Estate of Kaimoefai

[2025] NZHC 1819

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-365

[2025] NZHC 1819

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 SIONE FINAU KAIMOEFAI

THE PUBLIC TRUST

Applicant

On the Papers
Counsel:	B D Power for Applicant
Judgment:	3 July 2025

JUDGMENT OF ISAC J

[Application to declare a document to be a valid will]

Introduction

[1]                 The Public Trust applies for a without notice order declaring a document to be the valid will of the late Sione Finau Kaimoefai. The document is witnessed by one person only. It therefore fails to comply with s 11(4) of the Wills Act 2007, requiring that “at least two” people witness the deceased’s signature.

Background

[2]                 Mr Kaimoefai died at Hamilton on 30 April 2023. Over two years later this application was filed.

Re: ESTATE KAIMOEFAI - THE PUBLIC TRUST [2025] NZHC 1819 [3 July 2025]

[3]                 The evidence in support of the application is inadequate. The deponent is an employee of Public Trust seemingly based in Timaru. They do not disclose if they knew Mr Kaimoefai personally or have personal knowledge of his circumstances and intention when he signed the document in question.

[4]                 While the affidavit discloses that the deponent “believes” the document is a copy of an original, no information is provided to establish the grounds of that belief. The whereabouts of the original is said to be “unknown despite a thorough search being conducted of the deceased’s belongings”, but the deponent does not disclose the source of this information and whether it is hearsay or otherwise.

[5]                 While Public Trust also suggests it has made “full enquiries and searches” for an earlier will, no information is provided about the searches and their outcome. Despite this, the deponent says they are “satisfied” Mr Kaimoefai “did not execute an earlier will”.

[6]                 The deponent also records they have “made inquiries to the staff at the shelter about the death certificate’s reference to the deceased having a son”. But they do not explain what the “shelter” is, who was spoken to or why it was not possible to obtain an affidavit from a person with direct knowledge of the facts. Finally, the witness to the document is identified within it but they have not provided an affidavit setting out the circumstances at the time it  was  signed  and  whether  it  accurately  recorded Mr Kaimoefai’s testamentary intentions.

[7]                 As a result of this on 16 June 2025 I issued a minute seeking further information in the following terms:

It would be helpful if [Counsel] could advise the Court of the value of the estate and  also  if  there  is  any  other  information  concerning  whether  Mr Kaimoefai has a son beyond the brief reference in his death certificate.

[8]                 In a memorandum the following day counsel for Public Trust advised the estate assets were valued at approximately $21,745.32 and that the Trust had been:

…unable to obtain the consent of the son of the deceased who may have survived the deceased and such would be a person affected by the Application: see paragraph 8 of the Affidavit of Shayle Ron Gardyne dated

1 May 2025 (“the Affidavit in Support”) filed in support of the Application. A copy of  the  Affidavit  in  Support  is  filed  together  with  this memorandum of counsel for ease of reference.

[9]This led me to issue a further minute in the following terms:

I thank [counsel] for [their] memorandum today. My query concerning the possibility the deceased has or had a son could have been more clearly expressed. My question is whether Public Trust has completed a search through the Department of Internal Affairs of birth records to ascertain whether the deceased had a son and if so their name, or taken any other steps beyond those noted in the supporting affidavit.

[10]             In response the Court received an email attaching the results of a search by Internal Affairs for paternity orders and declarations of paternity. No such declaration of paternity under the Family Proceedings Act 1980 or the Status of Children Act 1969 was found.

Conclusion and result

[11]             The material before the Court leaves an unresolved question about the existence of a son of the deceased, how this came to be recorded in the death certificate and how Public Trust came to be aware there is a party affected by its application. If there is a child of the deceased they would be entitled to receive the estate on intestacy and their interests are materially affected by the application.

[12]             A Judge may only determine that an application can properly be dealt with without notice if satisfied the interests of justice requires it.1 The evidence falls well short of that threshold.2 In the circumstances the application must be dismissed.3

1      Rule 7.46(3)(e) of the High Court Rules 2016.

2      While the estate is modest, the Court should not encourage without notice applications to validate documents that fail to address the well-known requirements for such applications.

3      For a discussion of the requirements for without notice applications to validate a will, see Westlaw New Zealand Family Property, at WB14.08 Procedure. In Re Zhu, HC New Plymouth CIV-2010- 443-21, 17 May 2010, at [4], McKenzie J held: “Where all those who could be affected consent, and there are no other factors which would make such a course inappropriate, the interests of justice may require that the application be dealt with on a “without notice” basis, in terms of     r 7.46(3)(e) of the High Court Rules”.

[13]             Finally, I note it is still open to Public Trust to elect to administer the estate under s 93 of the Public Trust Act 2001.

Isac J

Solicitors:

Public Trust, Wellington