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…

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.

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Details

Case: [2025] NZHC 1732
Decision Date: 27 June 2025

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine whether a document could be declared the valid will of the late Lodewickus Lawrence Botma. The applicant, Angus Bruce Charteris, sought this declaration under Section 14 of the Wills Act 2007. The primary legal issue was whether the document, which was not signed in the presence of both witnesses as required by the Act, expressed Mr Botma's testamentary intentions. The court had to consider whether the document met the criteria for validation despite not strictly adhering to the formal requirements.

The court reviewed the evidence presented, which included affidavits and witness statements. It was established that Mr Botma had provided instructions for the will and that it was signed in his presence by one witness, with the other signing later. The court noted that Mr Botma's health at the time of signing made it impossible to have both witnesses present. The court held that the document did indeed express Mr Botma's testamentary intentions and, therefore, satisfied the requirements of Section 14 of the Act. Consequently, the court declared the document to be a valid will.

The High Court granted the application and declared the document dated 25 May 2024 to be the valid will of Lodewickus Lawrence Botma. The court made this declaration on a without notice basis, as all interested parties were either aware of the application or did not have a beneficial interest in the estate. The document was thus recognised as the final expression of Mr Botma's wishes regarding the disposition of his estate.

Orders