Estate of Pemberton

[2016] NZHC 626

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2915 [2016] NZHC 626

UNDER	Rule 19.2 of the High Court Rules
IN THE MATTER	of the Wills Act 2007
IN THE MATTER	of an application by LISA MARIE ANDERSON and DAVID BRUCE PEMBERTON

On the papers
Counsel:	PM Phillips for applicants
Judgment:	11 April 2016

JUDGMENT OF FAIRE J

Solicitors:           Phillips Law, Auckland

Re estate of ND Pemberton [2016] NZHC 626 [11 April 2016]

[1]      A without notice application is made by the daughter and son of the deceased for an order that a document dated 10 June 2013 be declared the valid will of the deceased.

[2]      Neville David Pemberton died at Waiuku Hospital and Rest Home on 29 July

2015.  He is survived by his wife and his six children.  He was separated from his wife at the date of his death.

[3]      The deceased’s widow and his six children all consent to the orders sought. The first applicant, who had access to the deceased’s personal papers, confirms that she searched same and also made inquiries of her siblings and her mother.   That inquiry and investigation confirmed that there are no other papers of a testamentary nature of the deceased, apart from the document which is the subject of this application.

[4]      The applicant has also made reasonable inquiries for the purposes of the Status of Children Act 1969 as to the existence of a parent or child of the deceased, in addition to those whom I have made reference to and who could claim an interest in  the  deceased’s  estate  by reason  only of  the  Status  of  Children Act  and  any enactment governing the distribution of intestate estates.

[5]      Those inquiries confirmed that the applicant had established that there were no other living children or parent or potential claimant of the deceased at the time of his death.

[6]      The document, the subject of this application, does not comply with the provisions of s 11(4)(b) of the Wills Act 2007, because it has been witnessed by one person only.   The document leaves the residue of the estate to the deceased’s six children and his wife in equal shares.  They are the only persons who would take if the deceased was found to have died intestate pursuant to the provisions of s 77 of the Administration Act 1969.

[7]      Section 14 of the Wills Act 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

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

and

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

[8]      The deceased’s estate is a small one, being just under $17,000.   Probate is required because it exceeds $15,000.  The document the subject of this application was signed two years before the deceased’s death and whilst he was a patient at Auckland Hospital.  It is witnesses by Mel Tavelia who, the applicant says, is both a minister of religion and Justice of the Peace.   The deceased’s daughter said the deceased intended this document to be his will. There is nothing extraordinary in the provisions it makes to the members of the deceased’s family.  They all support the orders that are sought, including the deceased’s wife.

[9]      I am satisfied that the requirements of s 14(1) of the Wills Act 2007 have been  met  in  this  case.     I  am  also  satisfied  that  it  expresses  the  deceased’s testamentary intention.   In addition, I am satisfied that it is appropriate that this matter be dealt with on a without notice basis on the papers.

Orders

[10]     Accordingly, I order that the document dated 10 June 2013, a copy of which is annexed as exhibit “A” to the affidavit of Lisa Marie Anderson, be declared the valid will of Neville David Pemberton.

[11]     I anticipate there will be no costs applications arising out of this application. If I am wrong in that position and out of an abundance of caution, I reserve the

question of costs and invite memoranda to be filed if that is necessary.

JA Faire J