Carroll v Carroll

[2021] NZHC 1023

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2019-435-14

[2021] NZHC 1023

UNDER

section 14 of the Wills Act 2007

IN THE MATTER

of an application pursuant to s 14 of the said Act in connection with the Estate of Ngaro Evelyn Waiomio Manuel Peeni Carroll

BETWEEN

TE ATUA MANUEL WAIOMIO PEENI CARROLL

Applicant

AND

GERALDINE CARROLL

Respondent

Hearing:	5 May 2021
Appearances:	J C Gwilliam and H Joubert for applicant C D Batt for the interested parties
Judgment:	7 May 2021

CONSENT JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]Ngaro Evelyn Waiomio Manuel Peeni Carroll died on 28 November 2018.

[2]                  Mrs Carroll did not leave a will that was compliant with s 11 of the Wills Act 2007.

[3]                  However, prior to her death Mrs Carroll had instructed her then solicitors to prepare a will. A draft was prepared. In this document, Mrs Carroll appointed two of her children, Te Atua Manuel Waiomio Peeni Carroll (Te Atua) and William Young Waiomio Carroll (William), as her executors and trustees, and left her net estate to  Te Atua “… with the request that he looks after the rest of the family”. On 15 July

CARROLL v CARROLL [2021] NZHC 1023 [7 May 2021]

2019 Te Atua commenced this proceeding seeking an order pursuant to s 14 of the Wills Act validating the draft will.

[4]                  The proceeding was duly served on those persons who might potentially benefit on an intestacy (as interested parties).

[5]Te Atua’s application was opposed by the interested parties.

[6]                  The principal asset of the estate is a property at 46 River Road in Masterton, in which Te Atua, and other members of the wider whanau reside.

[7]                  By direction of van Bohemen J the proceeding was set down for a judicial settlement conference commencing at 10.00 am on 5 May 2021.

[8]                  At the conclusion of the conference the parties reached an agreement in relation to the core issues. At their request, this consent judgment sets out the scope of the agreement.

[9]                  As the settlement does not necessarily resolve all of the details of the arrangements to be implemented, the proceeding is to continue for a time and I propose to grant leave to all parties to come back to the Court in the event that the Court can assist with implementation, and to request the Registrar to schedule a case management conference for monitoring purposes.

[10]By consent I make the following orders:

(a)Pursuant to s 14 of the Wills Act I make a declaration to the effect that the unsigned will of Ngaro Evelyn Waiomio Manuel Peeni Carroll that is the subject of this proceeding is to be treated as a valid will. In this regard, I record that I have reviewed the affidavit evidence and heard from counsel for both parties and I am satisfied that the order is a proper one to make by consent having regard to the considerations set out in sub-s 3 of s 14;

(b)The administrator of the estate is to be Geraldine Lorraine Te Wairakau Carroll of Masterton, Teacher;

(c)Clause 4(b) of the Will is to be interpreted as an expression of intention on the part of the testatrix to constitute a whanau trust;

(d)As soon as possible the administrator shall apply to the Māori Land Court for the constitution  of  a  whanau  trust  for  the  benefit  of  Mrs Carroll’s descendants and settle the net assets of the estate into that trust;

(e)It is to be a term of the trust that Te Atua Manuel Carroll shall have the right to occupy the property at 46 River Road, Masterton, so long as he maintains the property and pays such other outgoings as set from time to time by the trustees of the proposed trust when it is settled;

(f)The parties’ costs of and incidental to this application are to lie where they have fallen;

(g)All parties are to have leave to come back to the Court in relation to any issue.

(h)The Registrar is to liaise with counsel with a view to arranging a case management teleconference for this file not before 5 August 2021, for monitoring purposes.

Associate Judge Johnston

Solicitors:

Main Street Legal Ltd, Upper Hutt for applicant Batt Law, Masterton for respondent