Estate of Pagalunan

[2017] NZHC 2353

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002158 [2017] NZHC 2353

UNDER

s 13 Wills Act 2007

IN THE MATTER

OF THE ESTATE OF MARIZA CARUMBA PAGALUNAN

AND

IN THE MATTER

OF AN APPLICATION BY RHEYET MARIE PAGALUNAN FLORES AND MARIZA CARUMBA PAGALUNAN

Hearing:	(On the papers)
Judgment:	26 September 2017

JUDGMENT OF VENNING J

This judgment was delivered by me on 26 September 2017 at 4.45 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Law & Associates, Manukau City, Auckland

ESTATE OF PAGALUNAN [2017] NZHC 2353 [26 September 2017]

[1]      The applicant Rheyet Marie Pagalunan Flores applies to the Court for an order that the disposition to her in the last will and testament of her mother Mariza Carumba Pagalunan (deceased) dated 6 July 2017 is not void.  The Court has made an order granting leave to commence the proceedings by originating application and directing that service is to be effected on the named beneficiaries only.

[2]      The  deceased  died  on  8  June  2017  leaving  four  children,  including  the applicant, surviving her.  Her estate primarily comprises of a $300,000 life insurance policy.

[3]      In her last will the deceased left $270,000 being the bulk of her estate, to her four children, with smaller bequests to her grandchildren as follows:

(a)       $55,000 to the applicant; (b)     $60,000 to her son Marlex; (c)       $60,000 to her son Frhelix;

(d)      $55,000 to her minor daughter Arby;

(e)       $10,000 each to her four grandchildren.

[4]      The deceased stipulated that $30,000 was to meet liabilities and funeral costs. The deceased appointed the applicant to be her executor and also appointed the applicant the legal guardian of her minor daughter, Arby.

[5]      The will was prepared by the applicant’s husband.  The will was executed by the deceased in the presence of Annette Hamilton (a family friend), the applicant’s husband and the applicant.  The deceased’s other three children, Marlex, Frhelix and Arby, were also present in the room when the will was signed. Probate of the will was granted on 4 September 2017.

[6]      As the applicant and her husband were witnesses to the execution of the will the bequest in the will in favour of the applicant is void:  s 13(1) Wills Act 2007.

[7]      However, s 13(1) does not apply if one of the situations in s 13(2) applies.

[8]      Section 13(2)(a) does not apply.  There is only one independent witness Ms

Hamilton.

[9]      Section 13(2)(b) does not apply either.   The disposition in favour of the applicant is not the repayment of a debt.

[10]     I have considered whether s 13(2)(c) could apply.  It requires all persons who would benefit directly from the avoidance of the disposition to consent in writing and to have legal capacity to give consent. In the present case the applicant’s adult siblings have consented to the application.  But Arby is a minor.  Although the applicant has been appointed as her legal guardian under the terms of the will, the applicant cannot consent on her behalf in the present circumstances.

[11]     The last provision is s 13(2)(d). That requires the Court to be satisfied that the will-maker, in this case, the deceased Mariza Carumba Pagalunan, knew and approved of the disposition and made the disposition voluntarily.

[12]     I note that Ms Hamilton, the independent witness, swore an affidavit in support of the grant of probate deposing that the will was signed in her presence and that:

Before the deceased signed the will, the will was read to her by Rheyet [Flores (the applicant)]. That was because by this stage in her illness she was having difficulty keeping her eyes open for any period of time.  However, she was fully alert, and interacted with us regarding the contents of her will.   For instance, the deceased asked me to clarify various aspects of the will.  She wanted to make sure that what she had provided in earlier, draft will instructions had been included.

[13]     On the basis of the affidavit evidence of the independent witness Ms Hamilton and also the further affidavit evidence of the applicant and her adult siblings, who were present when the deceased executed the will, the Court is satisfied that the deceased knew and  approved  of  the disposition in  favour of the applicant  and made the disposition voluntarily.  The requirements of s 13(2)(d) are satisfied.

Result

[14]     There will be an order in accordance with the application, namely that the disposition  to  the  applicant  in  the  last  will  and  testament  of  Mariza  Carumba

Pagalunan, deceased, dated 6 June 2017 is not void.

Venning J