IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-000865 [2015] NZHC 2422
BETWEEN GEORGINA AMUNDSON, SAMUEL
JOSEPH PIVAC AND JONATHAN CHRISTOPHER RAOS
Applicants
AND
JONATHAN CHRISTOPHER RAOS Respondent
Hearing: 28 September 2015 Appearances:
Brian Stewart and Emily McKibbin for the Applicants
Kevin McDonald for the Respondent
Bill Patterson for the family members in supportJudgment:
5 October 2015
JUDGMENT OF MOORE J
This judgment was delivered by me on 5 October 2015 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
AMUNDSON & ORS v RAOS [2015] NZHC 2422 [5 October 2015]
Introduction
[1] On 21 August 2014 John Joseph McHugh (“Mr McHugh”) instructed his solicitors to prepare a new will. Acting on those instructions a draft was prepared and forwarded to Mr McHugh for his comments. On 30 January 2015 Mr McHugh died suddenly of a heart attack. He was aged 57. He never signed the will or any other will.
[2] This application is brought under s 14 of the Wills Act 2007 (“the Act”). It seeks an order declaring the draft will to be valid.1
[3] Although the parties consent to making the orders set out more fully later in this judgment, s 14 of the Act requires the Court to be satisfied that the document in question expresses the deceased person’s testamentary intentions before it may make an order declaring the document to be a valid will.
Background
[4] Mr McHugh had no children. He is survived by his long term partner, Jonathan Christopher Raos, his mother Kathleen Monica McHugh, five siblings and
16 nieces and nephews.
[5] His estate is considerable with net assets likely to be worth well in excess of
$5,300,000.These comprise the following: (a) cash;
(b) commercial and residential properties in Devonport, Auckland;
(c) a 100 per cent shareholding in McHugh Catering Limited (“McHugh Catering”) which owns the catering and function hire business known as “McHugh’s of Cheltenham”;
(d) two commercial properties in Devonport; and
[6] Mr McHugh instructed his solicitor of long standing, Mr Western, on two occasions to prepare a will. The first was on 13 September 2007. On Mr McHugh’s instructions Mr Western prepared a draft which he sent to Mr McHugh on 20
September 2007. He invited his comments. The document was incomplete because Mr Western did not have instructions as to whether Mr McHugh wished to buried or cremated. His instructions were also incomplete on the question of the disposal of the residue of the estate. The draft was never executed because Mr McHugh did not get back to Mr Western with instructions.
[7] The second occasion was on 21 August 2014. In the course of a telephone conversation in which Mr McHugh discussed the sale of McHugh’s Catering, he told Mr Western he wanted to revise the 2007 draft in the following ways:
(a) making greater provision for Mr Raos; and
(b) making changes to the executors; and
(c) directing he be cremated.
[8] Mr Western took notes of…
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