Estate of Van Den Berg [2013] NZHC 1028 (9 May 2013)

Last Updated: 16 May 2013

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2012-470-000819 [2013] NZHC 1028

UNDER Section 14 of the Wills Act 2007

IN THE MATTER OF the Estate of ANTONIA PATRICIA MARIA VAN DEN BERG (deceased)

AND

IN THE MATTER OF an application by JOHANNA ANTONIA MARIA VAN DEN BERG for a declaration as to the validity of a Will

Hearing: 9 May 2013

Appearances: S Scott for Applicant

D Blair for infant beneficiary

Attendance of CAM Blucher, counsel for adult beneficiary, excused

Judgment: 9 May 2013

_{(ORAL) JUDGMENT OF ANDREWS J}

Solicitors/Counsel:

S Scott, Barrister, Tauranga : DX HP40039

D A Blair, Barrister, Tauranga : PO Box 13284. Tauranga 3141

Insight Legal, Warkworth : DX AA25509 (CAM Blucher}

A Holloway, Tauranga : PO Box 15640, Tauranga 3144

ESTATE VAN DEN BERG (DECEASED) HC TAU CIV 2012-470-000819 [9 May 2013]

[1] By an application dated 14 August 2012, the Court has been asked to make a declaration as to the last valid Will of Antonia Patricia Maria Van den Berg, who died on or about 19 May 2011. The application seeks a declaration either that certain handwritten documents are the deceased’s last valid Will, or that a Will dated 25

September 2009 is the deceased’s last valid Will. In either event, an order is sought

that the applicant be granted probate.

[2] The deceased married in about 2001. She and her husband separated after a few months and did not reconcile. She had one child, who died in April 2009, aged

28 years. She had lived in a de facto relationship with Barry Lane for some ten months prior to her death.

[3] As noted earlier, the deceased had made a Will dated 25 September 2009, some five months after the death of her son. The bulk of the assets comprising the deceased’s estate came from the estate of her son.

[4] The beneficiaries under the deceased’s Will dated 25 September 2009 were:

(a) her nephew, Christopher Kilgour, who was to receive the deceased’s

Mustang motorcar and 50 per cent of the residue of the estate; and

(b) the deceased’s niece Jacqueline Lang, the deceased’s brother Michael Van den Berg, and Tahlea Little, the god-daughter of the deceased’s son, who were each to receive equal shares of the remaining 50 per cent of the estate.

[5] The named executor was the deceased’s sister, Johanna Van den Berg.

[6] In her affidavit in support of the application, Ms Van den Berg said that her sister had struggled after the loss of her son. In the end, she committed suicide. The Police found a notebook with her body, which contained a series of notes about the loss of her son, and instructions as to her funeral and disposition of her property. In particular, there is a note addressed to the executor, as follows:

Jos I have not had the chance to change my Will and as executor of my

Estate Please give Baz Share he’s Been very Patient with me!

I wld like him to have Jayz Mustang But only on the condition he Restore her to her former Glory, keep her Rego and wof Current and have her on Jayz and my Behalf.

[7] I record that in that note after the first reference to “Baz” (the deceased’s partner) the name Chris (the deceased’s nephew) is crossed out. The references to “Jayz” are to her son, Jay.

[8] There are a further series of pages written by the deceased headed “My Request Baz”. These begin with instructions as to the coffin the deceased wanted, the clothes she wished to be dressed in, the make-up and jewellery she wished to be wearing, and the music to be played at her funeral. These notes continue:

Baz You Get

Mustang

$ in My Bank Account BNZ

+ Chris + Jacks share

K my love!

Michael/Tahlea to get their $25K each

Rest 4 Baz! Please

In that note, the reference to “Michael” is to the deceased’s brother, and the reference to “Jacks” is to the deceased’s niece. This note is signed by the deceased.

[9] Immediately underneath the deceased’s signature are further notes:

Kiwi Saver

Tax etc for Baz

+ funeral

[10] The estate has cash assets of approximately $121,784, excluding the value of the Mustang and another motor vehicle. However, neither of these appear to be of more than modest value.

[11] The application for a declaration has been served on all those persons named in the deceased’s Will and the notes, and on her former husband. The only parties who have taken steps in the proceeding are Mr Lane, the deceased’s former de facto

partner, and the infant beneficiary, for whom counsel has been appointed. There has been no notice of opposition filed. In particular, Mr Lane does not oppose an order being made whereby Tahlea Little and Michael Van den Berg receive fixed bequests of $25,000 each. I note that in each case the amount exceeds the one-sixth share of the estate they would take under the Will dated 25 September 2009.

[12] On behalf of the executor, it was submitted that the overall content of the notes in the deceased’s notebook shows that the deceased had a good understanding of the extent of her estate, and her testamentary intentions – in particular, that she had not had a chance to change her Will.

[13] Under s 14 of the Wills Act, the High Court may make an order declaring a document to be a valid Will if it appears to be a Will, but does not comply with the formal requirements for a Will (as set out in s 11 of the Act), if the Court is satisfied that the document expresses the deceased’s testamentary intentions. As noted by Mackenzie J in his judgment in Re Hickford (deceased), the Court normally requires cogent evidence that the document, in respect of which a declaration is sought,

reflects the deceased’s testamentary intentions.[1]

[14] A handwritten suicide note signed by the deceased was held in Re MacNeil to be a valid testamentary disposition.[2] Counsel also referred me to my own judgment in Re Tutaki, in which I considered an opposed application for an order under s 14 of the Act.[3] In the present case, there is no opposition to an order being made to the effect that the handwritten notes express the deceased’s testamentary intentions, and may thus be held to be a valid testamentary disposition.

[15] The present case has many similarities to that of MacNeil. As in that case, the notes are handwritten, and are in very brief terms. A difference is that in MacNeil the note was headed “This is my Will and Testament”, and it is dated. I am satisfied that that is not a significant difference, which should lead me to conclude that the deceased’s notes do not express her testamentary intentions, and should not

_{be held to be a valid testamentary disposition. I am satisfied that the notes contain}

the deceased’s instructions as to the disposition of her property. It is clear from the notes as a whole that they were intended by her to express her wishes, to be given effect to following her death. I am, therefore, satisfied that the notes meet the requirement of s 8(1) of the Act, in that it is a document which disposes of the deceased’s property.

[16] It is also clear that the deceased’s notes do not comply with the formal

requirements for a Will, as they are set out in s 11 of the Act.

[17] Further, I am satisfied, as I am required to be under s 14(2) of the Act, that

the notes express the deceased’s testamentary intentions.

[18] Accordingly, I am satisfied that the notes create a valid testamentary disposition where:

(a) the infant beneficiary, Tahlea Little, is to receive a fixed bequest of

$25,000;

(b) the deceased’s brother, Michael Van den Berg, is to receive a fixed bequest of $25,000; and

(c) the deceased’s de facto partner, Barry Lane, is to receive the residue

of the deceased’s estate.

[19] I therefore make an order that the deceased’s notes are the last valid Will of the deceased, Antonia Patricia Maria Van den Berg, in the terms set out in the draft Grant of Probate provided to the Court, subject to an amendment to paragraph 2 of the Order, which I will set out shortly. Probate is granted to the applicant.

[20] I accept the submission by Mr Blair, counsel for the infant beneficiary, that it is appropriate that I direct, pursuant to s 64 of the Trustee Act 1956, that the bequest to Tahlea Little is to be paid to her parents, Patricia Phillips and Cameron Little, to be held by them and invested upon her behalf and for her benefit, until such time as such reaches the age of 18. Paragraph 2 of the draft probate is to be amended, accordingly.

[21] With respect to costs, I direct that the costs of counsel for the infant beneficiary, be met from the residue of the estate. The costs of solicitor and counsel for the estate will be met from the estate in the ordinary way.

[22] I direct that the notebook is to be returned to counsel for the executor, for

_{return to the deceased’s family.}

Andrews J

---

[1] _{Re Hickford (deceased) HC Napier, CIV-2009-441-369, 13 August 2009 at [11].}
[2] _{Re MacNeil (deceased) HC Timaru, CIV-2008-476-612, 28 September 2009.}
[3] Re Tutaki (deceased) HC Hamilton, CIV-1010-419-1208, 13 May 2011.