Estate of Botma

[2025] NZHC 1732

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-311

[2025] NZHC 1732

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER

of an application for an order that a document be declared to be a valid will of

the deceased LODEWICKUS LAWRENCE BOTMA

ANGUS BRUCE CHARTERIS

Applicant

On the papers
Counsel:	S J Scannell for Applicant
Judgment:	27 June 2025

JUDGMENT OF ISAC J

[Validation of will under s 14 Wills Act 2007]

Introduction

[1]    The applicant, Mr Angus Charteris, has made a without notice application for an order declaring a document to be the valid will of the  late  Lodewickus  Lawrence Botma, who died on 27 November 2024.

The application to validate the will

[2]    Mr Charteris is a friend of the late Mr Botma and has provided an affidavit in support   of   the   application.   Three   further    affidavits    were    provided    by Mr Hamish Seaward, Mr Reilly Bell, and Mr Simon Scannell, the applicant’s solicitor.

ESTATE OF L L BOTMA [2025] NZHC 1732 [27 June 2025]

[3]    The evidence establishes that on 12 May 2024 Mr Botma sent an unsigned copy of  a  document  entitled  “Last  Will  and  Testament  of  Lodewickus  Lawrence Botma” to Mr Charteris asking for his assistance to print it.

[4]    A week later, on 19 May, Mr Charteris emailed the document to Mr Seaward. On 25 May Mr Seaward called to see Mr Botma who was then in a hospital room at Wellington Hospital. He took a copy of the document with him. Strike-out changes were made to the document in accordance with Mr Botma’s instructions, and it was signed by Mr Botma in Mr Seaward’s presence. Mr Seaward also witnessed it.

[5]    Two  days later Mr Reilly Bell called on Mr Botma in his hospital room.     Mr Botma explained to Mr Bell that the document was intended to be his last will and asked Mr Bell to sign as the second witness. He did so, but unfortunately Mr Seaward was not present on 25 May 2024 when Mr Botma and Mr Seaward had signed the document. The difficulty arose because at the time Mr Botma’s health was such that he could not have two visitors attend on him.

[6]    Mr Charteris deposes that Mr Botma did not have an earlier will. The only person holding a beneficial interest in the estate if the document is validated  is     Ms Christa Botma of Pretoria, South Africa. She is Mr Botma’s sister and consents to the order being granted. The evidence also satisfies me that Mr Botma is not survived by a de facto partner or by any children.

Legal Principles

[7]Section 14 of the Act provides:

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.

1. 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.

[8]    Section 8 of the Act defines a will as a document that is made by a natural person and either disposes of property to which the person is entitled when they die, disposes of property to which the person’s personal representative becomes entitled after their death, or appoints a testamentary guardian.

[9]    Section 11(2) of the Act requires that a will must be signed and witnessed to be valid.

[10]   I adopt a helpful summary of legal principles and authorities set out by O’Gorman J in Public Trust v Nirza:1

An application under s 14 is to be proved on the balance of probabilities. As noted by the Court in Re Campbell (deceased), a high proportion of s 14 applications are successful, indicating that “the evidential burden on a s 14 applicant is not subject to a high threshold”.

Care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuine, rather than the formal steps taken to implement those intentions. Where there is supporting evidence of the will-maker’s clear intentions, those intentions should be given effect over an intestacy.

In Re Campbell (deceased), the High Court held that New Zealand law did not distinguish between seen and unseen documents. The Court merely needs to be satisfied that the content of the document expressed the deceased’s testamentary intentions. In that case, the Court was so satisfied, even though the deceased had not seen or approved the draft after it was amended by his solicitor and the deceased’s amendments had been conveyed to the solicitor by the deceased’s accountant.

In Re Estate of Fraser, the deceased provided will instructions in April 2011 and died in September 2011. He had not seen the draft will, but the Court was satisfied, based on the evidence provided, that it reflected the instructions conveyed to his solicitor in April 2011. The Court validated the draft will accordingly.

1      Public Trust v Nirza [2024] NZHC 3801 at [11]–[15]. Footnotes omitted.

Where there has been a lapse in time between the making of the document sought to be validated, and the death of the deceased, the Court needs to consider whether there is any evidence suggesting that the deceased changed their mind about making a will. However, a distinction should be drawn between a change of heart, as opposed to mere inadvertence or a misunderstanding. In Amundson v Raos, the Court was satisfied that the deceased had not changed his mind during the five month delay between providing his will instructions and the date of his death.

[11]   In short, the approach under s 14 is well settled. The document must appear to be a will, fail to meet the formal requirements contained in the Act, and express the testamentary intentions of the deceased. The Court adopts a reasonably robust approach to the last requirement.2

Analysis

[12]   First, I am satisfied the application should proceed without notice. The evidence establishes that all persons who may be affected by the order sought have had a proper opportunity to be represented in these proceedings. The deceased was not survived by a de facto partner entitled to succeed on intestacy and is not survived by a child. The only person with a beneficial interest in the estate is aware of the application and consents to the order.

[13]   Second, I am also satisfied that the formal requirements under s 14 are met. The document appears to be a will, meeting the requirements of s 8(1) of the Act. It is clear that the execution of the document did not comply with the requirements of s 11 of the Act. This is because it was not signed by Mr Botma in the presence of the two witnesses. This difficulty only arose due to the unfortunate circumstances Mr Botma found himself in at the time it came to sign the will.

[14]   The remaining issue is whether I am satisfied that the document expresses  Mr Botma’s testamentary intentions. It clearly does, and on the evidence I am satisfied that it was Mr Botma’s clear intention that the document should be his last will.

[15]   The requirements of s 14 are therefore met and it is appropriate to grant the application.

2      Re Estate of Feron [2012] NZHC 44, [2012] NZLR 551 at [11]–[12].

Conclusion and result

[16]I make the following orders:

(a)that the application for validation be made on a without notice basis; and

(b)that the document dated 25 May 2024 attached as exhibit A to the affidavit of Simon John Scannell be declared a valid will.

[17]Leave to apply is reserved.

Isac J

Solicitors:
Sainsbury Logan & Williams, Hastings for Applicant