Sorensen v Sorensen

[2019] NZHC 2787

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2019-406-10

[2019] NZHC 2787

BETWEEN

LONE BIRGITH MELLON SORENSEN

Plaintiff

AND

LONE BIRGITH MELLON SORENSEN, FREDERIK MELLON SORENSEN and JOHNATHAN MELLON SORENSEN

Respondent

Teleconference:

29 October 2019

Counsel:

M J Radich for Plaintiff

F G Gradwell for Respondents

Judgment:

30 October 2019

JUDGMENT OF CHURCHMAN J

[1]                  The plaintiff, in her capacity as the intended executrix and trustee in the estate of the late Erik Tony Sorensen (the deceased) has made application to the Court for Probate in Solemn Form.

[2]                  The respondents are the trustees of a family trust established by the deceased for the benefit of his wife and children in New Zealand.

[3]                  Persons required to be served were the three children of the deceased by his first marriage.  They are all adult and all reside in Denmark.   Their names are   Marie Brix, Jonas Sorensen and Kristian Damgaard.

[4]                  The plaintiff and the respondents were represented by counsel Ms Radich. The persons required to be served being the three children in Denmark were represented by Mr Gradwell.

SORENSEN v SORENSEN [2019] NZHC 2787 [30 October 2019]

[5]                  This application is required because after the deceased had made his Will appointing the plaintiff the trustee and executrix of the Will, he and the plaintiff married.

[6]The deceased died leaving his Will of 30 October 2008 as his only Will.

[7]                  On the same day that the deceased made the Will, the plaintiff executed a Will in similar terms.

[8]                  It is submitted that the Will of the deceased was made in contemplation of marriage and was intended to apply whether or not marriage took place.

[9]                  The plaintiff seeks an order that the Will was not revoked by marriage in terms of s 18(1) of the Wills Act 2007 and that s 18(3) applies, as well as a grant of probate. The plaintiff also seeks an order declaring that the trust’s costs be paid out of the estate.

[10]              The three children in Denmark represented by Mr Gradwell are beneficiaries under the Will.

[11]              Counsel for the plaintiff, the respondent and the persons required to be served filed a joint memorandum dated 11 October 2019. That memorandum records that the respondents and the persons required to be served (the three children in Denmark) agree to the orders sought by the plaintiff.

[12]              By consent, this matter was heard by way of a telephone link. The Court, being satisfied that this is an appropriate case to grant the orders sought, and that the three children in Denmark, having been served and instructed counsel, agree to those orders. I hereby make the following orders by consent:

(a)an order that the Will of 30 October 2008 was not revoked by the deceased’s subsequent marriage to the plaintiff; and

(b)a grant of probate to the plaintiff, Lone Birgith Mellon Sorensen of Havelock, farmer.

[13]              The Court also makes an order declaring that the trust’s costs in relation to this application shall be paid out of the estate of the deceased.

Churchman J

Solicitors:

Radich Law, Blenheim for Plaintiff

Brandons, Wellington for Respondents