Mylonas

[2023] NZHC 2449

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-435

[2023] NZHC 2449

UNDER	Section 14 of the Wills Act 2007
IN THE MATTER OF	The estate of MICHAEL JOHN MYLONAS of Tokoroa, Paramedic, Deceased

Hearing:	On the papers
Counsel:	J Cooney for the Applicant
Judgment:	1 September 2023

JUDGMENT OF HARLAND J

As to application without notice

for order declaring document to be a valid Will

[1]                 The application of Leandri Pells for a declaration of validity of a document as the Will of Mr Mylonis has come before me as Duty Judge. It was first dealt with by Grice J (also as Duty Judge) and, in her minute of 15 August 2023, she outlined the background to the application and what is being sought. I do not repeat that here, but adopt the factual and background matters referred to by her in paras [1] to [5] of her minute.

[2]                 Grice J noted in para [6] of her minute that there appeared to be no other difficulties with the application apart from the uncertainty engendered by the division of the one-third of the residue which had been noted in the document to be “dealt with at the discretion of Michelle and the applicant as noted in the document”.

[3]                 By way of completeness, I now set out the basis for Grice J’s concerns and her directions in relation to them:

RE: MYLONAS [2023] NZHC 2449 [1 September 2023]

[6]        Recognising that the residue to be divided is extremely modest and that there appear to be no other difficulties with the application for validity, my sole concern is the uncertainty engendered by the division of the one third of the residue. The provision reads as follows in the law clerk’s handwritten notes:

Residue -1/3 Leandri 1/3 Michelle

1/3 discretion between the two of them.

[7]        The applicant through counsel should file a further memorandum as to the effect of the uncertainty apparent in that division of the last third. A further affidavit may be needed to explain that. Counsel should address that issue in the memorandum and how it should be dealt with by reference to legal principles.

[8]        The further material should be filed on or before 15 September. The matter can then be referred to the duty judge at that time for further consideration.

[4]                 Since Grice J’s direction, two further affidavits have been filed, one by Michelle Mylonas1 the deceased’s sister, and another by the applicant.2 The affidavits appear to mirror each other.

[5]                 In the supplementary affidavits, both the applicant and Ms Mylonas depose that he discussed his intentions as to his residuary estate with both of them prior to his death. Both record his intention that the third share of the residuary estate be used for payment of his funeral costs. The applicant deposes that, under the New Zealand Ambulance Association in respect of which both she and the deceased were employed, the deceased was covered by a funeral insurance which was paid for weekly from his wages. Both deponents consider the deceased had forgotten he had insurance cover when he gave instructions for his Will to be drafted. Both consider that, if he had remembered he had such cover, his intention would have been to leave the whole of his residuary estate to be divided equally between them. Both agree that this third share should be divided equally between them.

[6]                 Counsel also filed a further memorandum as directed.3 Counsel referred to s 28 of the Wills Act 2007 which provides for disposition of property in fractional parts.

1      Sworn 21 August 2023.

2      Sworn 28 August 2023.

3      Dated 29 August 2023.

[7]Section 28 provides:

28   Disposition in fractional parts

(1)   This section applies when—

(a)a will disposes in fractional parts of—

(i)all the will-maker’s property; or

(ii)the will-maker’s residuary estate; and

(b)a part fails.

(2)   The failed part goes—

(a)to the part that does not fail; or

(b)if there is more than 1 part that does not fail, to all those parts proportionately.

(3)   Subsection (2) does not apply if the will makes it clear that the will-maker intended a part that fails to be disposed of differently.

[8]                 By virtue of s 28(2)(b), if there is more than one part that does not fail, the failed part goes to those parts proportionately.

[9]                 Counsel also referred to Re Steiner-Joyce.4 In that case, the Court held that three of the four documents sought to be declared to be a valid Will of the deceased, when put together, appeared to be a Will but one of the documents was excluded because it was not dated or signed. Although the bequests referred to were clear, the residue was not mentioned. However, if a partial intestacy was declared, the deceased’s wish that one of her sisters not receive any money would be undermined. The Court held it was sufficiently certain that the deceased wished to bestow a trust power on the applicant when dividing the estate and that it was clear that she and her other sister were to receive substantial portions. Accordingly, the documents were declared to be a valid Will.

[10]            I do not consider this case to be on all fours with Re Steiner-Joyce. However, because the applicant and the deceased’s sister have deposed to divide it equally between them, the outcome is the same irrespective of whether s 28 applies.

4      Re Steiner-Joyce [2018] NZHC 2228.

[11]            Having considered the further affidavits by the applicant and the deceased’s sister, the instructions that were given to the law clerk and the memorandum of counsel, I am satisfied that the written Will instructions can be declared to be a valid Will. I am satisfied that it is sufficiently clear that the residue is and will be divided equally between the applicant and the deceased’s sister, which is consistent with how the deceased wished to deal with the remaining two thirds of his estate.

[12]I make the orders sought in the application.

Harland J