The High Court accepted her video recording as valid expression of a 57 year old’s testamentary intentions with a written transcript of the video to be admitted to probate as her will.
Four months before her death in January 2023, Gaylene Harvey spoke to camera stating her wishes that ‘I want my assets distributed amongst the family and I don’t wish for anything to be left to Maitland.’
Maitland Candy was Gaylene’s de facto partner. By time of her death, it was disputed whether the two were still in a relationship.
The High Court was told that Gaylene made the informal recording at a time when she was seriously ill with complications from ongoing alcohol addiction.
She died owning a substantial estate: $1.3 million represented by a property in Whitianga and cash held by a firm of solicitors plus an unstated amount that was agreed her mother owed for improvements to her home paid for by Gaylene.
Seeking a High Court ruling on the validity of the video recording, immediate family were challenged by Mr Candy. He no longer had capacity to make decisions; his case was put forward by a litigation guardian acting on his behalf.
He potentially stood to receive from her estate a flat sum of $150,000 plus two-thirds of the balance should the video be ruled invalid and intestacy rules in the Administration Act instead apply.
Justice Becroft ruled the video transcript was a valid will. It was analogous to written notes taken by a lawyer at a meeting with a client, notes to be formally drafted as a will where no will was subsequently signed because of the client’s premature death.
The video showed Gaylene relaxed, clear in what she was saying and happily participating, Justice Becroft said.
The transcript evidenced a clear and certain intent, he ruled. It dealt with all her assets; a bald reference to these assets being ‘distributed’ was interpreted as assets being divided equally; and naming ‘the family’ as beneficiaries meant immediate family.
Evidence was given that Gaylene had no children, but was close to her eight siblings and her mother. Justice Becroft ruled they would count as ‘immediate family’ in the context of her pakeha culture. A wider interpretation might arise in the context of a Maori or Pasifika family, he said.
Potentially unresolved are claims that may still be made against her estate by Mr Candy; a relationship property claim, and/or a Family Protection Act claim.
re Estate Gaylene Margaret Harvey – High Court (3.05.24)
24.114