Estate of Horne

[2021] NZHC 83

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-22

[2021] NZHC 83

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER OF

The Estate of MARIA BRENDA HORNE

BETWEEN

APIRANA DARCY TE UARA HEMI- HORNE, TUI KAHOTEA DAVIS and DAVID RIHARI HEMI-HORNE

Applicants

On the papers
Counsel:	L M Farquhar for the applicants
Judgment:	4 February 2021

JUDGMENT OF CULL J

[1]                 Mr Apirana Hemi-Horne and Mr David Hemi-Horne, the sons of the deceased, and the deceased’s friend, Ms Tui Davis apply for an order without notice under s 14 of the Wills Act 2007 (the Act) declaring an unsigned draft will (the unsigned will) valid, as the last Will of the deceased, Mrs Maria Horne.

[2]                 Prior to her death in December 2019, the deceased and her partner of 20 years separated in July 2019. The deceased had executed two wills, in 1984 and 2006, the latter of which left a life interest in the deceased’s property at Maketu to her partner. She also left the residue of her estate to her sons and her partner equally.

[3]                 The deceased and her former partner were in the process of settling their relationship property matters in the months before the deceased died. A draft settlement agreement was in the process of being prepared by her former partner’s

ESTATE OF HORNE [2021] NZHC 83 [4 February 2021]

solicitor but had not been received in time for the deceased to discuss it with her solicitor, Ms D H Grantham.

[4]                 Ms Davis, the deceased’s close friend and executor of her 2006 will and the proposed executor of the “unsigned will”, confirms that in the months leading up to the deceased’s death, she spoke to her on the phone regularly, particularly after her relationship had broken up. Ms Davis confirms that around November 2019, the deceased told her that she was going through the process of redoing her will, having confirmed to Ms Davis that if anything happened to her, she wanted her sons to share everything equally from her estate, including the whānau home at Maketu and her land shares. She told Ms Davis that her boys were her priority and they were to come first. However, she also wished to be fair to her former partner and Ms Davis understood that there was to be a cash settlement from the deceased to her former partner, which was to be separate from her will and part of the relationship property agreement.

[5]                 The solicitor, Ms D H Grantham has filed an affidavit confirming that she received the deceased’s will instructions and the unsigned document is the draft of the deceased’s last Will and testament, which her firm drafted. There was a delay in reviewing the draft will with the deceased, because they were awaiting the proposed relationship property agreement, which was to be finalised at the same time as the deceased came to the firm to sign the draft will. The deceased died on 14/15 December 2019, before the redrafted will was signed. Ms Grantham is in no doubt that the draft will reflects the deceased’s testamentary wishes.

[6]                 The principal changes between the 2006 will and the unsigned will is that the deceased’s former partner receives no beneficial interest under the unsigned will and Ms Nikora, who was named as an executor trustee in the 2006 will, has no other interests in the unsigned will and consents to this application. The deceased’s former partner has signed his consent to this application and received legal advice in doing so.

[7]                 Before a document can be declared a valid will, “there must be cogent evidence that the document reflects the testamentary intentions of the deceased”.1 I am satisfied

1      Re Hickford, HC Napier CIV-2009-441-369, 13 August 2009 at [9].

that the evidence filed in support of this without notice application supports a finding that the deceased intended the unsigned will to constitute her final Will. There is ample corroboration that the deceased did not want her former partner to benefit from her estate. The deceased confirmed her intentions to Ms Davis, who was appointed her executor under the unsigned will and she gave her will instructions to Ms Grantham, who confirms that the unsigned will was prepared by her firm on 7 October 2019. Ms Grantham has also deposed that the deceased intended to sign the draft will once her relationship property settlement agreement was finalised.

[8]                 The applicants have undertaken extensive investigation to ascertain whether there are any other wills or whether there is in existence any parent or child who could claim an interest in the deceased’s estate. Nothing came of these inquiries.

[9]                 I am satisfied that the draft unsigned will should be validated, as it accurately reflects the deceased’s testamentary intentions.

[10]Accordingly, I make the following orders:

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

(b)the unsigned and undated document, being a draft will, a copy of which is marked “AH5” attached to the affidavit of Apirana Hemi-Horne, be declared valid as the last Will of the deceased.

Cull J

Solicitors:
Harris Tate Limited, Tauranga for the applicants