Amundson v Raos - [2015] NZHC 2422

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 support

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amundson v Raos

Details

AGLC: Amundson v Raos [2015] NZHC 2422
Case: [2015] NZHC 2422
Decision Date: 5 October 2015

CaseChat Overview and Summary

Georgina Amundson, Samuel Joseph Pivac, and Jonathan Christopher Raos brought an application under section 14 of the Wills Act 2007, seeking a declaration that a draft will was the valid will of the late John Joseph McHugh. The applicants contended that the draft will accurately reflected Mr McHugh's testamentary intentions. Mr McHugh had not signed the draft will before his death, but the applicants argued that the delay in signing did not indicate a change of mind. They submitted that Mr McHugh was typically slow in signing documents, was highly stressed and busy, and considered the draft will was in place despite being unsigned. The Court was satisfied that the draft will expressed Mr McHugh's testamentary intentions. The Court noted that Mr McHugh had provided clear instructions to his solicitor, Mr Western, and the draft will accurately reflected those instructions. The delay in signing the draft will could be explained by the various stressors in Mr McHugh's life, and there was no evidence that he had changed his mind regarding the contents of the draft will. The Court also considered that the draft will was consistent with an agreement between Mr McHugh and Mr Raos, and with an arrangement with Mr McHugh's parents. The Court granted the application and declared the draft will to be the valid will of Mr McHugh. The Court also granted an order directing the grant of probate to the executors and approved a variation in the settlement on behalf of minor beneficiaries.

Orders