Badraun (deceased)

[2014] NZHC 560

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-129 [2014] NZHC 560

In the Estate of                  CATHERINE MARY BADRAUN (DECEASED)

Hearing:	On the papers
Counsel:	A Bali
Judgment:	25 March 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

11 am on the 25th day of March 2014.

Solicitors:           Gibson Sheat, Lower Hutt

Re Badraun (deceased) [2014] NZHC 560 [25 March 2014]

[1]      This is an application under s 14 of the Wills Act 2007 for an order declaring a document valid as the last will of the deceased.

[2]      I first address the form of the proceeding.  The application has been filed as an interlocutory application without notice.  There is no prescribed procedure for the making of such applications.   I consider that the appropriate procedure is an originating application under pt 19 of the High Court Rules.  That is an expedient procedure for cases where there is no opposing party.1    I give permission under r 19.5(1) for the proceeding to be commenced by originating application.  I treat the application filed as the originating application.

[3]      The first question which I must address under r 7.46 (which applies by virtue of r 19.10) is whether the application can properly be dealt with without notice.  The principal concern of the Court on an application such as this is to ensure that all persons who will be affected by the making of an order have a proper opportunity to be heard, or for their consent to be obtained.   In this case, if the document is not declared  valid,  the  deceased  will  be  intestate.    Enquiries  have  been  made  by Mr Robinson in the usual way as to whether any other lawyer holds a will for the deceased  and those enquiries have not discovered any other will.   The persons affected by the making of the order will therefore be those persons who would succeed  on  an  intestacy.    The  deceased  had  previously  been  married,  but  that marriage was dissolved in 2004.  She is survived by two children, aged 17 and 18. In those circumstances under s 77 of the Administration Act 1969, all of the estate would be held on the statutory trusts for the children.  Both children have indicated that they support the application.  Their father, as their guardian, has also consented on their behalf.  I consider that undue delay and expense would be incurred if formal steps were required to appoint a litigation guardian for the younger child.  The usual enquiries have been made as to the existence of any other person who might claim an interest in the estate by reason of the Status of Children Act 1969 and there are no such persons.  In these circumstances, I consider that the interests of justice require the application to be determined without serving notice of the application, under

r 7.46(3)(e).

1      Jones v H W Broe Ltd (1989) 5 PRNZ 206 (HC), at 207; CIR v McIlraith (2003) 21 NZTC

18,112 (HC).

[4]      I  turn  to  the  substantive  issues  involved  in  the  s 14  application.    The circumstances as they are disclosed in the affidavit of Mr Robinson, the deceased’s solicitor, are that the deceased had been Mr Robinson’s client from 2001 until her death on about 12 October 2013.  She had contacted Mr Robinson in late 2012 when she was diagnosed as terminally ill.  He advised her to make a will.  By email dated

1 February 2013, the deceased gave clear instructions for her will.   Mr Robinson drafted a will according to the instructions and emailed a draft to the deceased on

20 February 2013.    The  deceased  replied  on  9 April 2013  advising  that  she  had discussed  the draft  with the proposed  executors  and  did  not wish to make any changes to the draft.  She informed Mr Robinson that she wished to sign the will, and   enduring   powers   of   attorney   which   Mr Robinson   had   also   prepared. Arrangements were made for the deceased to obtain independent legal advice on the enduring powers of attorney and those were signed in about mid September 2013. Mr Robinson  finalised  the  draft  will,  which  was  checked  and  approved  by  the deceased, and ready for her to sign.  Attempts were made to have the will signed prior to  the deceased’s  death  but  her health  condition  took  priority as  she was undergoing medical treatment and was on strong medication.   She died before the will could be signed.

[5]     I am satisfied that the document represents the deceased’s testamentary intentions.  Her instructions were clear, and the document sought to be declared valid reflects  those  clear  instructions.    Mr Robinson’s  evidence  satisfies  me  that  her intentions remained unchanged, and that the reason the will was not signed did not reflect any change of heart, but resulted solely from the deceased’s state of health.

[6]      There will be an order under s 14 of the Wills Act 2007 declaring valid as the last will of the deceased the original of the draft will attached to the affidavit of Mr Robinson, sworn on 23 December 2013 as exhibit D.

[7]      The file is to be returned to the Registrar for consideration of the application for probate of that will.

“A D MacKenzie J”