Swify v Rogers
| Jurisdiction | New Zealand |
| Judge | Van Bohemen J |
| Judgment Date | 31 October 2022 |
| Neutral Citation | [2022] NZHC 2543 |
| Docket Number | CIV 2021-463-000070 |
| Court | High Court |
UNDER The Wills Act 2007, Section 24
IN THE MATTER OF The Estate of MATTHEW JOHN MITCHELL
and
[2022] NZHC 2543
Van Bohemen J
CIV 2021-463-000070
IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
ITE KOTIMATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
Wills — application for an order that a handwritten, undated and unsigned document be declared a valid will — effect of passage of time — testamentary intentions — Wills Act 2007
A C O'Donovan for the Applicant
J D Peacock for the First Respondents
K J Jarvis for the Second Respondent
The applicant, Lucy Swift, seeks an order pursuant to s 14 of the Wills Act 2007 that an undated and unwitnessed document be declared a valid will of Matthew John Mitchell, who died at Dunedin on 20 December 2020.
Ms Swift is Mr Mitchell's only sibling.
The application is opposed by the first respondents, Anna Jane Rogers and Nicole Susan Rogers, who are the twin daughters of Mr Mitchell.
The application is supported by the second respondent, Sandra Mary Maxwell, who was Mr Mitchell's de-facto partner at the time he died.
Ms Swift, Ms Maxwell and Anna and Nicole have each sworn affidavits in support of their positions.
In accordance with orders made by Moore J on 14 June 2022, counsel for Ms Swift and for Anna and Nicole filed submissions and relevant authorities. No submissions were filed on behalf of Ms Maxwell.
The file was referred to me for a decision on the papers.
Mr Mitchell was born on 22 November 1974.
When he was 19 years old, Mr Mitchell was paralysed following a car accident.
Anna and Nicole were born on 12 October 1999. The name of their mother and her relationship to Mr Mitchell are not in evidence. However, according to their affidavits, Anna and Nicole's contact with their father ended when they were eight. 1
Anna and Nicole say Mr Mitchell subjected them to physical, emotional and sexual abuse from an early age until their contact with him ended. Ms Swift says she was aware allegations were made that Mr Mitchell had subjected Anna and Nicole to physical and sexual abuse and that an investigation was undertaken by the Police. No charges were laid.
There was no contact between Mr Mitchell and his daughters after they turned eight. Ms Swift says she and her parents attempted to maintain contact with Anna and Nicole. These efforts were not welcomed by Anna and Nicole's mother, so were not pursued.
About seven years before he died, Mr Mitchell began a de facto relationship with Ms Maxwell.
On 12 December 2020, Mr Mitchell suffered a severe head injury while in his motorised wheelchair. He was put on life support. The advice from the doctors was that the damage to Mr Mitchell's brain was irreversible and he would not regain consciousness.
Ms Swift arranged for Anna and Nicole to be informed of their father's situation. They did not wish to have anything to do with him.
On 20 December 2020, Mr Mitchell was taken off life support. He died a short time later.
On 18 December 2020, Ms Swift, Ms Swift's husband and Ms Maxwell went to Mr Mitchell's house and searched through his belongings in an effort to find anything indicating his wishes upon death. At Ms Maxwell's suggestion, Ms Swift looked into a drawer in Mr Mitchell's bedroom. Ms Maxwell describes the drawer as Mr Mitchell's “keepsake drawer”. She says she knew that if Mr Mitchell had written a will it would be in the drawer.
In the drawer, Ms Swift found an envelope.
On the front of the envelope was written in handwriting:
last will and
testament
Matthew John Mitchell
On the back of the envelope was written in handwriting:
To be opened
in the presence
of Anna jane, Nicole susan Mitchell
Witness by Lucy Barbara Mitchell Foster
Inside the envelope was a handwritten document (the Document) on which was written:
Matthew John Mitchell 22/11/64
Hereby declare this to be my last will and testament. All my assets and belongings to be left in Trust for Anna jane & Nicole Susan Mitchell until the age of 20 yrs I declare Lucy Barbara Mitchell Foster to be sole charge of these affair. If anything should occur resulting in the death of both parents she is to be the sole caregiver and guardian without contest.
(signed) Matthew Mitchell
The Document is annexed as Exhibit A to Ms Swift's affidavit sworn on 16 August 2021.
Ms Swift says she is Lucy Barbara Mitchell Foster but has used the surname Swift since she married in September 2017. Ms Swift did not open the envelope in the presence of Anna and Nicole because of their estrangement from their father.
Ms Swift says the handwriting on the envelope and on the Document is that of Mr Mitchell and is familiar to her. She also says the signature is that of Mr Mitchell and is familiar to her.
Ms Maxwell says the handwriting on the Document is that of Mr Mitchell and she has seen many other handwritten documents of Mr Mitchell throughout their relationship.
Ms Swift and Ms Maxwell both say they had conversations with Mr Mitchell about his intentions. Ms Swift says Mr Mitchell's wishes were clear: he wanted his estate to be divided between his daughters. She says her last conversation with Mr Mitchell about his estate was approximately five years ago.
Ms Maxwell says Mr Mitchell told her he wanted to look after his daughters after he died. She considers the Document fairly represents Mr Mitchell's wishes and intentions.
Ms Swift made enquiries and searches for an earlier or later will by Mr Mitchell. A will notice was placed with the New Zealand Law Society. No will was found.
Through their respective lawyers, Ms Swift provided Anna with a copy of the Document and informed her that Ms Swift would be applying to validate it as a will.
Anna did not consent to that application and advised of her intention to apply for letters of administration on intestacy. Anna has maintained that position after being informed of the existence of Ms Maxwell. 2
Ms Swift says Mr Mitchell's wishes were that the entirety of his estate should be distributed to his children and she wishes to honour those wishes. Ms Swift wants it to be on the public record that Ms Mitchell's children received his estate because of his testamentary wishes and not by operation of the law of intestacy.
Ms Swift provides evidence of the inquiries she has made as to the existence of a parent or child of Mr Mitchell in addition to Anna and Nicole, including inquiries in accordance with s 5A(2) of the Status of Children Act 1969.
Ms Swift swears that, apart from Anna and Nicole, Mr Mitchell was not survived by any other child born to Mr Mitchell or adopted by Mr Mitchell or in respect of whom Mr Mitchell has admitted paternity or in respect of whom Mr Mitchell has been adjudged to be the father.
Ms Swift says Mr Mitchell's assets comprise his family home and a neighbouring section in McAndrew Bay, Dunedin, bank accounts and a life insurance. Both the home and the neighbouring section are subject to a mortgage. Ms Swift says that to the best of her knowledge, the gross value of Mr Mitchell's estate does not exceed $868,000.00.
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.
Section 11 sets out the requirements for a will to be valid. These include that the document was signed by the will-maker and witnessed in the manner required by that section.
Section 14 gives the Court the power to declare valid a document that does not comply with s 11:
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(a) Under s 14(1), the section applies to a document that appears to be a will, does not comply with s 11, and was made in or out of New Zealand.
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(b) Under s 14(2), the Court may make an order declaring the document valid if is satisfied the document expresses the deceased person's testamentary intentions.
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(c) Under s 14(3), the Court may consider the document, 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 person.
The approach to the application of s 14 has been set out by McKenzie J in Re Beaumont 3 and in Re Campbell. 4 In summary:
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(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;
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(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;
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(c) The evidence that may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant consideration;
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(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
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(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.
The approach in Re Beaumont and in Re...
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