Estate of Kearns

[2024] NZHC 1643

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-1388

[2024] NZHC 1643

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER OF

AND

The Estate of Margaret Florence Kearns

IN THE MATTER OF

An application by GAVIN PHILIP KEARNS and VAUGHAN PATRICK KEARNS to

declare Codicil valid

Hearing:	On the papers at Auckland
Judgment:	21 June 2024

JUDGMENT OF POWELL J

[Application to declare Codicil valid]

This judgment was delivered by me on 21 June 2024 at 12.00 pm.

Pursuant to R 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

The Estate of Margaret Florence Kearns [2024] NZHC 1643 [21 June 2024]

[1]    Gavin Kearns (“Gavin”) and Vaughan Kearns (“Vaughan”) have applied for an order declaring a codicil validated.

[2]    The application is necessary  following  the  death  of  their  mother,  Margaret Kearns, who passed away on 9 April 2024. Gavin and Vaughan have since applied for probate.

[3]    Mrs Kearns’ will dated 24 February 1987 provided that her husband,  Norman Kearns, would be the executor and trustee of her will, but as Mr Kearns pre-deceased Mrs Kearns the will provided for Gavin to be the executor and trustee. Prior to her death, Mrs Kearns had advised Gavin and Vaughan that she had also appointed Vaughan to be an executor and trustee along with Gavin, and it was on this basis that Gavin and Vaughan sought probate.

[4]    Although it appears Mrs Kearns signed what appears to be a codicil adding Vaughan as the additional executor and trustee, that document has only been signed by one witness, Mrs Kearns’ solicitor, Jonathan Crawford.

[5]    The single signature means the codicil does not comply with s 11(4) of the Wills Act 2007, but s 14(2) of the Act provides that 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.

[6]    In this case, Mr Crawford has provided an affidavit confirming the codicil was prepared by him following receipt of Mrs Kearns’ instructions, her execution of the codicil in his presence and his witnessing of the document. Mr Crawford has also explained that there were a number of other documents being witnessed and it appears that ensuring the participation of a second witness for the codicil was simply overlooked.

[7]    As noted above, Mr Crawford’s evidence is entirely consistent with Vaughan and Gavin’s own evidence about their understanding of their mother’s intentions set out in the affidavit in support of the lead grant for probate, that Vaughan had been added as an executor and trustee.

[8]    In the circumstances, having considered the evidence available and noting that the will is otherwise confirmed, I am entirely satisfied it is appropriate to declare the codicil valid as it expresses Mrs Kearns testamentary intention. Orders accordingly.

Powell J