Estate of Burling

[2025] NZHC 2787

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-678

[2025] NZHC 2787

IN THE MATTER

of section 14 of the Wills Act 2007

AND

IN THE MATTER

of an application for an order that a document be declared a valid will of GRAHAM BERNARD BURLING

BETWEEN

RAYMOND LESLIE BURLING

Applicant

Hearing:	On the Papers
Counsel:	L M St George for Applicant
Judgment:	24 September 2025

JUDGMENT OF McQUEEN J

[1]                 This is an originating application by Raymond Burling for an order under s 14 of the Wills Act 2007 declaring that a document be declared a valid will of his uncle, Graham Bernard Burling.1

Background

[2]                 On 16 June 2025, lawyer Nayna Patel of Barden and Co Legal  attended Waihi Life Care to take will instructions from Graham. Ms Patel has provided an

1      For clarity in the judgment about whether I am referring to Raymond Burling or Graham Burling, I refer to them by their first names.

Re ESTATE G B BURLING [2025] NZHC 2787 [24 September 2025]

affidavit in support of the application. She explains that during the meeting with Graham, she started completing sections of a will questionnaire after taking verbal instructions from him. She also took some handwritten notes. Ms Patel watched Graham write his own notes with instructions on the gifts he wanted to make from his estate and how he wanted his residuary estate to be distributed. She said they discussed these instructions as he was writing.

[3]                 Ms Patel drafted a will based on the instructions contained in Graham’s handwritten notes, the questionnaire and instructions taken orally from him. Ms Patel has attached to her affidavit a copy of the draft will she prepared.

[4]                 Ms Patel also records that Graham instructed her to communicate with his nephew Raymond about the signing of the will. Raymond visited Graham on Fridays and advised Ms Patel that he would be able to collect Graham’s will for review and signing on a Friday and go through it with him. As Friday 20 June 2025, being the Friday following the meeting between Ms Patel and Graham, was a public holiday it was agreed with Graham and Raymond that Raymond would collect the draft will from Ms Patel for execution by Graham on Friday 27 June 2025.

[5]On Wednesday 25 June 2025, Graham passed away.

[6]                 Ms Patel states that Graham had not seen a copy of the draft will but she believes it is consistent with the instructions he provided. She confirms that Graham provided clear instructions as to the appointment of Raymond as executor and trustee and clear instructions as to gifts to be made from his estate and the disposal of his residuary estate.

[7]                 Raymond confirms in his affidavit that he has made full enquiries and searches for an earlier will made by Graham. No earlier will has been found, and the notes taken by Ms Patel confirm that Graham advised her he did not have a will at the time he was giving her instructions for the preparation of a will. Raymond also attaches to his affidavit a copy of the same draft will found as an annexure to Mr Patels’ affidavit.

[8]                 The draft will makes specific gifts of items to certain persons and then leaves the residuary estate in an 80 per cent share to Raymond and a 20 per cent share to a friend of Graham’s. Raymond confirms that Graham was not survived by a de facto partner, spouse or civil union partner entitled to succeed on intestacy. Nor was Graham survived by any child.

[9]                 In these circumstances, the persons with the beneficial interest in Graham’s estate on intestacy are his siblings. Graham had five siblings, two of whom are deceased. The remaining three siblings have provided their consent to the draft will being declared a valid will of Graham.

The application

[10]Raymond seeks orders that:

(a)leave be granted for this application to be made without notice to any other person; and

(b)the undated and unsigned document attached to Raymond’s affidavit filed in support of this application be declared valid as the last will of Graham (the Draft Will).

[11]             Under s 14 of the Wills Act, the Court may declare a document to be a valid will if it is satisfied the document appears to be a will but does not comply with the requirements for validity of wills in s 11, if the Court is satisfied that the document expresses the deceased person’s testamentary intentions.

[12]             The Draft Will appears to be a will but does not comply with s 11 of the  Wills Act because it is not signed or witnessed.

[13]In exercising its discretion under s 14, the Court may consider:2

(a)the document;

2      Wills Act 2007, s 14(3).

(b)evidence on the signing and witnessing of the document;

(c)evidence on the deceased person’s testamentary intentions; and

(d)evidence of statements made by the deceased person.

Result

[14]             Based on the affidavits filed by Ms Patel and Raymond in support of this application, I am satisfied that the Draft Will expresses Graham’s testamentary intentions.

[15]             I am also satisfied that the application may proceed without notice as all persons who may be potentially affected by the application have provided their consent.

[16]             I therefore declare that the document, being the Draft Will attached to the affidavit of Raymond Leslie Burling sworn on 5 September 2025 and marked as exhibit “A”, is a valid will of Graham Bernard Burling.

McQueen J