Estate of Ross

[2017] NZHC 1230

IN THE HIGH COURT OF NEW ZEALAND

WHANGAREI REGISTRY

CIV-2017-488-8

[2017] NZHC 1230

UNDER

Section 14 Wills Act 2007

IN THE MATTER

of the Estate of the late BRIAN JOSEPH ROSS of Kaikohe, Farmer (deceased)

AND

IN THE MATTER

of an Application by ANDREW BRIAN ROSS of Auckland, Bank Landing Manager, for an Order declaring an unsigned Will of the late BRIAN JOSEPH ROSS to be valid

Applicant

On the papers
Counsel;	D Jenkin for Applicant
Judgment:	7 June 2017

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 7 June 2017 at 4.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Estate of BJ Ross [2017] NZHC 1230 [7 June 2017]

[1]                 On 11 March 2016, Brian Joseph Ross died unexpectedly and tragically as a result of a tractor accident on his farm at Wharekawa Road, Oue, near the Hokianga Harbour.

[2]                 For approximately 13 years prior to his death, Mr Ross had been in a relationship in the nature of marriage with Ms Katrina Michele Orr, who owned the farm property with him as tenants in common in equal shares. They operated the farming business as an equal partnership.

[3]                 Mr Ross had executed a will on 18 January 2012 (the 2012 will) in which he provided for Ms Orr to take a life interest in certain other property with provision to divide his residuary estate between his son, Andrew Brian Ross, and his daughter, Rosemarie Jean Costar, and with gifting-over provisions for his grandchildren.

[4]                 In June 2015, however, Mr Ross instructed solicitors to prepare a new will (the 2015 will), revoking the 2012 will. The 2015 will was prepared according to his instructions and handed to him, but it was never executed.

[5]                 It is common ground that at the time of Mr Ross’s death, Ms Orr and he were either in the early stages of separating or were in the course of preparing for a separation from their relationship. It had been their intention to sell the Wharekawa farm and divide the net proceeds equally between them.

[6]                 It is agreed between Mr Andrew Ross, Ms Costar and Ms Orr that the 2015 will accurately reflects the late Mr Ross's testamentary intentions at the time it was prepared and at the time of his death,. They consent to the making of an order validating the 2015 will notwithstanding that it is unsigned. Consequential arrangements for the disposition of what was the relationship property between the late Mr Ross and Ms Orr have also been agreed.

[7]                 I am satisfied on the evidence that, notwithstanding that it was not signed by Mr Ross in the presence of at least two witnesses as required by ss 11(2), (3) and (4) of the Wills Act 2007, the 2015 will accurately reflects Mr Ross's testamentary intentions and should be declared a valid will.

[8]By consent, therefore, I order:

(a)Under s 14(2) of the Wills Act 2007, that the unsigned will prepared for the late Brian Joseph Ross of Oue, Farmer, in June 2105 be declared valid; and

(b)That costs between the interested parties should lie where they fall.

............................................

Toogood J