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…

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.

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Details

Case: [2014] NZHC 560
Decision Date: 25 March 2014

CaseChat Overview and Summary

This case pertains to an application under section 14 of the Wills Act 2007 for an order declaring a document valid as the last will of the deceased, Catherine Mary Badraun. The deceased, who had been terminally ill, had given instructions to her solicitor, Mr Robinson, for her will in February 2013. Mr Robinson drafted the will according to the deceased's instructions, and after discussions with the proposed executors, the deceased approved the draft and wished to sign it. However, due to her deteriorating health, she passed away before she could sign the will.

The court was required to decide whether the application could be dealt with without notice, and if the document in question was the valid last will of the deceased. The court considered the deceased's children, who supported the application, and their father, who consented on their behalf. The court also found that there were no other parties with an interest in the estate. Based on these factors, the court determined that the application could be dealt with without serving notice of the application.

The court found that the document in question represented the deceased's testamentary intentions, and Mr Robinson's evidence satisfied the court that her intentions remained unchanged. The reason the will was not signed was solely due to the deceased's state of health. Therefore, the court ordered that the draft will attached to the affidavit of Mr Robinson, sworn on 23 December 2013 as exhibit D, be declared valid as the last will of the deceased.

The file is to be returned to the Registrar for consideration of the application for probate of the will.

Orders