Estate of Arons HC Auckland CIV 2011-404-2137

[2011] NZHC 2107

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-2137

IN THE MATTER OF     THE ESTATE OF MARIE LOUISE ARONS (Deceased)

Hearing:         On the papers Counsel:  M A Shanhan Judgment:      13 December 2011

JUDGMENT OF KEANE J

This judgment was delivered by  on 13 December 2011 at 4pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Shanahans, P.O. Box 15 149, New Lynn, Auckland 0640

ESTATE OF ARONS HC AK CIV 2011-404-2137 [13 December 2011]

[1]      On 15 September 2010 Marie Arons, a widow, aged 94, died leaving a will, dated 14 January 2009, naming her three children her executors and trustees, two of whom,  Keith  Stevens  of  Auckland  and  Sandra  Stevens  of  Brisbane,  Australia, survive her. (Their brother Clive Stevens died in 2009.) They seek a grant of probate in solemn form and the validation of the will.

[2]      Under the will in issue, which is conventional in form, Mrs Arons made bequests of jewellery to her daughter, Sandra Stevens, a granddaughter and two great granddaughters. She made $1,000 bequests to her four grandchildren. She left her remaining  money  to   Keith  and  Sandra  Stevens  equally  and  her  remaining possessions to all three of her children, then including Clive Stevens.

[3]      This will is also, on the face of it, validly executed. It is signed by Mrs Arons on 14 January 2009 and, on the same date, by two witnesses, neither of whom are beneficiaries. The difficulty is that Keith Stevens, who prepared this will and assisted his mother to execute it, had it witnessed by two work mates of his later in the day. They were not present when Mrs Arons executed it. They had never met her. It also lacks at attestation clause.

[4]      Keith and Sandra Stevens confirm that this will is very similar to a series of wills Mrs Arons had made earlier, prepared by Sandra Stevens, who had held an enduring power of attorney for her since 1993. Keith Stevens only prepared this version, they say, to include a minor bequest of jewellery to a great granddaughter, and only as a result of Sandra Stevens electing not to do so because her own adopted sons were not to benefit.

[5]      Mrs Arons, both say, retained herself all earlier wills but none have been found. Keith Stevens, they say, prepared this most recent will from a copy of the last will  Sandra Stevens  prepared,  but  he did  not  retain  that  copy.  He has  changed address six times since. Inquiries, they say, amongst solicitors, have elicited one will that Mrs Arons made in 1993 but, Sandra Stevens confirms, that it has long since ceased to be extant.

Ability to validate

[6]      The document, dated 14 January 2009, does not comply with s 11 of the Wills Act 2007, subs (4) of which requires there to be two witnesses before whom the will was executed, and a consistent attestation clause.

[7]      This Court may validate such a document under s 14, however, if it appears to be a will, whether or not it came into existence inside or outside New Zealand, and even if it does not comply with s 11. There is, as well, a threshold issue whether when the document was subscribed to the Court can be satisfied that it expressed Mr Hovelle's then testamentary intentions.

[8]      In Re Zhu (deceased)[1]  McKenzie J held that the overriding concern when s 14 is invoked is that all potentially affected be given proper notice. As long as they are, he said, undue formality and expense should not be imposed and, if all affected consent, the application can be granted on a without notice basis. I have, myself, exercised this discretion on the papers in just that way in a case not unlike this;[2] and this too, I consider, is an apt case.

Conclusions

[1] Re Zhu (deceased) HC New Plymouth CIV 2010-443-21, 17 May 2010.

[2] Latham v Thurston & Ors HC Auckland CIV 2009-404-0566, 15 December 2010.

[9]      First, I am satisfied that Mrs Arons had testamentary capacity at the time she executed this will. She was aged 94 but her general practitioner for in excess of 13 years, Dr Charles Sanders, confirms that whenever he saw her she was orientated in time and place, she was never confused or delusional, she had an intact memory and she was capable of taking a reasoned decision.

[10]     Secondly, I accept the evidence of Keith and Sandra Stevens that the will he prepared for his mother was simply another iteration of a series of similar wills prepared for Mrs Arons by Sandra Stevens, all executed before witnesses, and that

the only change he made was minor in character.

[11]     Thirdly, I am satisfied that Keith Stevens did confirm with his mother before she executed the will that it expressed her wishes and that, perhaps because the will did not contain an attestation clause, his decision to have it witnessed later in the day by his workmates was an explicable mistake.

[12]     Fourthly, I am satisfied that this will more fairly shares Mrs Arons' estate amongst her children and grandchildren than the only earlier will still extant, made in 1993, where in her residuary bequest she preferred Sandra Stevens to her two sons.

[13]     Fifthly, the only potential beneficiary on an intestacy,  who has not been provided for in this present will, on the face of it, is the son of Clive Stevens, a grandson who would have a claim on  an intestacy.  I am reassured  that he has consented to the will being given effect, despite the fact that he is not to benefit.

[14]     I make, therefore, an order validating Mrs Arons' will in the terms applied for. I direct that probate in solemn form be granted to the applicants. There will be no

order as to costs.

P.J. Keane J