Estate of Alshura

[2024] NZHC 1088

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-000001

[2024] NZHC 1088

IN THE MATTER

of the Wills Act 2007, section 14

AND

in the matter of an application by

YOLANDA SHEPHARD for validation of
the will of MARINA ALSHURA (Deceased)

BETWEEN

YOLANDA SHEPHARD

Applicant

AND

SEQUOIA VOORKAMP

Interested Party

Hearing:

1 May 2024

Appearances:

N Brodnax for the Applicant

R Grant for the Interested Party

Judgment:

6 May 2024

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 6 May 2024 at 9:00 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:

Edmonds Judd, Te Awamutu

Copy to: The interested parties

ESTATE OF MARINA ALSHURA [2024] NZHC 1088 [6 May 2024]

Introduction

[1]    The applicant, Yolanda Shepherd (Yolanda), is one of four adult children of Marina Alshura (the deceased), who died in Te Awamutu on 25 October 2023.1 The others are Lars Voorkamp (Lars), Tatyana Garner (Tatyana) and Marius Voorkamp (Marius).

[2]    At the time of her death the deceased was married to Mr Wahid Alshura (Mr Alshura) but they were in the process of separating. Mr Alshura lives in Egypt. He is not the father of the deceased’s children.

[3]    Yolanda applies for an order under s 14 of the Wills Act 2007 (Act) declaring a document dated 2 October 2017 (Document), which purports to be the will of the deceased, to be a valid will. The application is unopposed.

Service

[4]    In her minute dated 5 February 2024 Anderson J made directions as to service by email on Mr Alshura, and Lars and Tatyana. Justice Anderson also directed that Sequoia Voorkamp (Sequoia) be served with the proceedings as an interested person. Sequoia is the adult child of Marius. The Judge noted Yolanda’s view that it may be appropriate to appoint Sequoia litigation guardian for Marius in due course.

[5]    In an affidavit of service dated 20 February 2024, Louise Manders, a legal secretary, confirmed service of the application, supporting affidavits, sealed orders for service and a notice of the first case management conference on each of Mr Alshura, Lars, Tatyana and Sequoia in accordance with Anderson J’s directions. Lars and Tatyana support the application, as does Sequoia. Mr Alshura has taken no steps.2

1      In her affidavit, Yolanda explains that the deceased later used the surname Middelplaats, which was the surname of her second husband. Her death certificate records her surname as Middelplaats.

2      Ms Brodnax for the applicant responsibly advises that Mr Alshura has complained about the terms of the purported will but I accept her submission this does not affect its validity.

Litigation Guardian for Marius

[6]    On 26 April 2024 Sequoia applied to be appointed litigation guardian for Marius. Sequoia also applies for an order dispensing with service of that application on Marius as would otherwise be required by r 4.36(1)(b) of the High Court Rules. Those applications are unopposed.

[7]    Sequoia is a business analyst employed at Health New Zealand – Te Whatu Ora Southern in Dunedin. She has a degree in psychology. She consents to being appointed litigation guardian for her father, Marius. She deposes that she can fairly and competently conduct these proceedings on his behalf. She does not consider she has any interests adverse to his.

[8]    In her affidavit in support of her application, Sequoia explains that her father has suffered for 24 years from physical, intellectual and mental disabilities as result of an aneurysm in 2000, when he was only 34 years of age. He has not worked since then. He has lived in rehabilitation facilities and in social housing with increasing levels of support required.

[9]    Marius has lost most of his hearing and does not use hearing aids. He can read and write but tires quickly. He has poor short-term and long-term memory and is prone to episodes of anxiety and paranoia.

[10]   Sequoia attaches to her supporting affidavit a letter from a registered mental health nurse practitioner, employed at the medical centre where Marius has been enrolled as a patient since 2015. The nurse explains Marius’ medical condition in some detail. In her opinion, due to the cognitive effects of Marius’ brain injury, he would not be capable of understanding issues in a court environment and would not be able to give sufficient instructions to a lawyer in court proceedings.

[11]   This is consistent with Lars’ evidence concerning his experience assisting Marius over the years.

[12]   Having considered the evidence and heard from counsel, and taking into account the relatively limited ambit of this proceeding, I consider it is appropriate to

dispense with service on Marius of Sequoia’s r 4.35(1)(b) application that would otherwise be required under r 4.36(1)(b). I have no reason to doubt Sequoia’s evidence that the proceedings could cause Marius unnecessary distress and anxiety.

[13]   I am satisfied that Marius is an incapacitated person for the purposes of High Court Rule 4.35(2)(a). I am also satisfied that Sequoia is able to conduct these proceedings fairly and competently on behalf of Marius and that she does not have interests that conflict with his. The Document does not provide for Sequoia (or any of the deceased’s grandchildren), and Ms Grant for Sequoia confirms she takes no issue with that. Sequoia’s evidence is that she is taking steps to secure her father’s interest in the deceased’s estate. In that regard their interests are aligned.

[14]   I therefore appoint Sequoia to be Marius’ litigation guardian for the purpose of this proceeding.

Should the Court declare the Document valid?

[15]   The Document that is the subject of this application was written by the deceased. It appears to be a will. The Document:

(a)was titled “The Last Will And Testament Of Marina Alshura”;

(b)was signed by the deceased whose family recognise her signature;

(c)nominates Yolanda as an executor;

(d)gives instructions for the distribution of her property; and

(e)leaves funeral directions.

[16]   In his affidavit, Lars explains that his mother told him she had made the will and discussed the contents of it with him at Christmas. She told him that she would mail it to him, which she did a couple of weeks later. He has held it ever since. Lars confirms that the contents of the will are consistent with their discussions. Tatyana

also received a copy of the Document from her mother, and confirms it is also consistent with their discussions as to her mother’s testamentary wishes.

[17]   Yolanda, Lars and Tatyana all confirm that they recognise their mother’s signature and handwriting.

[18]   Section 11 of the Act sets out the requirements of a valid will. Yolanda is able to establish that the Document meets all of those requirements but one. Namely, that at least two witnesses were together in the deceased’s presence when she signed the document; and that each of those witnesses signed the document in the deceased’s presence.3

[19]   The Document is signed by two witnesses. Lars deposes that he recognises the signature of one of those witnesses who he knew because she was his mother’s neighbour for approximately 15 years. However, Yolanda deposes that her mother told her that the neighbour later moved to a retirement home and has now died.

[20]   Neither Yolanda nor Lars recognise the other signature. Yolanda says it is possible that it is the first witnesses’ daughter, whose first name is Caroline, although the signature might also say ‘Emily’ or ‘Cindy’ or ‘Cathy’. I agree that the signature is illegible.

[21]   Lars explains that he has carried out various Facebook searches and used optical character recognition software to try to identify the signature. This has been unsuccessful.

[22]   Consequently, Yolanda  is unable to prove that the Document complies with  s 11(4) of the Act.

[23]   Section 14 of the Act provides that the High Court may 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.4 Such orders can be made in respect of documents

3      Wills Act 2007, s 11(4).

4      Wills Act 2007, s 14(2).

that appear to be a will but do not comply with s 11.5 In determining whether or not to make such an order, the Court may consider: the document; evidence concerning the signing and witnessing of a document and the deceased person’s testamentary intentions; and evidence of statements made by the deceased.6

[24]   The Document makes provision for each of the deceased’s children. This is done in a way that is consistent with earlier trust documentation also drafted by the deceased.

[25]   I am satisfied the Document appears to be a will. Yolanda is named as the executor of the will, but cannot prove that it complies with s 11(4) of the Act. However, having considered the evidence and heard from Ms Brodnax for Yolanda I am satisfied that the Document expresses the deceased’s testamentary intentions.

Result

[26]I make orders:

(a)dispensing with service  on  Marius  of  Sequoia’s  application  under r 4.35;

(b)appointing Sequoia as Marius’ litigation guardian for the purpose of this proceeding; and

(c)declaring that the Document dated 2 October 2017 that is the subject of this proceeding is a valid will of Marina Alshura (also known as Marina Middelplaats).

Robinson J

5      Wills Act 2007, s 14(1).

6      Wills Act 2007, s 14(3).