palestine Children’s Relief Fund is still in existence.  Ms Rattray deposed that over the last   10 years Mr Quinwallace had said to her that he intends to leave his estate to charity and that he was particularly concerned about the plight of children caught up in overseas conflicts. The bequest accords with those stated intentions.

Decision

[21]               I am satisfied the requirements of s 14(1) of the Act are met and, importantly, that the document signed by Mr Quinwallace on 4 May 2012 reflects his testamentary intentions, as articulated to Ms Rattray both before and after its making. Accordingly, there will be an order declaring the document valid as Mr Quinwallace’s will notwithstanding non-compliance with s 11 of the Act. I further direct that the costs of and incidental to the proceeding be met by Mr Quinwallace’s estate.

Solicitors:

Saunders Robinson Brown, Christchurch