Estate of Cleveland

[2016] NZHC 601

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-183 [2016] NZHC 601

IN THE ESTATE OF	ANNA MARIA CLEVELAND
MICHAEL DAVID FERRARI Applicant

On the papers
Judgment:	7 April 2016

JUDGMENT OF MALLON J

[1]      An  application  is  made  under  s  14  of  the Wills Act  2007  for  an  order declaring that a document is the valid will of Anna Maria Cleveland, a deceased person. The application is made because the will does not comply with s 11(4) of the Wills Act 2007.  The witnesses to Ms Cleveland’s signature were not together when she signed the document.  It is also not known if Ms Cleveland had already signed the document when it was witnessed or acknowledged that she had done so.

[2]      Ms Cleveland died on 14 September 2015.  A document dated 14 November

1998 was found in her papers. The document is handwritten.  It is almost in identical terms to a typewritten will dated 26 June 1987 but has the following changes:

(a)      The executor  in  the new will  is  Ms  Cleveland’s  brother,  Michael Ferrari, whereas under the earlier will it was her son, Craig Cleveland, and her son-in-law, David McElwee.

(b)The  earlier  will  permitted  Craig  Cleveland  to  remain  living  in  a property until he was the owner of his own property. That is not in the

new will.

ESTATE OF CLEVELAND [2016] NZHC 601 [7 April 2016]

(c)      The new will includes a new clause giving investment funds to her children ($25,000 to Craig and the balance equally to her daughters, Louise and Ruth).

[3]      In both the old and new wills Louise and Ruth were given their mother’s jewellery.   Under both wills the three children share equally in the balance of the estate.

[4]      An affidavit has been filed by Mr Ferrari.   He deposes to Ms Cleveland’s death and he attended her funeral.  He recalls Ms Cleveland asking him in 1998 if he would agree to being named as her executor in the will she was preparing.   He annexes consents from the beneficiaries under the new will (Craig, Louise and Ruth) to the order that is sought.

[5]      An affidavit has been filed by Gerard Hoskins.   He was one of the two witnesses to the new will.  He and his wife were friends of Ms Cleveland and her husband.  He recalls an occasion in 1998 when Ms Cleveland arrived at his house with a document.  She described it as “one of those family matters” and gave him a folded paper which she asked him to sign.  She was secretive about its contents but Mr Hoskins assumed it was her will.   He signed the document and Ms Cleveland then left.   He says the other person shown as a witness on the document, M R Sinclair, Secretary, Wellington, was not present and must have signed it on a separate occasion at another location.

[6]      Affidavits have been filed by Louise, Ruth and Craig.  They each depose that they understood from their mother that under her will she was she giving Craig some additional money because he had some difficulties.   Ruth also deposes that her mother told her she had changed her will by replacing the interest she had given Craig in her home to providing him with a little more money.  Her mother explained that this was because she and Louise had good secure jobs whereas Craig needed a little more help.  They all depose that they believe the new will fully reflects their mother’s testamentary intention.

[7]      I am satisfied on the evidence that the document expresses Ms Cleveland’s testamentary intention.  I declare the document to be a valid will.  The draft order that has been filed can be issued.

Mallon J