Estate of Kereopa

[2016] NZHC 3019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-767 [2016] NZHC 3019

UNDER	Section 14 of the Wills Act 2007
IN THE MATTER OF	an application for an order declaring a will valid and for obtaining grant of probate
BETWEEN	FRANCIS AONUI KEREOPA (Deceased)
AND	STEPHANIE STANAWAY Applicant

Hearing:	8 December 2016
Counsel:	B D Hayes for the Applicant A M Jefferies for D Poata and J Poata von Oettingen R D Clark for P Te Kare
Judgment:	13 December 2016

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 13 December 2016 at 1:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Counsel:     B D Hayes, Auckland

R D Clark, Hamilton

Solicitors:   Kidd Legal (M J Kidd), Auckland

Jefferies Law Ltd, Hamilton

RE ESTATE OF FRANCIS AONUI KEREOPA [2016] NZHC 3019 [13 December 2016]

[1]      The applicant, Ms Stephanie Stanaway, has applied by originating application for an order under s 14 of the Wills Act 2007 declaring a document to be the valid will of Francis Aonui Kereopa (Mr Kereopa).  For convenience, I will refer to this document as “the will”.

[2]      All parties directed to be served, have been served.  All of those parties have now entered into a deed of family arrangement made on the basis that the will would be declared the valid will of Mr Kereopa.

[3]      The parties sought an order by consent that the will be declared the valid will. The matter came before me in the Duty Judge list.   I advised counsel that, in my judgment, this was not a matter where the Court could simply declare the will to be valid because the parties consented to such an order.  That was not a reflection on the intention  of  the  parties,  but  on  the  nature  of  the  document  and  the  solemnity required.  I therefore adjourned the application to consider the evidence.

[4]      The application is supported by the following evidence:

(a)     An affidavit of Ms Stanaway.   Ms Stanaway is Mr Kereopa’s stepdaughter.  Mr Kereopa had no other children.  On matters relevant to  Mr  Kereopa’s  testamentary  intentions,  Ms  Stanaway  said  that Mr Kereopa gave her a copy of a will which he said that his solicitor, Dr Kidd, had drafted and that Mr Kereopa had made photocopies. There is a copy attached to Ms Stanaway’s affidavit and at the top of the two pages of the will there are initials “J K”.  Ms Stanaway said that Mr Kereopa did not sign it in front of witnesses, but she was aware he gave initialled copies to family members.

(b)      There  is  an  affidavit  from  Dr  Kidd.    He  confirmed  that  the  will

annexed to Ms Stanaway’s affidavit is the will he drafted on or about

1   October   2011   following   a   discussion   over   the   phone   with Mr Kereopa.   Dr Kidd said that he went to Mr Kereopa’s home to finalise  instructions.    Dr  Kidd  asked  Mr  Kereopa  if  he  wanted Dr Kidd to help him sign the will, but Mr Kereopa said that it should

just be sent to him in the mail.  That is what Dr Kidd did.  Dr Kidd said he recognises the initials on the two pages of the copy of the will attached to Ms Stanaway’s affidavit as Mr Kereopa’s initials.

(c)      The third affidavit is from Mr Kingi Ihaka.   Mr Ihaka had known Mr Kereopa since 1959 and had been in military service with him.  He said he was very close to Mr Kereopa and that he and his wife were Mr  Kereopa’s  oldest  and  closest  friends.     Mr  Ihaka  said  that Mr Kereopa regularly confided in him and told Mr Ihaka that on his death     he     would     leave     everything     to     his     stepdaughter, Stephanie Stanaway.  Mr Ihaka is named in the will as Mr Kereopa’s personal representative, with Mr Troy Nathan as the alternative if Mr Ihaka was unable to act.

[5]      There was originally some opposition to Ms Stanaway’s application, but there

was no formal evidence in support of that opposition and it has now been withdrawn.

[6]      Under s 14 of the Wills Act, I have to be satisfied that the document that I have referred to as “the will” appears to be a will, that it is not a valid will because it does not comply with s 11 of the Wills Act, and that I am satisfied that the document expresses Mr Kereopa’s testamentary intentions.

[7]      The document clearly is a will, in terms of its contents and format.  It is not a valid will because it has not been signed and witnessed as required by s 11.

[8]      I am satisfied that the will expresses Mr Kereopa’s testamentary intentions. In these circumstances I am satisfied that an order should be made declaring the will to be the valid will of Francis Aonui Kereopa.

[9]      In accordance with the agreement of the parties, there is no order as to costs. [10]     Probate of the will may now be sought following which the parties can give

effect to their agreement recorded in the deed of family arrangement.  I commend the

parties for their efforts which have resulted in this settlement.

Woodhouse J