Estate of Strude

[2016] NZHC 1627

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1600 [2016] NZHC 1627

IN THE MATTER

of the Wills Act 2007

AND

IN THE MATTER

of the Estate of ALBERT FREDERICK MICHAEL STRUDE, late of Takanini, Retired, Deceased

AND

IN THE MATTER

of an Application by ROBERT JOHN BURTON

Applicant

On the papers
Counsel:	A Gilchrist for the Applicant
Judgment:	19 July 2016

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 19 July 2016 at 10:00 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Estate of AFM Strude [2016] NZHC 1627 [19 July 2016]

[1]      Albert Frederick Michael Strude died at Auckland on 16 May 2015.

[2]      Mr R J Burton, a solicitor, first met Mr Strude about six weeks prior to his death when Mr Strude sought his advice, having been informed by his doctor that he had only some four or five weeks to live.  Mr Strude told Mr Burton that he had no will and wanted to tidy up his affairs before his death.  He said he did not have any children; that he had never married; and had never had a de facto partner or entered into a civil union.  He said he had no brothers or sisters nor any close relatives, but that he wished to leave his estate to various charities.

[3]      Based on the instructions Mr Burton then received, he drafted a will which he hand-delivered to a letterbox at the address in Takanini which Mr Strude had given to him.  Mr Burton deposes that he was satisfied that the will he prepared faithfully accorded with Mr Strude’s testamentary intentions.

[4]      On 6 May 2015 a friend of Mr Strude informed Mr Burton that Mr Strude had been rushed to hospital.  Mr Burton visited Mr Strude on 7 May 2015 but says that because of Mr Strude’s poor condition he was not in a position to sign or understand anything.  Mr Strude died without executing the Will.

[5]      The  inquiries  properly  undertaken  by  Mr  Burton  indicated  to  him  that Mr Strude  had  a  pre-deceased  half-sister  who  had  two  sons  and  one  daughter. Mr Burton, having made contact with the daughter, Ms Todd, has been advised that she and her brothers wished to respect Mr Strude’s wishes for his estate to be distributed amongst the named charities.

[6]      The estate is relatively small.   The principal asset is a Takanini property valued at $335,000; there are also a Kiwisaver account with a balance of $8,728.67 and a bank account with a balance of $1,780.00.  The only known liability is funeral expenses.

[7]      I  am  satisfied,  first,  that  the  draft  will  faithfully  records  Mr Strude’s

testamentary intentions and that, notwithstanding that it does not meet the formal

requirements for a valid will, an order should be made under s 14 of the Wills

Act 2007 validating it.

[8]      I am also satisfied that it is appropriate for this proceeding to be commenced by way of originating application and that there is no need for any party to be served. Accordingly I make the following orders:

(a)      The  Court  permits  the  bringing  of  the  application  by  way  of originating application.

(b)The Court  gives permission for Robert John Burton to act in the proceedings.

(c)       Service of the application shall be dispensed with.

(d)The Court declares that the will of the late Albert Frederick Michael Strude, a copy of which is annexed to the Order, is a valid will under the Wills Act 2007.

……………………………

Toogood J