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 can drive responsibly; and

(iv)an unspecified amount of money in Lorna’s house to be returned to the estate or “boys”. This relates to a $12,000 interest-free loan given to Lorna by Heather on 13 June 2016.

(d)The executed will and the second draft both appoint Michael and Matthew as the executor and trustee of the estate. The first draft appoints Matthew as the sole executor and trustee.

[5]    While minor, there are distinctions between all three which provide differences in how the estate is to be distributed. The beneficiaries of the executed will are Michael and Matthew, whereas the beneficiaries of the draft wills also include Glynyss, Lorna and Logan.

[6]    The applicants, and each of the named beneficiaries of the executed will, the first draft and the second draft wish to honour what they believe are Heather’s final wishes. To do  so,  they  have  entered  into  a  deed  of  family  arrangement  dated 24 April 2025 (DOFA). This replicates the terms of the second draft, that:

(a)Michael and Matthew were to be her executors and trustees;

(b)Glynyss and Lorna are to receive gifts of $10,000 each;

(c)Logan is to receive a gift of $50,000;

(d)any vehicle owned by Heather is to be gifted to Michael, and ultimately transferred to Logan if/when he has a valid driver licence and is of an age or maturity level where he can drive responsibly; and

(e)the residue of the estate is to be transferred to Michael and Matthew as tenants in common in equal shares.

[7]It also clarifies that:

(a)the gift of $50,000 to Logan is to be held on trust by Michael until Logan reaches 30 years of age; and

(b)the interest-free loan given by the deceased to Lorna in 2016 should be forgiven.

Application

[8]    The applicants apply for probate of the executed will in solemn form. They acknowledge that they cannot apply for probate in common form given the uncertainty

as to whether the draft wills are testamentary and there is uncertainty as to due execution. Neither are witnessed in accordance with s 11(4) and the second draft is not executed in accordance with s 11(3). While the first draft may be capable of validation, several of the gifts will likely fail for lack of certainty. The applicants agree that the only document to which probate should be granted is the singular valid will— the executed will.

[9]    The statement of claim pleads that the estate should be distributed in accordance with the collective understanding of the applicants and the named beneficiaries, as recorded in the DOFA.

[10]   Despite seeking probate in solemn form, the applicants apply for directions under r 27.8 of the High Court Rules 2016 that:

(a)the application for probate be treated as a without notice application for probate on common form; and

(b)that evidence in the application be given by way of affidavit.

[11]   The applicants have filed affidavits in support from Michael, Matthew, Lorna and Glynyss.  Each has  had the opportunity to obtain legal advice.  Logan is only  13 years old. There is agreement the proposal is the most favourable to Logan.

Legal framework

[12]   Applications for probate in common form are made without notice pursuant to r 27.4 of the High Court Rules. In making a grant of probate in common form the Court is not required to determine whether the will-maker was competent or possessed testamentary capacity at the time of executing the will. As such, where probate is granted in common form it remains susceptible to an application for the recall of probate, for example due to a lack of testamentary capacity.

[13]   An application for a grant of probate in solemn form is made under r 27.6 when there are challenges regarding a will’s validity, such as questions regarding the will-maker’s competency or testamentary capacity. The Court may only grant probate

in solemn form if it is satisfied that the testator had capacity and that the will has otherwise been properly made. If probate is then granted in solemn form, it can only be recalled where the grant of probate has been fraudulently obtained, or a subsequent will comes to light.

[14]   Parties to an application for a grant of probate in solemn form may compromise. Rule 27.8 provides:

27.8     Compromises

(1)This rule applies if an application under rule 27.6 is the subject of a compromise, whether or not a statement of defence has been filed.

(2)The court may direct—

(a)that the application is to be treated as an application under rule 27.4; and

(b)that evidence on the application may be given by affidavit.

Discussion

[15]   The applicants cannot apply for probate in common form because there is uncertainty whether the first and second drafts are testamentary and as to their proper execution. They apply for directions that the application for probate be treated as a without notice application for probate in common form with evidence by way of affidavit because a compromise has been reached.

[16]   Mr Taylor, for the applicants highlights the observation of Robinson J in Ball v Saint, that:1

Rule 27.8 recognises that when the parties to an application for a grant of probate in solemn form reach a compromise the Court has a discretion instead to grant probate in common form. There is nothing in rule 27.8 to suggest that the Court may not grant probate in solemn form when the parties compromise.

[17]   In Ball, the court granted probate in solemn form because testamentary capacity was put in issue and was not resolved by the compromise.2 I am satisfied there is no issue as to Heather’s testamentary capacity.

1      Ball v Saint [2023] NZHC 814 at [16].

2 At [17].

[18]   Counsel also refers to Rakich v Cox, where an application for probate in solemn form was treated as a without notice application under r 27.4 because a compromise had been reached.3 In that case, the validity of a second will had been put in issue, but the parties agreed it was not valid and that probate should be granted in respect of the first will.

[19]   Having considered the authorities, counsel’s memorandum and the four affidavits filed in support, I am satisfied it is appropriate to treat this application as a without notice application under s 27.4 and for evidence on the application to be given by affidavit. A number of factors favour that outcome:

(a)all potential beneficiaries have reached a compromise and have requested probate be dealt with in this manner following independent advice;

(b)the draft wills are invalid under the Wills Act, and incomplete;

(c)there is no evidence that suggests there are issues of testamentary capacity which could warrant further investigation by the Court;

(d)given the DOFA, the estate will be distributed in the same way regardless of the will the Court grants probate to; and

(e)allowing the evidence to be given by affidavit reduces both time and expense, which benefits all interested parties.

[20]   I am further satisfied given the uncontested nature of the probate application, the lack of challenge to testamentary capacity, and the compromise reached by all potential beneficiaries, it is appropriate to grant the applicants probate in common form of the executed will.

3      Rakich v Cox [2015] NZHC 703.

Result

[21]   Under r 27.8 I direct that the application for probate in solemn form be treated as a without notice application under r 27.4 and that the evidence be given by way of affidavit.

[22]   The application for probate of the will  of  Heather Muireen Burgess dated  16 August 2007 is granted in common form.

...................................................

Eaton J

Solicitors:
Wynn Williams, Christchurch