Estate of Ambrogio

[2020] NZHC 1411

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-000041

[2020] NZHC 1411

UNDER

Wills Act 2007

IN THE MATTER

of the Estate of ROSALIE JEAN AMBROGIO of Dunedin

BETWEEN

MARTIN ADRIAN HAANEN

Applicant

Hearing:	On the papers
Appearances:	K J Jarvis for Applicant
Judgment:	22 June 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 22 June 2020 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 22 June 2020

Introduction

[1]    The applicant, Martin Adrian Haanen, seeks an order pursuant to s 14 of the Wills Act 2007 that a document  be  declared  a  valid  will  of  the  deceased,  Rosalie Jean Ambrogio, who died at Dunedin on 29 October 2019.

RE AMBROGIO [2020] NZHC 1411 [22 June 2020]

[2]    This application is made by way of an originating application, without notice, on the grounds all persons affected by the application have consented to it.

Background

[3]    On 22  March  2018  Mr  Haanen  was  appointed  Property  Manager  for  Ms Ambrogio. This appointment authorised him to make testamentary disposition on Ms Ambrogio’s behalf, subject to an order by the court approving the disposition.1 It came to his attention that Ms Ambrogio had a will dated 28 November 1972 (the 1972 will). The 1972 will provided for a half share of Ms Ambrogio’s property to be distributed to her sister, Elizabeth, and a half share to a charity that no longer exists but is akin to the SPCA. Ms Ambrogio never married, had no children and all her siblings predeceased her, including her sister Elizabeth.

[4]    Ms Ambrogio advised Mr Haanen that she wanted the residue of her Estate to be distributed to the SPCA or  an equivalent charity.   Following  this discussion,   Mr Haanen sought assistance from Mrs Jensen-McCloy, who had previously been appointed Lawyer for Subject Person for Ms Ambrogio, in preparing a draft will (the testamentary document). A will was prepared leaving Ms Ambrogio’s residuary Estate to the SPCA.

[5]    On 4 October 2019 Mr Haanen made an application to the Family Court at Dunedin for approval of the testamentary document. On 7 October 2019 he purported to execute the testamentary document, failing to realise that the will needed to be approved by the Court prior to execution.

[6]    On 29 October  2019  Ms  Ambrogio  died  unexpectedly  at  Dunedin.  On 30 October 2019 the Family Court at Dunedin made an order approving the testamentary document for execution by Mr Haanen.

Law

[7]    This Court has power to declare a document a valid will, pursuant to s 14 of the Wills Act. That section states:

1      Protection of Personal and Property Rights 1988, s 55 [PPPRA].

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.

(3)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.

Discussion

[8]    I am satisfied that the requirements of s 14(1) have been met. The testamentary document appears to be a will, it came into existence in New Zealand and there was a non-compliance with s 11 of the Wills Act.

[9]Section 11 of the Wills Act provides:

11       Requirements for validity of wills

(1)A will must be in writing.

(2)A will must be signed and witnessed as described in subsections (3) and (4).

(3)The will-maker must—

(a)sign the document; or

(b)direct another person to sign the document on his or her behalf in his or her presence.

(4)At least 2 witnesses must—

(a)be together in the will-maker’s presence when the will- maker—

(i)complies with subsection (3); or

(ii)acknowledges that—

(A)he or she signed the document earlier and that the signature on the document is his or her own; or

(B)another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)each sign the document in the will-maker’s presence.

(5)As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:

(a)that he or she was present with the other witnesses when the will-maker—

(i)signed the document; or

(ii)acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or

(iii)directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

(iv)acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b)that he or she signed the document in the will-maker’s presence.

(6)No particular form of words is required for the purposes of subsection (5).

[10]   There is no dispute  that  the  testamentary  document  was  witnessed  by  two persons. Indeed, the affidavits in support of the application confirm this. However, it requires a “will-maker” to sign the document. The term will-maker is defined in s 6 of the Act as “a person who makes, changes, revokes or revives a will” and “is the equivalent of testator or testatrix”.

[11]   As Ms Ambrogio’s Property Manager, Mr Haanen was authorised to execute a will on her behalf by the Family Court.2 However, this power was limited by an additional requirement that the Court approve the terms of the proposed will prior to execution.3 Accordingly, the power to execute the testamentary document did not come into effect until the time the Court approved the testamentary document which was on 30 October 2019. It follows that Mr Haanen did not have the power to execute the testamentary document (and thus, to be a will maker) when he purported to do so on 7 October 2019. For this reason, I am satisfied that there has been a non- compliance with s 11, giving me jurisdiction to exercise the power under s 14 to declare the document a valid will if the other statutory requirements are met.

[12]   Under s 14 the Court may declare a document to be a valid will if it is satisfied that the document expressed the deceased person’s testamentary intentions.

[13]   In my view, the evidence is sufficient to demonstrate that the testamentary document expresses Ms Ambrogio’s testamentary intentions.

[14]Two affidavits have been filed in support of the application.

[15]   Mr Haanen, in his affidavit of 7 May 2020, deposes that Ms Ambrogio advised him on 28 June 2019 that she wanted her estate to be distributed to the SPCA or equivalent registered charities.

[16]   Mrs Larna Jensen-McCloy, in her affidavit of 26 May 2020, deposes that   Ms Ambrogio expressed her wish that her remaining property go to the SPCA in Dunedin when she died. Attached to Mrs Jensen-McCloys affidavit is a report dated 14 March 2018 written by Mrs Jensen-McCloy in her capacity as Lawyer for Subject Person. Ms Ambrogio is recorded as stating she did not have a will and would like her property to go to her neighbour, whose name she could not recall, and the SPCA. Mrs Jensen-McCloy confirms that Ms Ambrogio advised she was never married, had no children and her siblings were all deceased. Mrs Jensen-McCloy deposes that she

2      Pursuant to the order of the Family Court at Dunedin dated 22 March 2018.

3      PPPRA, s 55(2).

believes the contents of the testamentary document reflect in full the last known testamentary wishes of Ms Ambrogio.

[17]   This evidence shows Ms Ambrogio has repeatedly reiterated her intention that her Estate, or part of it, be distributed to the SPCA or a similar registered charity. This is consistent with her testamentary intentions under the 1972 will. Her sister Elizabeth to whom the 1972 will left a half share is deceased. The sole change to the disposition of property is that the full residue of Ms Ambrogio’s estate will be distributed to the SPCA.

[18]   Further, the Family Court issued an order approving the testamentary document for execution by Mr Haanen. By an unfortunate turn of circumstances    Ms Ambrogio died the day before this order was made. In effect, I consider the Family Court ratified the steps taken by Mr Haanen and I take that into account in deciding whether to validate the testamentary document despite its execution preceding, rather than following, the issue of the Family Court’s order.

[19]   Finally, I note Mr William Arthur Anglin, who is named as the joint executor in the testamentary document, has provided his consent on 7 May 2020 to the testamentary document being declared a valid will. No other persons appear to be affected by the application.

[20]   Taking into account all these factors, I am satisfied the document annexed to the affidavit of Mr Haanen as Exhibit “B” expressed Ms Ambrogio’s testamentary intentions.

Result

[21]   It is therefore appropriate that I make an order declaring the testamentary document a valid will. I make the order sought at paragraph 1 in the originating application made without notice for order declaring document to be a valid will.

Solicitors:

Webb Farry, Dunedin