Burnand v Neale

[2018] NZHC 2828

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1660 [2018] NZHC 2828

IN THE MATTER

of The Wills Act 2007

IN THE MATTER

of an application for an order under s 14 declaring a Will that does not comply with s 11 of that Act to be a valid Will

BETWEEN

NORMAN JOHN BURNAND, GRAEME RUSSELL BURNAND and CAROL JOY NEALE

Applicants

AND

DANTE TREY QUENSELL NEALE by his litigation guardian ROCHELLE KIM NEALE

First Respondent

CAMERON DOUGLAS PRESTON

NEALE by his litigation guardian ANGELA STACEY STOREY

Second Respondent

Hearing:	(On the papers)
Counsel:	D J Taylor for Applicants
Judgment:	1 November 2018

JUDGMENT OF BREWER J

Solicitors:

McBreens (Hamilton) for Applicants

BURNAND & ORS v NEALE & ORS [2018] NZHC 2828 [1 November 2018]

[1]      The applicants apply by way of originating application for an order declaring a document to be a valid Will.

[2]      The testator, Mr Douglas Norman Burnand, died at Auckland on 15 October

2017. The applicants are his children. All have filed affidavits.

[3]      The affidavit of Ms Carol Joy Neale deposes that the late Mr Burnand lived with her for the last 14 years of his life.   Ms Neale was his principal caregiver following the death of his wife, the applicants’ mother.

[4]      Ms Neale deposes that in 2016, the late Mr Burnand wanted to make a new Will. Ms Neale made inquiries about a new Will with the Public Trust and interpreted what she was told as meaning that only a single witness would be required. Ms Neale used the internet to obtain a specimen Will, and completed it in accordance with the late Mr Burnand’s wishes.  He signed the Will and his signature was witnessed by

Mr Craig Rohloff, who was also living at Ms Neale’s home at the time. Mr Rohloff is not a beneficiary under the Will.

[5]      A copy of the document sought to be declared the valid Will of the late

Mr Burnand is annexed to Ms Neale’s affidavit.  It is brief and unexceptional.  The applicant, Norman John Burnand, is appointed executor and trustee.  There are no specific bequests.  The residue of the estate is to be divided equally between the late Mr Burnand’s children, with gifts over to the children of any child who pre-deceases him.

[6]      I am satisfied by the affidavits of service that all parties who should have been served have been served.  No-one has taken any steps to oppose the application.  The period for doing so provided for in r 7.24 has in all cases expired.

[7]      Section 11 of the Wills Act 2007 sets out the requirements for Wills to be valid. The Will which the late Mr Douglas Norman Burnand signed is not a valid Will in terms of s 11 because there is only one witness.  However, s 14 empowers the Court to make an order declaring a document to be a valid Will if it is satisfied that the document expresses the deceased person’s testamentary intentions.

[8]      On the narrative I have set out above, I am satisfied that the document which is the subject of the originating application expresses the late Mr Burnand’s testamentary intentions. All other requirements for validity are met.

[9]      I grant the application.  I make an order declaring the document signed by the late Mr Douglas Norman Burnand as his Will dated 24 February 2016 to be his final Will.

[10]     I direct payment of the costs of this application to be met by the estate of the late Mr Burnand.

Brewer J