IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000804 [2014] NZHC 2554

IN THE MATTER	of the estate of PETER RICHARD
WONG	

BETWEEN	
ANDREW JAMES WONG Applicant	

Hearing:	2 October 2014	

Counsel:	
N Penman-Chambers	

Judgment:	
2 October 2014	

JUDGMENT OF ASHER J

Solicitors:
Hesketh Henry, Auckland.

Re Estate of Wong [2014] NZHC 2554 [2 October 2014]

Introduction and preliminary issues

[1]       This is an originating application on notice for orders under s 14 of the Wills Act 2007 (the Act) declaring a document valid as the will of the deceased Peter Richard Wong.  Reliance was placed on r 27.6 of the High Court Rules which applies to applications in solemn form.   An application is also made under s 21 of the Administration Act 1969 appointing the applicant Andrew James Wong as administrator of the deceased’s estate.

[2]       There are some preliminary procedural issues.   The first is the appropriate procedure.  There is no specific provision in the High Court Rules (the Rules) for applications under s 14 of the Act (although this is a matter that is under review by the Rules Committee at present).   However, I agree with the observation of MacKenzie J in Re Campbell that where the application is not contested, the nature of  the  proceeding  is  such  that  the  procedure  under  Part  19  of  the  Rules  is
appropriate.1

[3]       Under r 19.4 a Court may in the interests of justice permit any proceeding not mentioned in those rules to be commenced by originating application.   There is a practice of dealing with these types of applications under Part 19, so I give permission, and treat this as an originating application under that part of the Rules.

[4]       The proceeding was filed in Auckland.  Rule 27.10 provides that applications made under Part 27, which deals with matters involving the administration of an estate and  the  grant of probate,  should be filed in the registry of the Court of Wellington.  However, this application to declare the will valid under s 14 of the Act is not dealt with by Part 27 and instead was made under Part 19.  Therefore r 27.10 does not apply.  Instead the rule for determining the proper registry for filing these
proceedings  is  r  5.1.2      Rule  5.1  provides  that  where  there  is  no  defendant  the
proceedings can be filed in the registry that the applicant selects.   The applicant selected Auckland and so these proceedings were properly filed in Auckland.

1	Re Campbell [2014] NZHC 1632 at [2].
2	High Court Rules, r 19.7(1).

[5]      The second preliminary issue I need to address is the service of these proceedings.   There was an earlier will prior to the document in question being written.  In 2002 Mr Wong had executed a will leaving his assets to his then partner. Although efforts appear to have been made to prepare that as a coherent legal will, there are parts of that will which appear to be contradictory or nonsensical.  In any event, the relationship between Mr Wong and his former partner broke up shortly after the execution of the will.

[6]       The applicant’s solicitors Hesketh Henry have been in touch with the former partner.  He is presently living overseas in Abu Dhabi.  An affidavit of service has shown his written acknowledgement of a proposal to serve him by email, which also can be seen as an acknowledgement of receipt of those documents electronically. The service took place on 7 September 2014.

[7]       I have considered also r 6.1 which sets out certain methods of service which do not include service by email.  However, that rule is not prescriptive and sets out certain methods of service, but not all methods of service.  Under r 6.7 service by a method agreed to in writing by parties is sufficient service on that party.

[8]       In this present electronic age, when a party agrees to electronic service and is so served, and the Court is satisfied that there is an acknowledgement of that service, this can be sufficient service, relying on r 6.7. That is the position here.

[9]       It is also the position in relation to the three surviving relatives of Mr Wong. They also have acknowledged electronic service.  In my view r 6.7 applies to those incidents of service as well, and that has been satisfactory service.  The purpose of service is to ensure that the documents or proceeding are brought to “the personal
knowledge of the person whose concern it is.”3

[10]     It is not surprising that these parties have agreed to service and taken no steps.  The evidence I have before me indicates that Mr Wong did not have ongoing
relations with his former partner or close relations with his siblings.  I might add that

3	Re a Debtor (No 441 of 1938) [1939] 1 Ch 251, [1938] 4 All ER 92 (CA) at 256, 96–97 as cited in Bond Cargo Ltd v Chilcott (1999) 13 PRNZ 629 (HC) at 635.

his siblings appear to have acted very responsibly throughout the unfortunate events surrounding his death.

Should this Court declare the document a valid will?

[11]     It  is  necessary  at  this  point  to  set  out  the  sad  background  behind  this application.

[12]     The document in question is undoubtedly a suicide note.  Mr Wong died by suicide on 17 July 2012.  It seems that there had been adverse developments in his life in the months prior to his death.

[13]     Police officers attending his home found two envelopes on a table in the main bedroom.   One of those envelopes was addressed to Ms Sarah Cook, a friend of Mr Wong.  It contained the document which is in question in this application.

[14]     The note is confirmed by Ms Cook as being in Mr Wong’s handwriting.  It is an unsigned, undated and unwitnessed note.  It therefore fails entirely to comply with the requirements for a valid will set out in s 11 of the Act.

[15]     It is necessary to set out the full contents of the note:

Sarah, I entrust you to act for me.

Please make sure all of the following instructions are done.  This is the last favour I need to ask from you.

-     All of the girls things, beds, food in freezer, dry food and anything else of theirs is given to Jolyn (breeder) 022-1126-0891.   He will already have the girls at this point.  I will tell him that you will contact him for their things.

-	All of my possessions –
divide up 3 ways	-	Sarah
-	Rae
-	Melissa

-	¼ share of family home.

Divide up 4 ways	-	Sarah
-	Rae
-	Melissa
-	Miia & Suzzie

-	Pls make sure I am cremated and my ashes are scattered at Piha with
Erikka’s.

-	Pls make sure there is NO service, simple and NO family members.

-	Pls contact George Howard, 7 Stream Wharf Lane, Woolston, CHC –
027-245-7766.  Give him my letter.

Finally, Sarah, Rae & Melissa thank you for supporting me and making me part of your lives.  I love you all very much.

[16]     The references to “Sarah”, “Rae” and “Melissa” are to three close friends of Mr Wong, namely Ms Cook, Ms Ransfield and Ms Bentey.  They also have all been served with the proceeding.  The reference to Miia and Suzzie is to Mr Wong’s two dogs.  They are also referred to as “the girls”.  The reference to “1/4 share of the family home” is a reference to Mr Wong’s quarter share of the family home which had been sold, that sum being held for Mr Wong in his mother’s solicitor’s trust account.  If this document is a valid will it supercedes the earlier will of 2 May 2002. I should add that the primary beneficiary of the 2002 will was a dog called Erikka.

[17]     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, 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.

[18]     The three requirements under s 14 for a will to be declared valid are that the document must appear to be a will, must nevertheless not comply with s 11, and

must come into existence in or out of New Zealand.  Under s 14(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”.

[19]     There can be no doubt that at the heart of this exercise is a consideration of whether the non-complying document is indeed intended by the deceased to be a statement of that deceased’s testamentary intentions.  Under s 14(3) the Court may consider the document, and evidence of its signing and witnessing, and evidence of the deceased’s testamentary intentions, and evidence of statements made by him.

[20]     There is not a great deal of circumstantial material regarding Mr Wong’s intentions.  An affidavit of Ms Cook shows that he was a relatively solitary man, but one who did have good friendships.  He lived alone and was clearly a dog lover.

[21]   In considering whether the document expresses the deceased person’s testamentary intentions the matters listed in subs (3) are not exhaustive.  There are no particular rules dictating the circumstances that apply.   Professor Peart in an article written before the Act came into force observed:4

The test in s 14 is not an objective one.   It is specific to the particular deceased person. No two cases are necessarily the same.   The wills may suffer from the same defects, but in the one case the Court may conclude that the document does express the deceased’s testamentary intentions, whereas in the other it does not.  The Court must be satisfied to the ordinary civil standard of proof that the evidence as a whole, including any evidence of the will-maker’s   statements   and   testamentary   intentions,   shows   that   the document expresses the deceased’s testamentary intentions.

(references omitted)

[22]     Caution must be exercised when considering Australian decisions, as their equivalent of s 14 has different words.

[23]     MacKenzie J in Re Campbell observed in July 2014 that there had been approximately 80 applications under s 14 since the Act came into force.5   In all but

4	Nicola Peart “Where There is a Will, There is a Way – A New Wills Act for New Zealand”
(2007) 15 Waikato Law Review 26 at 35.
5	Re Campbell, above n 1, at [17].

four cases the document concerned had been declared valid.  In only two cases had an application been refused. He noted, and I respectfully agree:6

The preponderance of successful applications does however indicate that the evidential burden on a s 14 applicant is not subject to a high threshold.

[24]     The great benefit of the reform in s 14 is that it takes the eye of the Court away from form and makes it focus on substance and intention.  A person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities.  The Court should give effect to the intention of the person who purported to make a will.  However, it must be clear on the balance of probabilities that the document is intended to express the deceased person’s testamentary intentions.

[25]     There have been a number of cases where informal suicide notes have been held to be wills under s 14.7

[26]     Section 8 sets out the meaning of “will”.  The document must appear to be a “will”, but that does not mean it has to be called a will or follow the form of a will. Section 8(1) provides:

8	Meaning of will

(1)   Will means a document that—

(a)   is made by a natural person; and

(b)   does any or all of the following:

(i)   disposes of property to which the person is entitled when he or she dies; or

(ii) disposes of property to which the person's personal representative  becomes  entitled  as  personal  representative after the person's death; or

(iii) appoints a testamentary guardian.

[27]     In this case the document was made out by an actual person, Mr Wong.  It disposes of property to which he accurately considered he was entitled.  Clearly it is

6	At [17].
7	Re MacNeil (2009) 10 NZCPR 770 (HC); H v P [2012] NZHC 753; Re Estate of Wells [2012] NZHC 74.

intended to dispose of that property following his intended death by suicide.   It therefore has the crucial features set out in s 8(1)(b) of a will in that it is intended to dispose of his property after his death.

[28]     Further, Mr Wong does appear to dispose of it to a personal representative. Although the words are informal it seems clear that he intends Ms Cook to act as an executor and administer the estate by disposing of the property according to the will.8

[29]     The disposition of part of his estate to his two dogs is likely to be invalid, but I do not need to rule on that in this decision.  If that is so there is likely to be a partial intestacy in relation to that aspect of the estate.  However, in all other respects the dispositions are intelligible and can be implemented.

[30]     I am satisfied that the gateway provisions of s 14(1) are satisfied, and that the document expresses Mr Wong’s testamentary intentions.  I therefore propose making an order declaring the will valid as the last will of Mr Wong.

Application to appoint applicant administrator of the deceased’s estate

[31]     Ms Cook does not wish to be the executor of the will.  Her reasons are strong and personal, and have been accepted by the Mr Wong’s siblings.  Section 21(1) of the Administration Act 1969 provides:

21	Discharge or removal of administrator

(1)   Where an administrator is absent from New Zealand for 12 months without leaving a lawful attorney, or desires to be discharged from the office of administrator, or becomes incapable of acting as administrator or unfit to so act, or where it becomes expedient to discharge or remove an   administrator,   the   Court    may   discharge   or   remove   that administrator, and may if it thinks fit appoint any person to be administrator in his place, on such terms and conditions in all respects as the Court thinks fit.

(emphasis added)

[32]     Ms Cook desires to be discharged from her office.   It is accepted in the circumstances administrator includes an executor.   Because I am satisfied it is the

8	Section 6 of the Wills Act 2007 defines “personal representative” as including an executor.

best thing to do in the interests of the beneficiaries, I discharge her as the executor of Mr Wong’s estate.   In her place I appoint Andrew James Wong, the deceased’s brother.  Although he has little to gain he appears to have responsibly taken on the burden of administering this estate.

Result

[33]     There is an order declaring the handwritten document referred to in [16]

above, as the last will of the deceased Peter Richard Wong.

[34]     There is an order discharging Sarah Cook as administrator of the estate of Peter Richard Wong and appointing Andrew James Wong of Auckland, financial controller, in her place.

[35]     The costs of this application are to be borne by the estate.

……………………………..

Asher J