Estate of Alebel

[2022] NZHC 2237

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-000029

[2022] NZHC 2237

IN THE MATTER

AND

of the Wills Act 2007

IN THE MATTER

of an application by CARLENE MERLYN MURRAY and STEVEN NOEL MURRAY

for an order under s 14 of the Wills Act 2007 re the Estate of ZENA FENTA ALEBEL Applicants

Hearing:	(On the papers)
Judgment:	2 September 2022

JUDGMENT OF VENNING J

This judgment was delivered by me on 2 September 2022 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Holland Beckett, Tauranga

Re: The Estate of ALEBEL [2022] NZHC 2237 [2 September 2022]

Introduction

[1]                  Following an inquiry by the solicitor for the applicants, and the absence of the Judge to whom the file had previously been referred, the Registrar has referred this file to me today.

[2]                  The applicants, Carlene Merlyn Murray and Steven Noel Murray, apply to the Court for an order validating a document titled “Will of Zena Fenta Alebel”, a valid will, and an order for grant of probate.

[3]                  The application is accompanied by the affidavit of Ms Murray, one of the named executors (made on behalf of her and Mr Murray), and affidavits of Elizabeth Butler, a solicitor of Tauranga, and Roebi Bidois. In accordance with directions of the Court the application has been served on the husband of the deceased, Mr Selamyehun Alemayehu Dessisa.

Background

[4]                  The deceased, Zena Alebel, died on 16 November 2021. She was married to Mr Dessisa. The deceased and her husband were Ethiopian and were married in Ethiopia on 4 August 2011. They have two children, Hermela (born 10 October 2010) and Mahilet (born 2 April 2013). The deceased and her husband came to New Zealand I infer as refugees. However, shortly after arriving in New Zealand, the deceased and her husband separated in about 2014. The deceased had not seen her husband since 2014.

[5]                  The deceased moved from Christchurch to Tauranga with the assistance of Women’s Refuge. Ms Murray met the deceased sometime between 2015 and 2016 when she attended the church at which Ms Murray and her husband are pastors. The deceased also became a volunteer in the church co-operative shop where Ms Murray worked.

[6]                  On 21 July 2021, the deceased made contact with Holland Beckett Law and inquired about making a will. The initial note recorded that the deceased had major respiratory issues in the past and was worried that if Covid comes back and she got it

she did not think she would make it. She wanted to make sure her savings and assets went to her children.

[7]                  Ms Elizabeth Butler, a solicitor in Holland Beckett, contacted the deceased. The deceased then instructed Ms Butler that she wished to make a will, the terms of which were the following:

(a)Everything was to be left to her two children, Hermela and Mahilet, when they reached 20 years of age;

(b)Her executors were to be “church pastor Steve + Carlene Murray”;

(c)“Guardian: Carlene and Steve if something happens to her”.

[8]The deceased subsequently provided full details of her children’s names.

[9]                  On 22 July 2022 Ms Butler emailed the deceased a copy of the draft will (attached to this judgment).

[10]              The deceased died by her own hand on 16 November 2021. On 25 January 2022, the Family Court made a final parenting order and additional guardianship order relating to the children in favour of Teganesh Woldie, the deceased’s sister.

[11]              The deceased did not contact Ms Butler to sign the will before her suicide on 16 November 2021.

Analysis

[12]              The application to validate the draft will as the deceased’s last will is on the basis it is a written record of Ms Alebel’s testamentary intentions communicated by her to the solicitor. Unfortunately Ms Alebel died without apparently taking the formal steps of executing the will.

[13]Section 14 of the Wills Act 2007 provides:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will; and

(b)does not comply with section 11; and

(c)came into existence in or out of New Zealand.

(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

1. The court may consider—

(a)the document; and

(b)evidence on the signing and witnessing of the document; and

(c)evidence on the deceased person’s testamentary intentions; and

(d)evidence of statements made by the deceased person.

[14]              On its face the document clearly appears to be a will. It came into existence in New Zealand and it does not comply with s 11 of the Act insofar as it was never executed by the deceased.

[15]              It is established the Court is entitled to take a robust approach to the application of s 14.1 In this case, apart from the document itself, the evidence of the statements made by the deceased regarding her testamentary intentions is particularly relevant.

[16]              The deceased expressed her general testamentary intentions initially to the receptionist at Ms Butler’s firm, to Ms Butler herself, and then confirmed her intentions by providing full details of the children’s names as requested. While there was a delay between the draft will being sent out and her death, I infer that the deceased’s testamentary intentions did not change. The deceased had no other responsibilities other than her two children. Her estate was limited (approximately

$60,000). Further, in the event she made no will, her estate would have gone under the Administration Act 1969 to her husband from whom she had been separated for over eight years. There is no suggestion of any reconciliation with her husband.

[17]              While a period of time passed when the solicitor provided the will in a form to be signed to the deceased and the deceased’s death, there is no evidence before the

1      Re Estate of Feron [2012] NZHC 44, [2021] 2 NZLR 551.

Court to suggest that the deceased’s intentions changed during that period. I infer that her intention to benefit her children remained her testamentary intent.

[18]              I am satisfied that the provisions of s 14 of the Wills Act are met in this case and that the draft will annexed as Exhibit E to Ms Butler’s affidavit should be confirmed as the valid will of the deceased. Order accordingly.

Probate

[19]              That leaves the issue of probate. Given that the will has been validated the named executors, Carlene Murray and Steven Murray would be entitled to apply for probate. The only other interested party would be the deceased’s former husband. In accordance with the order of the Court he has been served with the current application, which included the application for probate. He has taken no steps, albeit that in an email in response to being served with the papers he said: “Thanks, what can I do now sur”. However, that email was sent on 11 April 2022 and there has been no further communication by Mr Dessisa or on his behalf.

[20]              I am again satisfied it is appropriate there be an order directing probate in common form of the document annexed to Ms Butler’s affidavit to issue to the applicants as the named executors. Order accordingly.

[21]              I leave it to counsel to file an appropriate form of order at probate for sealing by the Registrar.

Venning J