Estate of Harris
[2025] NZHC 506
•13 March 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-531
[2025] NZHC 506
UNDER the Wills Act 2007 IN THE MATTER OF
the estate of PAUL DAVID JOSEPH HARRIS
AINSLEY JEAN MCLEOD
(as executor and trustee of the estate) Applicant
Hearing: On the papers Counsel:
C W Knowles for the Applicant
Judgment:
13 March 2025
JUDGMENT OF MANDER J
[1] The applicant, Ainsley McLeod, in her capacity as the executor and trustee of the estate of the late Paul David Joseph Harris, has applied for an order declaring a document prepared as Mr Harris’ will (the 2021 document) to be valid.1
[2] The document in question is a standardised form of will that was obtained by Mr Harris using the Public Trust’s online portal. It was completed and purportedly executed without professional advice on 6 July 2021. Mr Harris apparently wanted to make a new will before undergoing surgery. It names Ms McLeod as the executor and trustee of the will. She has affirmed that, because of the circumstances in which it was made, its execution was “rushed”. The document is deficient because Mr Harris’
1 Wills Act 2007, s 14.
RE ESTATE OF HARRIS [2025] NZHC 506 [13 March 2025]
execution of it as his will was only witnessed by Ms McLeod. She is the only person who signed the document as a witness in the will-maker’s presence.2
[3] The application to validate the will was accompanied by an affidavit from Ms McLeod, who confirmed that in her presence Mr Harris’ signed his name after having read the 2021 document. She has confirmed that he seemed to understand the document thoroughly and have full knowledge of its content. She further confirms her understanding that it was intended to be the last will of Mr Harris but also that only she signed the will as a witness in his presence. Ms McLeod deposes that neither she nor Mr Harris had knowledge of the requirements of s 11 of the Wills Act 2007 which requires the execution of a will to be undertaken in the presence of two witnesses.
[4] Ms McLeod initially deposed that the persons with a beneficial interest in Mr Harris’ estate are his two adult children, Liam and Ethan Harris, and herself as Mr Harris’ de facto partner. Ms McLeod confirmed that Mr Harris was not survived by any other child, either born to Mr Harris or adopted by him, or in respect of whom he had admitted paternity, or been adjudged before or after his death to be the father. Nor was Mr Harris survived by any grandchildren. Further, Ms McLeod deposed that reasonable enquiries had not resulted in the finding of any parent or child of Mr Harris. Those enquiries extended to a search of the Register of Instruments, Declarations and Orders maintained by the Registrar-General, pursuant to s 9 of the Status of Children Act 1969, and an inspection of Mr Harris’ papers that have come to Ms McLeod’s notice in the course of searching for a will made by Mr Harris. The Office of the Registrar-General has certified the absence of any record of any living parent or other child.
[5] In support of the application, Ms McLeod confirmed her own consent to the application being granted and formal consents were filed from Mr Harris’ two sons, Liam and Ethan, to the application being granted and an order being made declaring the 2021 document to be Mr Harris’ valid will. Both sons confirmed they had been advised of their right to seek independent legal advice but had declined needing to do so.
2 Section 11(2) and (4).
[6] The application was first placed before Harland J in October 2024. The Judge noted the lack of any evidence of a search for earlier wills or the existence of any previous draft wills. The Judge’s query resulted in enquiries being made into the existence of an earlier will, both by further investigation of Mr Harris’ papers and advertising in a publication circulated to New Zealand law firms. As a result of those enquiries, an earlier will dated 26 June 2001 was located (the 2001 will). The 2001 will appoints Donna Lucille Thomson, who is described at that time as Mr Harris’ “partner”, as the executor and trustee of his will. It provided for the liquidation of the assets of Mr Harris’ estate and the equal division of those proceeds between his children after payment of debts, funeral and administration expenses.
[7] The application to validate the 2021 document was renewed and the updated information regarding the existence of the 2001 will provided to the Court. The application was placed before me as duty Judge. Having reviewed the documents filed in support of the application, I noted the written consents obtained from Mr Harris’ two sons, dated 1 May 2024, made no mention of the 2001 will having been brought to their attention, it only having been discovered after the further directions issued by Harland J in October 2024. This was of some significance because the 2001 will made no provision for any gifts to other parties, whereas the 2021 document provided a gift of Mr Harris’ horses to Ms McLeod. In the absence of proof of the sons being aware of the earlier will, it was not apparent they had provided informed consent to the validation of the 2021 document which provided, on its face, a gift of Mr Harris’ horses to Ms McLeod. No information was provided regarding this aspect of the 2021 document, including the value of what appeared to be part of Mr Harris’ estate. No equivalent gift was provided for by the 2001 will. I also noted that, because of the discovery of the 2001 will, it would also be appropriate for the trustee and executor named in that will to be provided notice of the application to validate the 2021 document.
[8] These further matters have now been addressed in a supplementary affidavit filed by Ms McLeod which annexes updated formal consents from Liam and Ethan Harris and a further formal consent from the previous executor and trustee, Ms Thomson. Both sons have confirmed they have been made aware of the 2001 will and reiterate their consent to an order being made declaring the 2021 document to be
the valid will of their father. Ms Thomson, who refers to herself as the ex-partner of Mr Harris and the executor named in the 2001 will, has advised in writing that she is aware of Ms McLeod’s application to have the 2021 document validated as Mr Harris’ last valid will and has no objection to that document being declared a valid will under s 14 of the Wills Act.
[9] Insofar as the 2021 document provides for an additional gift of Mr Harris’ horses to Ms McLeod, she has now affirmed that, to her knowledge of Mr Harris’ affairs, he owned no horses as at the date of his death and therefore that this gift fails. It follows that only Mr Harris’ children, Liam and Ethan, are persons with a beneficial interest in his estate.
[10] A document that does not comply with the requirements for executing a will may be validated by the Court if it is satisfied that it expresses the deceased’s testamentary intentions. Section 14 of the Wills Act 2007 (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.
(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] The only deficiency in the 2021 document is the failure to have a second person witness its execution as Mr Harris’ will. Unlike in some cases, no issue arises as to whether the document genuinely expresses the will-maker’s wishes. Indeed, the
updated information that the additional gift provided for in the 2021 document—“my Horses to Ainsley”—having failed in the absence of Mr Harris having any horses at the time of his death, establishes that effectively there is no material difference between the 2021 document and the 2001 will. Both provide for Mr Harris’ two sons to share equally in the residue of his estate. That being the case, it is not altogether clear why probate was not sought in respect of the 2001 will, although I acknowledge it provided for a different executor and trustee, Ms Thomson, who was Mr Harris’ partner at that time. Clearly, Mr Harris had moved on with his life at the time he made the 2021 document and was in a relationship with the applicant, Ms McLeod, who he wished to have fulfil that role.
[12] I am satisfied the 2021 document is an expression of Mr Harris’ wishes and reflects his testamentary intentions that his two sons share equally in his estate. The 2021 document genuinely expresses those intentions, and with the gift to Ms McLeod having failed, it is in effect consistent with the earlier 2001 will. No other persons are affected by the validation of the 2021 document.
[13] Having read the material filed in support of the application, and in particular Ms McLeod’s affidavits and the consent documents of the identified affected parties, I am satisfied that but for the failure to have the 2021 document witnessed by a second person, it would otherwise have constituted Mr Harris’ last valid will. There is no indication that Mr Harris prior to his death considered the 2021 document to be invalid, or that its content did not reflect his testamentary intentions.
[14] Being satisfied therefore that the 2021 document, which lacks having been witnessed by a second person, does express Mr Harris’ testamentary intentions at the date of his death, I declare, pursuant to s 14 of the Wills Act, that document to be the valid will of Paul David Joseph Harris. Accordingly, there will be an order to that effect.
[15]No order in respect of costs arises.
Solicitors:
Helmores Lawyers, Rangiora
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