Estate of Ross

[2023] NZHC 3681

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-786

[2023] NZHC 3681

IN THE MATTER OF

Section 14 of the Wills Act and the Estate of STUART MARTIN ROSS, of Hamilton, Commercial Real Estate Broker

AND

IN THE MATTER OF

an Application by SUSAN HEATHER ROSS, of Hamilton, Teacher

Hearing:	On the papers
Appearances:	N J Burroughs for Applicant
Judgment:	13 December 2023

JUDGMENT OF CULL J

[1]                  This proceeding concerns the Estate of Stuart Martin Ross (the deceased) and an application by his spouse, Ms Susan Heather Ross under s 14 of the Wills Act 2007, seeking the Court’s validation of a handwritten document dated 23 June 2023 as the deceased’s last Will (the draft Will).

[2]                  The deceased had executed one valid Will, which was properly signed and witnessed, dated 3 June 1993. The deceased under that Will gave the whole of his Estate to Ms Susan Heather Baker, who is the current applicant, as she then was known, directing that that the Trustee/Executor, Solicitor Jeremy Hirst Brook, may in his discretion apply for the maintenance, education, or benefit of any minor beneficiary as he thinks fit. However, the deceased did not provide for any of his children, as there were no other named beneficiaries. There is a further document dated

ESTATE OF ROSS [2023] NZHC 3681 [13 December 2023]

in 1997, which purports to be the deceased’s last Will, but it is unsigned and plainly not witnessed. In the 1997 document, Ms Ross and the deceased’s children are the beneficiaries, who were to share the residuary estate in equal shares.

[3]                  Ms Ross now applies by way of originating application without notice for an order declaring the deceased’s Will instructions to his solicitor, which he signed on 23 June 2023, as the deceased’s last Will. Ms Ross swore an affidavit advising that the instructions for the draft will were handwritten by Mr Brook, Solicitor at Waikato Hospital, when he attended on the deceased prior to his death. The draft Will appoints Ms Ross as executor, revokes all former Wills, and leaves the deceased’s entire estate to Ms Ross. It contains the deceased’s wish to be cremated and for the ashes to be buried with his parents or Ms Ross if possible. The instructions appear to be signed by the deceased, but his signature was not witnessed by two people as required under s 11 of the Wills Act 2007.

[4]                  Mr Brook, the retired solicitor who took the deceased’s Will instructions, swore an affidavit confirming that he attended on the deceased at Waikato Hospital to take will instructions and that he signed the handwritten Will instructions, a copy of which was provided. He advised that before the deceased signed the Will instructions he read them to the deceased and “he seemed to have full knowledge of its contents” and the deceased signed in Mr Brook’s presence.

[5]                  Mr Ross has three children.1 Two children have provided their written consent to the s 14 orders sought by Ms Ross. However, the third son, Mr James Hewson Ross has been sent correspondence by email to which he has not replied. Ms Ross deposes that James Ross “has been given notice of my application to have the document declared to be a valid will of the deceased”. However, it is unclear how that notice was given, who by and whether Mr Ross received it.

1      The applicant has made reasonable inquiries for the purpose of s 5A(2) of the Status of Children Act 1969 as to the existence of a parent or child of the deceased in addition to those already known to the applicant. No such parent or child was discovered, as supported by a certificate from the office of the Registrar General at Births, Deaths, Marriages and Citizenship, Department of Internal Affairs.

[6]                  Ms Ross seeks to make her application without notice on the following grounds:

(a)that requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant:

(b)that an enactment expressly permits the application to be made without serving notice of the application.

[7]                  Ms Ross has not particularised the prejudice she is likely to suffer as a result of being required to proceed on notice. She has also not explained why any delay would be undue in the circumstances.

[8]                  There are two aspects to this application which cause concern and are the reasons why I decline the application to proceed without notice. The first relates to the service of the proceedings on the deceased’s third son and the second is the lack of information surrounding the Will instructions from the deceased, his testamentary intention and capacity, and whether his moral duty towards his children was raised with him.

[9]                  While s 14 does not prescribe a procedure for dealing with applications under s 14, the overriding principle is that all persons potentially affected by the making of an order should be given proper notice of the proceedings and a proper opportunity to be heard.2 Where all affected parties support or do not oppose the application, proceedings can be brought on a without notice basis. But if parties may oppose the order or be affected, proceedings should proceed on formal notice.3

[10]              I am not satisfied that all affected parties consent to this application. I consider that service of the proceedings should be effected on the deceased’s son, Mr James Hewson Ross. The fact that he has been emailed and there has been no response is insufficient. As an affected party, he is entitled to formal notice, and Counsel are to file an affidavit of service accordingly. I contrast the steps taken to notify Mr James

2      Re Estate of Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009 and Re Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010.

3      Re Newman HC Hamilton CIV-2010-419-888, 21 July 2010.

Ross with the inquiries required of an applicant under the Status of Children Act 1969 to discern the existence of a parent or child of the deceased. Those inquiries have been undertaken appropriately. The notification to the deceased’s son therefore should be treated formally, in the absence of his reply or consent.

[11]              The second reason is the absence of any explanation or evidence of the circumstances relating to the non-execution of the draft Will or any other supporting evidence relating to the deceased’s testamentary intention or capacity. There are a number of matters which require further detail. The first is the deceased’s testamentary capacity and his ability to understand the import of making will instructions and signing them. The reference by Mr Brook to the deceased “seeming to have full knowledge of its contents” requires further explanation.

[12]              It is also unclear when the deceased passed away in relation to the timing and date of the draft Will and what condition he was in at the time he gave the Will instructions. Nor is it clear whether the deceased had ever been advised that he had a moral duty to his children under the Family Protection Act 1980. Accordingly, there is not enough information to satisfy me that the draft Will reflected the deceased’s testamentary intention, to enable the Court to cure the defects in the formal requirements for the execution of a valid Will, by way of an order under s 14.

[13]              For these reasons, I decline to have this application proceed on a without notice basis.

[14]Accordingly, I make the following directions:

(a)That Mr James Hewson Ross be formally served with notice of the proceeding and the applicant is to file an affidavit of service.

(b)That the applicant is to provide further information as to:

(i)the deceased’s testamentary capacity at the time of signing the Will instructions;

(ii)the circumstances relating to the reason for the non-execution of the Will instructions; and

(iii)the deceased’s testamentary intention in not providing for his children.

Cull J

Solicitors:
Brook Law, Hamilton for Applicant