Burgess - [2025] NZHC 1925

IN THE HIGH COURT OF NEW ZEALAND REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-0000329

[2025] NZHC 1925

IN THE MATTER of the estate of Heather Muireen Burgess late of Christchurch

AND IN THE MATTER

of Part 27 of the High Court Rules

BETWEEN

MICHAEL JAMES BURGESS AND

MATTHEW ALLAN RICHARD BURGESS

as named executors and trustees of Heather Muireen Burgess

Applicants

Hearing: On the papers

Appearances:

J I Taylor and N R Harvey for Applicants

Judgment:

15 July 2025

JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE BURGESS [2025] NZHC 1925 [15 July 2025]

[1] Heather Muireen Burgess (Heather) died on or about 8 November 2024. She is survived by her two children—Michael James Burgess and Matthew Allan Richard (the applicants), her two sisters—Glynyss Ann Lawrence Jones and Lorna Christine May, and her grandchild—Michael’s son, Logan Chisholm.

[2] Heather’s most recently executed will was dated 16 August 2007 (executed will).

Uncertainty as to testamentary intention

[3] Two documents evidence that at the time of her death, Heather was in the process of drafting a new will:

(a)A document dated 17 October 2024 purporting to be a will, which is signed by Heather with one witness. This first draft is incomplete and does not conform with the requirements of s 11 of the Wills Act 2007 (first draft); and

(b)A draft will dated November 2024 which was prepared by her lawyers at Wynn Williams and sent to Heather under cover of an email dated 25 October 2024, and subsequently annotated by Heather. Again, this draft is incomplete and does not conform with the requirements of s 11 of the Wills Act (second draft).

(together, the draft wills)

[4] The executed will, as well as the first draft and second draft, purport to cancel all earlier wills. The material differences are as follows:

(a)The executed will does not provide for any gifts, the estate is simply to be divided between Michael and Matthew equally.

(b)The first draft provides:

(i)that Heather’s house, and all its contents, be shared equally between Michael and Matthew. It does not state how the remainder of the residue is to be distributed;

(ii)an unspecified sum to be gifted to Glynyss and Lorna;

(iii)an unspecified sum to be held in trust Logan until he reaches an unspecified age; and

(iv)all motorcars owed by the estate to be gifted to Logan but held on trust by Michael until he is of age to obtain a full driver license and Michael considers him capable of driving responsibly.

(c)The second draft provides:

(i)$10,000 each be gifted to Glynyss and Lorna;

(ii)$50,000 be gifted to Logan;

(iii)any vehicle owned by the estate to be gifted to Michael but with the wish that any vehicle subject to that gift be ultimately transferred to Logan, conditional on Logan obtaining a valid driver license and being of an age or maturity level where he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burgess

Details

AGLC: Burgess [2025] NZHC 1925
Case: [2025] NZHC 1925
Decision Date: 15 July 2025

CaseChat Overview and Summary

The case involves the estate of Heather Muireen Burgess, who passed away on or around November 8, 2024. Her two children, Michael James Burgess and Matthew Allan Richard Burgess, are the named executors and trustees. Heather's estate is contested due to the existence of an executed will dated August 16, 2007, and two incomplete draft wills dated October 17, 2024, and November 2024. The executed will provides for an equal division of the estate between Michael and Matthew, whereas the draft wills include additional beneficiaries and provisions. The applicants seek to honor Heather's final wishes through a deed of family arrangement that aligns with the second draft will. They request probate of the executed will in solemn form, acknowledging the uncertainty regarding the validity and execution of the draft wills.

The primary legal issue before the court was whether the application for probate could be treated as a without notice application for probate in common form, given the compromise reached by all potential beneficiaries. The applicants argued that Rule 27.8 of the High Court Rules allows for such a compromise, and the court should grant probate in common form rather than solemn form. The court considered the authorities, the affidavits filed, and the fact that there was no evidence suggesting issues with Heather's testamentary capacity. It was also noted that the estate distribution would be the same regardless of which will the court grants probate to, and that allowing evidence by affidavit would reduce time and expense for all parties involved.

The court found that treating the application as a without notice application under Rule 27.4 and allowing evidence by affidavit was appropriate due to the uncontested nature of the probate application, the lack of challenge to testamentary capacity, and the compromise reached by all potential beneficiaries. The court granted probate in common form for the executed will of Heather Muireen Burgess dated August 16, 2007.

The final order of the court is that the application for probate in solemn form be treated as a without notice application under Rule 27.4, and that the evidence be given by way of affidavit. The application for probate of the will of Heather Muireen Burgess dated August 16, 2007, is granted in common form.

Orders