Hunt v Hunt [2024] NZHC 1376 (28 May 2024)

Last Updated: 12 July 2024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001994 [2024] NZHC 1376

UNDER	the Wills Act 2007
IN THE MATTER AND	of the estate of NEILL HUNT
IN THE MATTER	of an application for probate in solemn form
BETWEEN	PAZ HUNT Applicant
AND	PAZ HUNT Respondent

Hearing:	(On the papers)
Judgment:	28 May 2024

JUDGMENT OF VENNING J

This judgment was delivered by me on 28 May 2024 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

Solicitors: Connell & Connell, Auckland

Rice Craig, Papakura

HUNT v HUNT [2024] NZHC 1376 [28 May 2024]

• [1] Paz Hunt applies for probate of a testamentary document made by the deceased, Neill Hunt, on 7 May 2023 and for related orders that the intended disposition to her in the document is not void under the Wills Act 2007.

• [2] The application was commenced by an originating application accompanied by a statement of claim.

Background

• [3] Neill Hunt died on 28 May 2023. The deceased and Paz Hunt, the applicant, were married on 28 July 2002 and remained living together as husband and wife on a property at Romney Place, Manurewa until his death.

• [4] The deceased and Paz Hunt had no children together but the deceased had five adult children:

(a) Romani Bernadette Pipe;

(b) Sheila Maria MacDonald Bailey;

(c) Avril May Jean Hunt;

(d) Iona Margaret Madigan; and

(e) Stewart Ian Hunt.

• [5] For her part Paz Hunt has three adult children:

(a) Leynard Ducusin Martinez;

(b) Lorelie Martinez Cortez; and

(c) Laraine Cortez Estigoy.

• [6] On 7 May 2023 the deceased said he wished to make a will. Paz Hunt’s daughter-in-law, Gina Martinez, who lived with Leynard Martinez in a small dwelling

on the same property as the deceased and Ms Hunt, looked on line and downloaded a program from LawDepot.com which provided a series of questions. The deceased instructed Ms Martinez with his answers to the various questions. The website then produced a will document which was read to the deceased. At the same time as reading it to him Ms Martinez held the iPad in front of him so he could see and follow the various paragraphs. The deceased then signed his signature using an electronic Apple pencil on the iPad. Approximately two to three days later, before the trial period for the website expired, Ms Martinez printed the will document out. The signature of the deceased and the signature of Paz Hunt and Ms Martinez as witnesses were recorded.

• [7] The will provided for a specific bequest of the cash in the deceased’s bank account to the deceased’s oldest daughter, Romney (sic) Pipe, and then provided for the entire residue of the estate to be transferred to his widow Paz Hunt.

• [8] At the time of making the will the deceased owned their home at 7 Romney Place, Manurewa, the home he and Paz Hunt had lived in from the time they married. The deceased and Ms Hunt also had a joint bank account and, in addition, both had separate bank accounts in their own names.

• [9] Although the will document is incomplete in part in that one of the provisions provides for details of children which remains uncompleted, it does effectively dispose of the deceased’s estate. It also contains a severability provision.

• [10] However, the manner of execution of the document falls foul of s 13 of the Wills Act:

13 Witnesses affected by dispositions made to them

(1) A disposition of property in a will is void if—

(a) the disposition is to a witness; or

(b) the disposition is to a witness’s wife, husband, civil union partner, or de facto partner; or

(c) the property would go to a person claiming under a person described in paragraph (a) or (b).

(2) Subsection (1) does not apply if—

(a) the will has at least 2 witnesses who are not described in the subsection; or

(b) the disposition is the repayment of a debt to a person described in the subsection; or

(c) all the persons who would benefit directly from the avoidance of the disposition—

(i) consent in writing or electronically to the distribution of the property; and

(ii) have legal capacity to give consent; or

(d) the High Court is satisfied that the will-maker—

(i) knew and approved of the disposition; and

(ii) made the disposition voluntarily.

• [11] The disposition to Paz Hunt of the residue of the estate is prima facie void under s 13(1). The gift over to Leynard Martinez, Paz Hunt’s son, would also be void as the will was witnessed by Gina Martinez.

• [12] For that reason, Paz Hunt applied for an order pursuant to s 13(2)(c) and/or (d) of the Wills Act.

• [13] Initially the children of the deceased opposed the application. A statement of defence and affidavits in opposition have been filed. The matter has been called before the Court on a number of occasions.

• [14] The parties have now responsibly reached an accommodation and filed a joint memorandum confirming that agreement has been reached on the following terms:

(a) The deceased’s children would not oppose probate being granted in respect of the testamentary document;

(b) That they would not make any applications to the Court making claims against the estate under either the Family Protection Act or the Law Reform Testamentary Promises Act or otherwise;

(c) That there is agreement as to a monetary settlement between them and the Applicant which sets aside the specific bequest in paragraph 7 but reaches a lump sum settlement with the deceased’s children to be divided between them as they may agree between themselves;

(d) That notwithstanding the fact that she witnessed the testamentary document, Paz Hunt shall be the residuary beneficiary of the deceased’s estate;

(e) In the alternative if the testamentary document is not a valid will, probate cannot be granted then they are not opposed to letters of administration being granted in favour of the Applicant and the same settlement as between the parties be implemented (mutatis mutandis).

(f) The deceased’s children will discontinue their opposition to the Application forthwith with no issue as to costs.

• [15] As counsel also noted in that memorandum ongoing litigation between the parties would not be to anyone’s benefit. The deceased and Ms Hunt were married for a long period of time. The parties are of limited means. The applicant, Paz Hunt, is herself a superannuitant but still working as a cleaner at Sky City and has limited means.

Analysis

• [16] The will is a valid document under s 11 of the Wills Act. It is in writing. It is witnessed and the deceased, the will maker, signed the document. It does not require an order validating it under s 14.

• [17] I am satisfied that the disposition to the applicant Paz Hunt is not avoided on the basis of either s 13(2)(c) or s 13(2)(d). The adult children of the deceased who would benefit directly from the avoidance of the disposition to Ms Hunt have, through counsel, consented in writing to the relief sought. Further, and in any event, the Court is satisfied on the evidence of Paz Hunt and Ms Martinez, that the deceased knew and approved of the disposition in favour of his wife Paz Hunt and made the disposition voluntarily. For those reasons s 13(1) does not apply to avoid the disposition of the property at Romney Place to Paz Hunt.

Probate

• [18] As noted the applicant also sought a grant of probate. That is a separate application which generally comes within Part 27 of the High Court Rules. The application requires proof of death and an undertaking by the executor to faithfully execute the will.
• [19] I accept on the file there is sufficient evidence of the death of the deceased. However, the applicant Paz Hunt should still formally undertake to faithfully execute the will.

Result/orders

• [20] The notice of opposition to the application is discontinued.

• [21] I declare that the signed copy of the will document dated 7 May 2023, a copy of which is annexed to the affidavit of Gina Martinez sworn on 1 August 2023, is a valid will under s 11 of the Wills Act 2007.

• [22] I order under s 13(2)(c) and (d) of the Wills Act 2007 that s 13(1) of that Act does not apply to any disposition of property in the will that is made to the applicant Paz Hunt.

• [23] Probate of the will document is to be granted to the applicant, Paz Hunt. This order is to lie in Court until the applicant Paz Hunt files an affidavit in this proceeding undertaking that she will faithfully execute the will in its terms.

• [24] Leave is reserved in the event any issues arise in relation to implementation of the orders.

Addendum

• [25] Although the joint memorandum of counsel provided for an overall settlement between the parties that will be a matter for the parties. The Court cannot make orders in relation to that overall settlement in the context of these applications.

Costs

• [26] There is no issue as to costs between the parties. The costs of the application are to be met from the deceased’s estate.

Venning J