Estate of Barfuss

[2023] NZHC 1579

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-162

[2023] NZHC 1579

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER OF

the estate of KURT ERICH OTFRIED BARFUSS

BETWEEN

MARLON BENJAMIN BESUYEN

Applicant

Hearing:	On the papers
Counsel:	S C Clay for Applicant
Judgment:	23 June 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 23 June 2023 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1]                 The applicant, Marlon Besuyen, applies pursuant to s 14 of the Wills Act 2007 for an order declaring a document to be the valid will of the late Kurt Erich Otfried Barfuss (the deceased).

RE BARFUSS [2023] NZHC 1579 [23 June 2023]

[2]                 The deceased died on 18 January 2023 when he was 82 years old. His wife, Josina Barfuss, predeceased him. The couple had no children and, at the time of death, the deceased had not remarried or entered a de facto relationship.

[3]                 After the deceased died, Mr Besuyen travelled to Auckland from Rangiora and stayed at the deceased’s house in Auckland. While there, he discovered the document in question, which he attaches to his  affidavit, and which is entitled “Last will    Kurt Erich Otfried Barfuss, also known as Fred Barfuss” and is dated 27 October 2022. Mr Besuyen provides evidence to confirm that the document was written by the deceased and signed by him. However, the document was not witnessed.

The Wills Act 2007

[4]                 Section 11 sets out the requirements for validity of wills. The only requirement that the document does not meet is that the will must be witnessed by two witnesses who are together in the will-maker’s presence when he signed the document and must each sign the document themselves in the will-maker’s presence.1

[5]                 Because of this non-compliance, s 14 of the Wills Act is engaged. That section 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.

(3)The court may consider—

(a)the document; and

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

1      Wills Act 2007, s 11(4).

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

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

The deceased’s previous will

[6]                 The deceased executed a will on 24 August 1973. Under that will, Fred left his entire estate to his wife or, should she predecease him, then to such of his children as were living at his death, but in the event neither his wife nor any children be living at his death, then the Bible Society in New Zealand (the Bible Society) was to be the sole beneficiary.

[7]                 As directed, the application was served on the Bible Society, which is the only party adversely affected by the application. The chief executive officer of that entity has sworn an affidavit confirming that the Bible Society neither consents nor opposes the application to validate the document dated 27 October 2022 and abides the decision of the Court.

The document

[8]                 The document which is sought to be validated as a will is handwritten. It apportions the deceased’s estate to a range of named individuals and organisations, including the Bible Society. The document effectively disposes of the entirety of the estate as the various percentages apportioned to  individuals or entities  add up to  100 per cent. It also expresses a wish that Mr Besuyen be the executor and makes a gift to a Mr Bruce Cooper of tools and the deceased’s Bedford van.2

[9]                 Mr Clay, for the applicant, submits that it is appropriate to validate the document as a will pursuant to s 14 of the Wills Act on the grounds that the document:

(a)appears to be a will;

(b)does not comply with s 11 in that it is not witnessed;

2      Albeit it erroneously uses the word “executioner” which I accept is clearly a spelling error.

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

(d)expresses the deceased’s testamentary intentions.

[10]              The first three matters are entirely uncontentious. The fourth matter is the subject of affidavit evidence provided to the Court. In that regard, I rely on the affidavits  of  the  applicant,   Mr   Bruce   Cooper,   Ms   Dorothy   Cooper   and   Mr Andre Holtslag. These affidavits confirm that:

(a)the deceased wished the applicant to be his executor;

(b)the deceased intended to change his existing will once his wife predeceased him; and

(c)the deceased expressed the wish that some of the estate to go to charity and some to wider family members and friends.

[11]              In addition, there is an affidavit from Dr Nasir Khan who deposes that up until the end of November 2022, the deceased had “full mental capacity”.

[12]              In reliance on this evidence, I am satisfied that the document expresses the deceased’s testamentary intentions.

[13]              Accordingly, an order is made declaring the document attached to the affidavit of Marlon Benjamin Besuyen sworn 20 April 2023 at pages 5 and 6 of exhibit A to be the valid will of the deceased. I also order that costs of $9,799, as claimed, are payable from the estate.

Solicitors:

Lane Neave, Christchurch