Prasad

[2022] NZHC 2520

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-746

[2022] NZHC 2520

IN THE MATTER

Section 14 of the Wills Act 2007

AND

IN THE MATTER OF

An application by Praneet Roneel Prasad of Queensland, Australia for an order validating the will of Rumendra Prasad

of Auckland

Hearing:	On the papers at Auckland
Judgment:	5 October 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 5 October 2022 at 3 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

Martelli McKegg Lawyers, Auckland (T Orr)

Application by Prasad (Wills Act 2007) [2022] NZHC 2520 [5 October 2022]

[1]    Praneet Roneel Prasad has applied for an order under s 14 of the Wills Act 2007 (“the Act”), seeking to validate a document as the will  of  his  late  father,  Rumendra Prasad.

[2]    Rumendra Prasad died at the age of 57 on or about 27 May 2021 and the document purporting to be a will and dated 5 September 2017 (“the document”) does not comply with s 11 of the Act in that only one person, Narendra Prasad, purported to witness the will.

Legal principles

[3]    Section 14 of the Act provides that the High Court can declare a document that appears to be a will, but which does not comply with s 11, to be a valid will if it is satisfied that the document expresses the deceased person's testamentary intentions.

[4]    The principles to be applied in the present context are now well established. The onus rests on the applicant to satisfy the Court on the balance of probabilities that the document propounded as the last will of the deceased reflects the testamentary intentions of the deceased.1 The Court has considered s 14 to be a remedial provision,2 inviting a robust approach, where the Court is entitled to take into account any evidence that may assist in determining whether the document expresses the testamentary intentions of the deceased.3

[5]    Where there is evidence of a deceased person’s intentions, it is better to give effect to those intentions than to give preference to the disposition that would otherwise apply. The Court is required to focus on substance and intention rather than form, to ensure that a person who in good faith sets out to express testamentary intentions does not have those thwarted by technicalities.4

1      Re Kim [2022] NZHC 2023 at [5], citing Kirner v Falloon [2015] NZHC 1873 at [20].

2      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].

3 At [15].

4      Re Estate of Wong [2014] NZHC 2554 at [24].

The application

[6]    In support of his application Praneet Prasad has adduced the following evidence:

(a)He has attempted to contact Narendra Prasad with a view to obtaining his evidence about the circumstances in which Rumendra Prasad executed the document but confirms he has had no response to his letter.

(b)He has confirmed that the sole executor identified in the document, Mahendra Prasad, has irrevocably renounced his executorship.

(c)He has obtained consent to his application from both his cousin, Kritesh Prasad, who was legally adopted by Rumendra Prasad in or about 2001 in order to live in New Zealand, and also his mother (and Rumendra Prasad's ex-wife), Pratima Devi.

(d)He has confirmed that apart from himself and Kritesh Prasad, Rumendra Prasad had no other children, and that he considers the document expresses Rumendra Prasad's testamentary intentions.

(e)No other wills or testamentary documents have been located.

[7]    More broadly, Praneet Prasad has provided information to indicate that not only did he and his father have a good relationship despite living in different countries but also that there were strong indications he intended to provide for Praneet Prasad prior to the preparation of the document, including asking for Praneet’s details “sufficient for the WILL” in May 2016. Furthermore, it is clear that Rumendra continued to act consistently with such an intention having gifted $100,000 to Praneet in March 2021, shortly before Rumendra’s death.

[8]    Taking these various matters together I am satisfied it is not necessary to serve the application on any other person and that the document represents the testamentary intention of Rumendra Prasad. In the circumstances I therefore declare the document

to be the valid will of Rumendra Prased and make orders in terms of the draft orders previously filed.

Powell J