Estate of Aramoana aka Huia

[2014] NZHC 537

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-419-000272 [2014] NZHC 537

IN THE MATTER

of Section 14 Wills Act 2007

AND

IN THE MATTER

of the Estate of TRACY ANN ARAMOANA (also known as TRACY ANN HUIA)

Deceased

Hearing:	On the papers
Appearances:	A M Jefferies for the Applicant
Judgment:	21 March 2014

JUDGMENT OF ELLIS J

Counsel/Solicitors:

A M Jefferies, O’Sheas, Hamilton

Estate of Aramoana (aka) Huia [2014] NZHC 537 [21 March 2014]

[1]      Tracy Ann Aramoana (also known as Tracy Ann Hunia) died on 10 January

2012.  She and her husband, Marty Aramoana, were separated at that time.

[2]      Mrs Aramoana has six surviving children, the oldest of whom is 20.   Her sister, Margaret Hunia, has for some time looked after those children who are still minors.     They  were  placed  in  Ms  Hunia’s  care  by  the  Ministry  of  Social Development in 2010 and she was made an additional guardian of three of them on 6

August 2012.  She is presently in the process of applying for a parenting order which would give her full responsibility for their day to day care.

[3]      Mrs Aramoana did not leave a valid will when she died.  There is a document which is stated to be her will but it is unexecuted.  There is also another document, entitled “WHAT TRACY WANTS DONE LIST”.   The contents of this “list” are very similar to the contents of the unexecuted will.  The only differences between them are that:

(a)       the will contains more detail about debts, bank accounts and other assets;

(b)      the  will  contains  a  request  about  the  identity  of  Mrs Aramoana’s

replacement as a trustee of the Rihari & Rutu Hunia Whanau Trust;

(c)       the  will  says  her  children  are  to  receive  their  share  of  her  life insurance money at the age of 21 whereas the list specifies the age as

20;

(d)      the will appoints Ms Hunia as Mrs Aramoana’s executor but the list

does not refer to an executor;

(e)       the list states that Mrs Aramoana’s whiteware is to be shared between

two of her children but the will does not mention the whiteware;

(f)       the list refers to Mrs Aramoana’s clothing being shared amongst her

daughters but the will does not.

[4]      Marty’s affidavit states that both the will and the list were written by Mrs Aramoana and that on 9 January 2012 (the day before her death) he saw her sign the list, although it was not witnessed in a formal sense by him.  Marty says that on that day she asked him to call her lawyer about formalising the will and setting up a family trust (which is referred to in the two documents).   He said he called the lawyer that afternoon but that Mrs Aramoana died before her instructions could be carried out.  There is support for Marty’s evidence in the will document itself.  In the list of debts and liabilities there is a reference to her lawyers, but with no amount owing yet specified.

Application under s 14

[5]      Ms Hunia applied to the Court for a declaration that the unexecuted will is a valid will.

[6]      Mrs Aramoana’s adult children have been served with the application but

have taken no steps.

[7]      Marty  supports  the  application,  although  in  his  affidavit  in  support  he

appeared to be seeking that both the unexecuted will and the “list” be declared valid.

[8]      On inquiry from the Court, Ms Jefferies advised that the application was made in relation to both documents which, she said, together represented Mrs Aramoana’s testamentary intentions.  I will return to that point later below.

Discussion

[9]      In my view this is a clear case for the exercise of the Court’s powers under s 14 of the Wills Act 2007. That section enables the Court to declare that a document that appears to be a will but which does not comply with s 11 of that Act to be a valid Will.  That is the case here, because the “will” document drafted by Mrs Aramoana was neither executed nor witnessed and the “list” document was not witnessed.

[10]     I am satisfied that the unexecuted “will” document appears to be a will and

expresses Mrs Aramoana’s testamentary intentions.  That is plain from the document

itself, which is stated to be Mrs Aramoana’s will, purports to dispose of her property and appoints Mrs Hunia as her executor.  That conclusion is further supported by the similarity between the “list” and the ‘will” and by Mrs Aramoana’s signature on the “list”.  There is still further support in the form of Marty Aramoana’s evidence that he asked them to call her lawyers about formalising the will.

[11]     In my view, the only issue that arises in this case is whether both the list and the will should be declared to be valid wills, as Ms Jefferies has submitted.  In my view they should not.  I prefer to regard the “list” as supporting the will in the way that I have described above.  Moreover, although the discrepancies between the two documents are small, the prospect of their operating together adds an unnecessary layer of complexity.  The two matters that are referred to on the list but appear to have been omitted from the will are minor and, I feel sure, can be dealt with within

the family.1   I can see no real benefit to including the list in the order I am going to

make.

[12]     For the reasons I have given, I consider that the unexecuted document that is stated  to  be  the  last  will  of  Tracy  Ann  Aramoana  expresses  her  testamentary

intentions.  I make an order declaring that is a valid will accordingly.

Rebecca Ellis J

1      These are the two matters I referred to at [3](d) and (e) above.