In the District Court
AUCKLAND / TĀMAKI MAKAURAU Registry
No:
Under the: Law Reform (Testamentary Promises) Act 1949 No. 33 and Wills Act 2007 no. 36.
In the matter of succession.
Between: PERSONA 1
(plaintiff)
And: The Estate of Persona 2
(defendant)
Statement of claim
Filed by Persona 1, the Plaintiff in person.
The plaintiff claims:
Background to cause(s) of action:
Plaintiff is a male adult of sound mind and a resident of Auckland. He is the nephew of the late Persona 2. Around November 2018, Plaintiff moved in with Persona 2 after conflicts with his parents. The Plaintiff is a family member Persona 2 and was taking care of her from when he moved in with her up until recently when 24-hour carers were put in place.
The Plaintiff did his best in trying to cater for the wants and needs of the late Persona 2. This is considering that he as on her own as well as the family dynamics. The Plaintiff and the deceased were close as compared to the rest of the relatives.
The Plaintiff was taking care of the late Persona 2 for 24 hours a day solo before she entered hospital in May. There are a lot of things that the Plaintiff disagrees with in the deceased’s PPPR application, but the Plaintiff is really tired from the job, and now because the deceased some private carers in place, and Persona 2 talked with the deceased prior to her death. Further, the Plaintiff is of the opinion that being the family caregiver is no longer his job. He claims that it took up his whole life during that time,
and he is currently trying a readjust and focus on my consulting business in the advertising sector of the heating & air conditioning field, as well as my work in mobile applications.
During the hospital period at one stage, the late Persona 2 kept complaining so often about her care that the Plaintiff felt it was necessary to record it at times, but there are many complaints about hospital staff that caught the Plaintiff off-guard, which he didn’t get on recording. The late Persona 2 also complained about getting her hair grabbed
by nurse staff, being aggressively shaken by the shoulders when she couldn’t speak properly. The Plaintiff also said in the family meeting that she had been complaining about the bed rails not being put up, to
which 2 weeks later she fell off the bed badly, she says its due to the bed rails not being put up. However, the management of the late Persona 2 has been an ongoing workload for myself, and the Plaintiff is thankful that it is now covered, as it has been a huge workload for just one person over the past 1.5-2 years.
At one stage the Plaintiff was going to apply for property manager and welfare guardian, but he no longer wants to do it. He did not agree with how much the late Persona 2 was paying for her full-time carers (crazy
overpriced) but it is not my business anymore. Persona talked to the latePersona 2 and suggested that he would be the property manager and welfare guardian, which as a doctor, family member, and also someone with previous experience taking on these responsibilities.
The late Persona 2 had always promised the Plaintiff things, yet the rest feel entitled to what she promised him. This has made the Plaintiff feel
feel threatened and “in the way”. He has also since become disinterested in the matters of promises and property as a result. However, the Plaintiff now seeks to have access to the will and also be paid the sum that the deceased promised him as a token for caring for her.
The Plaintiff claims that taking care of the deceased during her later stages was hard for him, and his family does not get along. Further, the Plaintiff claims that he does not trust his family, and the deceased had provided a sanctuary for him and his cousin, who both don’t get along with most of the family, he only get along with the late Persona 2
Moreover, the late Joan Oxner had stated that she wanted to aid the Plaintiff instead of the other family members since they are expensive. This is compared to the $7000+ per week financial abuse by coercion, towards Persona 2’s estate, losing around $200,000 to Persona 2’s estate in less than half the time that the Plaintiff was caring for Persona 2 24/7. This is normal based on a comparison between 2 txs that totalled $80,000 to the size of Persona 2 estate, and the duties undertaken for Persona 2. Further, the Plaintiff states that the preceding monetary arrangement was a private matter between him and the deceased. Hence the same was a gift that should be paid out of the deceased’s estate prior to distributing the property.
Cause(s) of action:
- Allegations that the will drafted by the late Persona 2 is invalid and denial of access to the same by the Defendant.
The will left behind by the late Persona 2 is valid as per Section 11 of the Wills Act 2007. The Section expressly outlines the requirements of a valid will to include:
- A will must be in writing.
- A will must be signed and witnessed as described in subsections (3) and (4). (3)
- The will-maker must—
- sign the document; or
(b) direct another person to sign the document on his or her behalf in his or her presence.
- At least 2 witnesses must—
(a) be together in the will-maker’s presence when the will-maker—
(i) complies with subsection (3); or
(ii) acknowledges that—
(A) he or she signed the document earlier and that the signature on the document is his or her own; or
(B) another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
(b) each sign the document in the will-maker’s presence.
- As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:
- that he or she was present with the other witnesses when the will-maker—
(i) signed the document; or
(ii) acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or
(iii) directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or
(iv) acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and
- that he or she signed the document in the will-maker’s presence.
Accordingly, the Plaintiffs contends that the deceased’s will is consistent with the preceding requirements of a valid will hence entitled to access the same.
- Denial of the Plaintiff’s entitlement to the sum left to him by the late John Mary Oxner from the Defendant.
Section 33 of the Wills Act entitles the Plaintiff’s to receive the gift from the Defendant. It expressly provides that:
a gift by the testator to any of the testator’s issue who has died as described or has already died in the testator’s life time (donee) takes effect under section 33 if any of the donee’s issue is living at the testator’s death and is not a person who has died as described.
Thus, the Plaintiff’s gift from the late Persona 2 for taking care of her during her sickness should be paid out of the Defendant. The gift totals up to a sum of 110, 000 NZD. This should be done before the property in the will is distributed.
Application for relief
On the above basis the plaintiff seeks the following relief or remedy:
- To have the will declared valid as per Section 11 of the Wills Act 2007.
- To have access to the court documents for the grant of the applicant’s aunt PPPR case FAM-2020-004-000690.
- To have 110, 000 NZD being the total sum granted by the late Persona 2, paid out of the deceased estate.
Date: 14th April 2022
Signature: (sign here)
Name: Enter your name. If you are signing on behalf of an organisation, also state your role within the organisation and state whether you are an authorised signatory
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