Simunovich HC Auckland CIV-2011-404-005914 [2011] NZHC 1538 (17 October 2011)

Last Updated: 17 November 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2011-404-005914}

UNDER Section 14 of the Wills Act 2007

IN THE MATTER OF BRANKA SIMUNOVICH of Auckland, Deceased

AND IN THE MATTER OF An application by IVAN SIMUNOVICH of Croatia by his lawfully constituted attorney in New Zealand PETER JOHN SIMUNOVICH, JADRANKA BORIC and DUSANKA MOULTON

Hearing: On the papers

Judgment: 17 October 2011 at 3:00 PM

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 17 October 2011 at 3:00 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date.............................

Solicitors: Jackson Russell, P O Box 3451, Auckland

_{Fax: [phone] – Email: [e-mail]}

SIMUNOVICH HC AK CIV-2011-404-005914 17 October 2011

[1] Branka Simunovich died on 5 June 2011 without a will that complies with s 11 of the Wills Act 2007. After her death, a document was located which, from its contents and from other apparently contemporaneous documents and from the circumstances, appears to express Ms Simunovich’s testamentary intentions.

[2] Ms Simunovich’s husband (by his New Zealand attorney) and her daughters have applied under s 14 of the Wills Act 2007 declaring that a document is the valid will of Branka Simunovich. The applicants are the parties who would benefit upon Ms Simunovich’s intestacy. Those parties who would benefit in the event of the application being granted have been advised of the application.

[3] Under s 14 of the Wills Act 2007 the High Court may declare a document to be a valid will if the prerequisites of s 14(1) are fulfilled and the Court is satisfied that the document expresses the deceased person’s testamentary intentions:

14 High Court may declare will valid

(1) This section applies to a document that—

(a) appears to be a will; and

(b) does not comply with section11; and

(c) came into existence in or out of New Zealand.

(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.

[4] The circumstances in which the document was located are detailed in the affidavit of Karen Maree Adam, who was Ms Simunovich’s personal assistant. She knew Ms Simunovich well and knew her signature, having seen her sign her name numerous times. After Ms Simunovich’s death, Ms Adam located three documents at Ms Simunovich’s home. The first was in an email format and appeared to be

addressed directly to Ms Adam. The document includes a request to Ms Adam to try and “fill my last will”. The second document that Ms Adam located was one entitled “MY LAST MEASGE”. This was a typed document in a Microsoft Word format but there is a handwritten signature at the foot of the document. The contents of the document make it clear that this was intended to convey Ms Simunovich’s testamentary intentions. It refers, amongst other things, to funeral arrangements and identifies bequests that she wished to make. The third document that Ms Adam located was a handwritten note. There was no addressee named but, once again, it bore Ms Simunovich’s signature at the foot of it. Its contents made reference to various personal matters and were consistent with an intention that the previous document “MY LAST MEASGE” be viewed as a testamentary intention.

[5] I am satisfied from the contents of the “MY LAST MEASGE” document that this is a document made by Ms Simunovich which appears to be a will but which does not comply with s 11 of the Wills Act 2007 because, although it was signed by the deceased, it was not witnessed. I am satisfied that the document came into existence in New Zealand, most likely at Ms Simunovich’s residence. I also note that the first document (the email to Ms Adam) was dated 4 June 2011, which would have been either the day of or the day before Ms Simunovich’s death.

[6] I am satisfied that an order should be made declaring the “MY LAST MEASGE” document a valid will and I therefore make the following orders:

(a) A declaration that the “MY LAST MEASGE” document is valid

under s 14 of the Wills Act 2007; and

(b) The costs of and incidental to this application be paid out of the

_{deceased’s estate.}

P Courtney J