Estate of White

[2016] NZHC 1214

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-156 [2016] NZHC 1214

UNDER	the Wills Act 2007
IN THE MATTER OF	the Estate of GRAHAM JOHN WHITE
BETWEEN	SASITHORN JARISU-WHITE Applicant

Hearing:	(On the Papers)
Appearances:	C N Ericsson for the Applicant
Judgment:	8 June 2016

JUDGMENT OF NICHOLAS DAVIDSON J

Application to validate document as a last Will

[1]      Mr White died at Port Chalmers on 30 July 2014.

[2]      His  second  wife,  Ms  Sasithorn  Jarisu-White  applies  for  validation  of  a document dated 11 October 2011, (Schedule to this judgment).   Ms Jarisu-White says that this document, which leaves Mr White’s estate to her absolutely, reflected what he told her was his intention.

[3]      In order to declare a Will valid, the Court must be satisfied that the document appears to be a will, does not comply with section 11 of the Wills Act 2007 (the

Act), and came into existence in or out of New Zealand.1

1      Section 14(1) Wills Act 2007.

Estate GJ White [2016] NZHC 1214 [8 June 2016]

[4]      The document  does  not  comply with  s  11  as  there is  only one witness, contrary to  s 11(4) of the Act,  and  the  witness  who did  sign  has  not  made an attestation statement in terms of s 11(5).

[5]      Section 14 further provides:

(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.

Evidence

[6]      I am satisfied that the threshold s 14(1) requirements of the Act have been met.   That leaves the question of whether the document reflects Mr White’s last testamentary intent.

[7]      There is a wealth of evidence to support the conclusion that the document expresses  such  intent.   A relevant  observation  is  that  without  validation  of  the document, Mr White will have died intestate.  The Estate is worth some $135,000 and Ms Jarisu-White is the only person who would then take a beneficial interest in the Estate.   Ms Jarisu-White says that she was told by Mr White that she was to receive Mr White’s entire estate and that everything had been “taken care of”.  The document for validation matches this expressed intent.

[8]      All important documents in the lives of Mr White and Ms Jarisu-White were kept in a cashbox in the shop they ran at Port Chalmers.  Ms Jarisu-White found the document and saw that it set out Mr White’s wishes as she had been told.   She looked for an earlier Will but has not found one.

[9]      Further, Mr Neale McMillan of Port Chalmers says that on 20 October 2011

Mr White asked him to witness his Will.  He told Mr White that two witnesses were required at law but Mr White was insistent that was not necessary.  He saw him sign the Will reflected in the Schedule and he then signed as witness in the presence of the deceased.

[10]     The children of the deceased, Shalin White and Jemadar White consent to the application for validation.   There was  no de facto partner  who may have been entitled to an interest.  There is no evidence of any parent or other child of Mr White alive, after enquiry of the Registrar-General of Births, Deaths, Marriages and Citizenship.

[11]     While not essential evidence, Mr White’s sister said that she saw him in Port Chalmers in mid- 2013.  He knew he was unwell and told her that he had made a Will and left everything to Ms Jarisu-White.  He explained why.  Ms White says that her brother believed he had done everything to ensure that the Will was valid.  The document sought to be validated corresponds with what Mr White told Ms White.

Disposition

[12]     In this instance, there is no doubt whatsoever that the document sought to be validated expresses Mr White’s last testamentary intentions, and complies in all respects with the requirements for validation under ss 11 and 14 of the Act.

[13]     The original of the document copied as the Schedule to this judgment is declared valid as the last Will of Graham John White who died on 30 July 2014.

[14]     Costs  are  reserved,  if  necessary.  The  reasonable  costs  of  the  application should  be  paid  from  the  Estate,  which  in  practical  terms  means  little  because Ms Jarisu-White takes the whole of the Estate after administration costs.  I reserve leave for any order sought by way of administration, should that be necessary.

[15]     If no further orders are sought this judgment should be treated as final.

………………………………………………….

Nicholas Davidson J

Solicitors:

Ericsson Law, Dunedin

SCHEDULE