Estate of Ebert - [2022] NZHC 2485

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-778

[2022] NZHC 2485

UNDER THE Wills Act 2007 and the Administration Act 1969

BETWEEN

CRAIG STEVEN EBERT

Applicant

CIV-2019-409-545

UNDER THE

Property (Relationships) Act 1976

BETWEEN

SCOTT MALCOLM OSTERMANN

Plaintiff

AND

CRAIG STEVEN EBERT

Defendant

Hearing: 27 July 2022 (by way of VMR)

Appearances:

A L Bodman and M K M Yarrall for Applicant/Defendant

S M Bevin and A L Bodman for Applicant from 22 September 2022

Judgment:

28 September 2022

Reissued:

6 October 2022

JUDGMENT OF EATON J

This judgment was delivered by me on 29 September 2022 at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE ESTATE EBERT [2022] NZHC 2485 [28 September 2022]

Introduction

[1] Craig Steven Ebert is the temporary administrator of the estate of his late sister, Andrea Joan Ebert, who died at Christchurch on 1 August 2017 and was survived by her two children.1

[2] Craig is involved in two proceedings on behalf of the estate. The proceedings were consolidated on 25 November 2019.

[3] Firstly, Craig seeks an order pursuant to s 14 of the Wills Act 2007 (the Act) declaring a document to be Andrea’s valid will. This is an originating application, made on notice. The declaration is sought because the document does not comply with s 11 of the Act. The notice of opposition filed by Andrea’s former partner,
Scott Ostermann, was struck out following non-compliance with unless orders.2

[4] A second issue for determination is an application for division of relationship property under the Property (Relationships) Act 1976 (the PRA). Scott’s statement of claim was struck out by Judge Paulsen on 27 April 2022, leaving Craig’s counterclaim to be determined.

[5]These matters proceeded by way of formal proof hearing.

Wills Act 2007 Background

[6] Andrea created a will on 25 June 1990 (the original will). The original will appointed the Public Trustee of New Zealand as the executor and trustee of the will. It provided that on Andrea’s death, the residue of the estate was to be transferred to Scott. If Scott predeceased Andrea, the estate was to be divided equally between Andrea’s children living at the date of her death. If Scott predeceased Andrea and Andrea had no children living at the date of her death, the residue of her state was to be divided equally between her parents as to one part and Scott’s mother as to the other.

1 To avoid confusion, I will refer to the parties by their first names.
2 Re Ebert [2022] NZHC 365 at [41] and the subsequent minute of Associate Judge Paulsen issued on 27 April 2022.

[7] Andrea was admitted to hospital on 13 June 2017 and diagnosed with cancer. Following her diagnosis, Andrea created handwritten notes that recorded her assets and liabilities, and her calculations dividing her estate. These changes reflected Andrea’s separation from Scott several years prior.

[8] Andrea’s notes were expanded upon and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Estate of Ebert

Details

AGLC: Estate of Ebert [2022] NZHC 2485
Case: [2022] NZHC 2485
Decision Date: 28 September 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the case of Estate of Ebert involved Craig Steven Ebert, the temporary administrator of his late sister Andrea Joan Ebert's estate, and Scott Malcolm Ostermann, Andrea's former partner. Craig sought a declaration that a certain document was Andrea's valid will and to divide their relationship property. Scott opposed the application. The court was required to decide whether the contested document expressed Andrea's testamentary intentions and, if so, whether it should be validated as a will. The court was also required to determine the division of relationship property between the estate and Scott.

The court held that Andrea had testamentary capacity when she signed the contested document and that it expressed her testamentary intentions. The court found that Andrea intended to create a new will, and the affidavits provided aligned in their recollection of Andrea's testamentary intentions and reflected the content of the contested document. The court held that the requirements under s 14 of the Wills Act 2007 were met, and the contested document should be validated as a will. The court held that the date of separation between Andrea and Scott was early 2010, at the latest. The court found that the net sale proceeds from the Cintra Place property should be divided between the estate and Scott. The court also held that the life insurance policy should be valued at the date of separation, and the resulting payment should vest in the estate in full as Andrea's separate property.

In conclusion, the court declared that the contested document was the valid will of Andrea Joan Ebert. The court ordered that the net sale proceeds of Cintra Place be divided between the estate and Scott, the life insurance policy was Andrea's separate property, and Scott's interest in the Cintra Place sale proceeds was offset against the funds payable. All other assets held by the estate and Scott respectively were separate property. The court ordered costs to follow the event on a 2B basis.

Orders