Estate of Brownson - [2025] NZHC 302

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-404-3277

[2025] NZHC 302

IN THE ESTATE OF RONALD DOUGLAS BROWNSON (DECEASED)

MARK RUSSELL SUMMERVILLE AND CHRISTOPHER WITHIEL RUSSELL

THOMPSON

Applicants

Hearing: 12 February 2025

Counsel:

A J Walker and R A Harré for applicants

Judgment:

26 February 2025

JUDGMENT OF JOHNSTONE J

(application for order declaring document to be a valid will)

This judgment was delivered by me on 26 February 2025 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
McVeagh Fleming, Auckland

ESTATE OF BROWNSON [2025] NZHC 302 [26 February 2025]

[1] Mark Summerville and Christopher Thompson seek an order, under s 14 of the Wills Act 2007, declaring a document dated 31 December 2021 (the Document) to be the valid will of Ronald Douglas Brownson.

[2] For the reasons set out below, I am satisfied that, although the Document does not comply with the formal requirements for validity of wills set out in s 11 of the Wills Act, it appears to be a will, and it expresses Mr Brownson’s testamentary intentions. I intend to make the order.

The jurisdiction to declare wills valid

Section 14 of the Wills 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.

(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.

[4] As indicated above, s 11 sets out the formal requirements for validity of wills. They include that the will is in writing, and is signed and witnessed in a prescribed manner.

Issues

[5] The Document is neither signed nor witnessed, and therefore fails to comply with s 11. The issues for determination were:

(a)Did the Document appear to be a will?

(b)Did it express Mr Brownson’s testamentary intentions?

(c)Should I exercise the Court’s consequential discretion to declare the will valid?

[6] In determining these issues, I considered the Document, and evidence of Mr Brownson’s statements and testamentary intentions, including evidence addressing the question why it was not signed or witnessed. This evidence was provided in the form of a joint affidavit, affirmed by Mr Summerville and Mr Thompson, filed in support of their application, and by affidavits of Robyn Harré and Tayla Fawkner, a solicitor and a legal secretary (respectively) of the firm McVeagh Fleming.

[7] The application was served as described below. No opposition was offered in response to the application. I accept, and provide the following outline, of the above evidence.

Mr Brownson’s family

[8] Mr Brownson died on or about 27 February 2023. Both…

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.

Keep reading for free

Create a free CaseChat account to read Estate of Brownson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NZHC 302
Decision Date: 26 February 2025

CaseChat Overview and Summary

Mark Summerville and Christopher Thompson, the applicants, sought a declaration under section 14 of the Wills Act 2007 that a document dated 31 December 2021 is the valid will of Ronald Douglas Brownson, who died in February 2023. The document in question, referred to as the Document, was the eighth in a series of nine documents, all of which failed to meet the formal requirements for validity of wills under section 11 of the Wills Act. The main issues were whether the Document appeared to be a will, whether it expressed Mr Brownson’s testamentary intentions, and whether the court should exercise its discretion to declare the will valid.

The court found that the Document plainly appeared to be a will, except for the required formalities. The court considered the Document, evidence of Mr Brownson’s statements and testamentary intentions, and evidence on the signing and witnessing of the Document. The applicants provided a joint affidavit, and affidavits from Robyn Harré and Tayla Fawkner, a solicitor and legal secretary respectively of the firm McVeagh Fleming. The court accepted that the Document expressed Mr Brownson’s testamentary intentions, as evidenced by the correspondence between Mr Brownson and Ms Edmondson, a solicitor. There was no evidence of Mr Brownson expressing more recent testamentary intentions than those set out in the Document. All potential beneficiaries, including Mr Brownson’s First Cousins, who might have acquired interests by way of intestacy, either provided written consent or were served and chose not to oppose the application.

The court found that the Document should be given effect as it amounted to the most recent account of Mr Brownson’s testamentary intentions. The court exercised its discretion to declare the Document the valid will of Ronald Douglas Brownson. Johnstone J made the order in terms of section 14 of the Wills Act, declaring the Document, a copy of which is attached to the applicants’ affidavit marked “J”, to be the valid will of Ronald Douglas Brownson.

Orders