Estate of Bolton
[2024] NZHC 1915
•12 July 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-385
[2024] NZHC 1915
IN THE MATTER of section 14 of the Wills Act 2007 IN THE MATTER
of the Estate of GERALD BOLTON late of Eastbourne in New Zealand, formerly a
Labourer but latterly Retired Deceased
BETWEEN
MICHAEL BOLTON AND PETER BOLTON
Applicants
Hearing: On the Papers Counsel:
S A Seddon for Applicants
Judgment:
12 July 2024
JUDGMENT OF McQUEEN J
[1] Mr Michael Bolton and Mr Peter Bolton (the applicants) seek an order pursuant to s 14 of the Wills Act 2007 (the Act) that a document be declared a valid will of Mr Gerald Bolton (Mr Bolton) who died on 13 October 2023. The application filed also seeks leave for the application to be made without notice to any other person.1
[2] The applicants are brothers of Mr Bolton. They have filed an affidavit in support of their application. The document sought to be declared a valid will of Mr Bolton is exhibited to the affidavit (the will document).
1 I note that the application relies on r 27.4 of the High Court Rules 2016 (the Rules) however the relevant Part of those Rules is Part 19, see r 19.2(xa). See also the commentary in Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at HR19.2.01(32). Rule 7.23 of the Rules (relating to filing an application without notice) is also relevant.
ESTATE OF G B BOLTON [2024] NZHC 1915 [12 July 2024]
Background
[3] The applicants address the relevant background in their affidavit. They believe the will document was drafted by Mr Bolton following the death of another brother (Mr John Bolton) in 2003.
[4] The applicants say that the will document accurately represents Mr Bolton’s testamentary intentions for the following reasons:
(a)Mr Bolton was close to his brother John, who died in 2003 leaving four teenage children. Mr Bolton expressed to the applicants that he felt he had a responsibility to provide for John’s children in the event of his death;
(b)About a year after John’s death, Mr Bolton made and signed the will document;
(c)Mr Bolton expressed to the applicants on numerous occasions that he wanted his 10 nieces and nephews to be the beneficiaries of his estate; and
(d)Prior to Mr Bolton’s death, the applicants had discussions with him about his estate and his wishes were still for his nieces and nephews to be the beneficiaries of his estate.
[5] The applicants also say that in their view if they were to receive the estate under the rules of intestacy this would dishonour Mr Bolton’s express wishes. The applicants attach to their affidavits their formal consents to the will document being declared a valid will of Mr Bolton. In those consents, they have confirmed that they have had the opportunity to obtain legal advice but do not wish to do so.
[6] The applicants confirm that they have made inquiries and searches for an earlier will made by Mr Bolton and are satisfied that he did not execute an earlier will so that if the will document is not declared to be a valid will, the deceased will be wholly intestate.
[7] The applicants confirm that Mr Bolton was not survived by a spouse, civil union partner, de facto partner, child or parents entitled to succeed on intestacy. They have made reasonable inquiries, for the purposes of the status of Children Act 1969, as to the existence of a parent or child of Mr Bolton in addition to those already known to the applicants who could claim an interest in the estate. The result of their inquiries was that they did not discover any such parent or child.
[8] The will document appoints the applicants as co-executors and trustees. It leaves the residue of the estate to Mr Bolton’s trustees to pay the usual expenses in respect of the estate and to then hold the residue in a fund to be administered equally by Mr Bolton’s named nieces and named nephews, upon their attaining the age of 30 years.
[9] The applicants indicate that the gross value of the estate left by Mr Bolton does not exceed $810,000.
The law
[10] This Court has power to declare a document a valid will pursuant to s 14 of the Act. That section states:
14 High Court may declare will valid
(1)This section applies to a document that—
(a)appears to be a will; and
(b)does not comply with section 11; and
(c)came into existence in or out of New Zealand.
(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
(3)The court may consider—
(a)the document; and
(b)evidence on the signing and witnessing of the document; and
(c)evidence on the deceased person’s testamentary intentions; and
(d)evidence of statements made by the deceased person.
[11]Section 11 of the Act provides:
11 Requirements for validity of wills
(1)A will must be in writing.
(2)A will must be signed and witnessed as described in subsections (3) and (4).
(3)The will-maker must—
(a)sign the document; or
(b)direct another person to sign the document on his or her behalf in his or her presence.
(4)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.
(5)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:
(a)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
(b)that he or she signed the document in the will-maker’s presence.
(6)No particular form of words is required for the purposes of subsection (5).
Discussion
[12] I am satisfied that it is appropriate in the circumstances that the application may be dealt with on a without notice basis and that no person is required to be served.2 The application is made on a without notice basis on the ground that all persons who may be potentially affected by the validation of the will document have consented to the application.
[13] The affected parties are the applicants, who have provided their consent to the application. They have made it clear that they want Mr Bolton’s wishes (as set out in the will document and conveyed by Mr Bolton to them on various occasions) to leave his estate to his nieces and nephews to be fulfilled. They have confirmed that Mr Bolton was not survived by a spouse, civil union partner, de facto partner, parent or child entitled to succeed on intestacy. In accordance with the terms of s 77 of the Administration Act 1969, this means the applicants are entitled to succeed in Mr Bolton’s estate on intestacy.
[14] I also consider that the requirements of s 14(1) are met in the present circumstances. The will document appears to be a will, it came into existence in New Zealand, and it does not comply with s 11 of the Act as it was not witnessed. The power under s 14 to declare the document a valid will is therefore available.
[15] Counsel for the applicants has referred me to the decision of MacKenzie J in Estate of Zhu (deceased) where the Judge made relevant observations about the approach to an application under s 14 of the Act.3
2 High Court Rules 2016, r 7.46.
3 Re Zhu (Deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [3].
In determining the procedure appropriate for a particular case, the overriding concern, in my view, must be to adopt a procedure which will ensure that all persons who may be potentially affected by the granting of relief are given proper notice of the proceedings, and a proper opportunity to be heard. A further important principle to be taken into account is that the new powers conferred by the Act to validate and correct wills are clearly intended by Parliament to be remedial. The procedures to be adopted ought to reflect that remedial principle. Undue expense and formality in the procedures should not be imposed. The procedures should, consistent with the overriding principle that all parties who may be affected must be given notice, be such that applications are dealt with promptly, inexpensively and efficiently.
[16] Counsel for the applicants emphasises that, as in Zhu, Mr Bolton does not appear to have had the benefit of legal advice at the time of preparing the will document.
[17] I am satisfied on the balance of probabilities by the evidence from the applicants that the will document accurately represents Mr Bolton’s testamentary intentions. It is noteworthy that the applicants are seeking to honour Mr Bolton’s testamentary wishes in circumstances where they would otherwise be entitled to succeed on intestacy.
Orders
[18] Leave is granted to make the application without notice to any other person and service of the proceeding is dispensed with.
[19] I declare that the will document attached as exhibit A to the affidavit of the applicants is a valid will of Mr Bolton.
McQueen J
Solicitors:
Collins & May Law, Lower Hutt for Applicants
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