Syred

[2016] NZHC 2338

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001638 [2016] NZHC 2338

UNDER

Part 19 of the High Court Rules and s 14

Wills Act 2007

IN THE MATTER

of an application that a document be declared the will of the late BRADLEY MARK SYRED

GLEN DAVID SYRED Applicant

Hearing:	On the papers
Judgment:	4 October 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 4 October 2016 at 12 noon

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

SYRED [2016] NZHC 2338 [4 October 2016]

[1]      Bradley Mark Syred died on 2 January 2016 without leaving a valid will.  He had no children at the time he died and had been separated from his wife for some three years.  In the event of an intestacy his assets would be distributed between his parents, Glen and Naomi Syred, and his former wife, Claire Gibson.  However, Mr Syred’s family found an unsigned document among his possessions which was described as “last will and testament of Bradley Syred”.  His father has applied for an order validating that document as a will under s 14 of the Wills Act 2007.  Ms Gibson has consented to the application.

[2]      Under the Wills Act 2007 a valid will is one that is made in writing and signed and witnessed in the prescribed matter.1     Section 14, however, allows this Court to make an order declaring a document that appears to be a will but does not comply  with  the  formal  requirements  to  be  a  valid  will  “if  satisfied  that  the document expresses the deceased person’s testamentary intentions”. It is uncontroversial that the expression “is satisfied” does not connote any onus of proof;

it  merely indicates  the  state  of  the  Court  coming  to  a  judicial  decision  on  the evidence.

[3]      The evidence shows that Mr Syred did in fact make a will sometime in late

2013, which would have been soon after his separation from Ms Gibson.  That will has not been located, despite inquiries being made. However, the witnesses to the will have provided affidavits. One of the witnesses, Mr Wood, briefly read the will when he witnessed Bradley Syred executing it.  Mr Wood is a close friend of Bradley Syred and was familiar with his personal circumstances.  He recalls commenting to Bradley  Syred  at  the  time  he  witnessed  the  will  “So  it’s  basically  just  your immediate family and excludes Claire?”, which Bradley confirmed.

[4]      The document that is sought to be validated was located in Bradley Syred’s bedroom by his uncle, Peter Syred, and brother, Michael Syred. It records the fact that Mr Syred is separated from his former wife and leaves all of his assets to the Life Trust. A document in the same terms was found on Bradley Syred’s computer. Among the other documents found in the bedroom was the trust deed for the Life

Trust. The discretionary beneficiaries of that trust are Bradley, his parents, siblings

1      Wills Act 2007, s 11.

and any trust of which they had been a beneficiary except the Syred Trust. The Syred Trust was a trust that, on the evidence, had been settled by Bradley Syred and Claire Gibson in 2010 and the discretionary beneficiaries of which included Claire Gibson.

[5]      In these circumstances I am satisfied that no current will exists but that the undated  document  that  is  the  subject  of  this  application  reflects  Mr Syred’s testamentary intentions.  Because there is no opposition from Ms Gibson there will be no adverse effect on any affected party if an order validating the will were to be made.   I accordingly make an order under s 14 validating the document that is exhibit A to the affidavit of Glen David Syred as a valid will.