Estate of Klaphake
[2025] NZHC 1517
•11 June 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-764
[2025] NZHC 1517
UNDER section 14 of the Wills Act 2007 IN THE MATTER
of the Estate of JOAN GWENDOLINE KLAPHAKE
AND
an application by JOHN GERARD KLAPHAKE for an order that an invalid will be validated under s 14 of the Wills Act 2007 Applicant
Hearing: 3 June 2025 Appearances:
E M S Cox and D Viatos for Applicant
Judgment:
11 June 2025
JUDGMENT OF McQUEEN J
[1] John Klaphake applies by way of originating application for an order under s 14 of the Wills Act 2007 (the Act) for a document to be declared a valid will of his mother, Joan Gwendoline Klaphake. The document is a draft will (the Draft Will), prepared on Mrs Klaphake’s instructions on 11 March 2021. Mrs Klaphake died on 12 March 2021. Mr Klaphake also seeks a correction to cl 3(b) of the Draft Will under s 31 of the Act and an order that his costs be paid out of the estate.
Approach to the application
[2] Mrs Klaphake’s last known executed will is dated 16 November 1978 (the 1978 Will).
Estate of JOAN GWENDOLINE KLAPHAKE [2025] NZHC 1517 [11 June 2025]
[3] The application and supporting affidavits were served on all the beneficiaries contained in the 1978 Will and the Draft Will, being Mr Klaphake’s sisters, Marilyn Ashby, Andrea Collins and Elizabeth Jarvis (the Sisters). The Sisters filed a notice of opposition and affidavits from each of them and from Mr Collins, the husband of Ms Collins. Mr Collins has acted as a spokesperson for the Sisters.
[4] Following correspondence between the parties in April 2025, the Sisters confirmed they no longer opposed the application and sought to withdraw their notice of opposition.1 The submissions by counsel for Mr Klaphake and the common bundle for the hearing of the application were served on the Sisters. On 3 June 2025, the morning of the hearing before me, Mr Collins sent an email to the Court, in which he responded to some aspects of the submissions filed for Mr Klaphake. There was no appearance by or for the Sisters at the hearing.
[5] As this Court has recently observed, absence of opposition is a factor counting in favour of the application being granted.2 But the Court must still assess the application on its merits, according to law.3 Under r 7.40 of the High Court Rules 2016,4 if a party is neither present nor represented at the hearing of an application, the Judge may determine the application in the parties’ absence in any manner that appears just. I have considered all the evidence filed. I heard submissions from Mr Viatos, counsel for Mr Klaphake, at the hearing. I consider it just also to have regard to the email from Mr Collins.
Background
[6] Mrs Klaphake and her late husband owned and lived in a property in Wellington (the Property) from the 1960s, raising Mr Klaphake and his sisters there (the Children). After a period of years away from the family home, Mr Klaphake returned to live at the Property in the early 1980s and has lived there ever since.
1 This was confirmed in a joint memorandum from the parties dated 3 April 2025.
2 Estate of Hudson [2025] NZHC 281 at [5].
3 At [5] citing Mihinui v Attorney-General for the Ministry of Education [2017] NZHC 654 at [13].
4 Rule 7.40 applies to proceedings commenced by way of original application, under r 19.10 of the High Court Rules 2016. Applications under ss 14 and 31 of the Wills Act 2007 are to be commenced by originating application: r 19.2(xa) of the High Court Rules 2016.
[7] The 1978 Will provided that if Mrs Klaphake’s husband survived her for 14 days he was to be appointed executor and receive her estate. Otherwise, Mr Klaphake and Mrs Klaphake’s sister were to be appointed as executors, and following the payment of debts and expenses, the estate was to be divided equally between the Children. Mrs Klaphake’s husband died in 1986.
[8] In 2010, Mr Klaphake says he and Mrs Klaphake decided to look to the future and undertake some re-ordering of their respective affairs. They consulted Chris O’Connor, a lawyer (and acquaintance of Mr Klaphake’s from school days). Each of Mrs Klaphake and Mr Klaphake settled a trust.
[9] Mrs Klaphake settled the Klaphake Tinhan Trust (the KT Trust). The trustees of the KT Trust were Mrs Klaphake and Mr Klaphake. The final beneficiaries relevantly include the Children, and the discretionary beneficiaries are Mrs Klaphake, the final beneficiaries and their issue.
[10] Mr Klaphake settled the Drake Trust. The trustees are Mr Klaphake and Straco Trustees Ltd (a trustee company connected to Mr O’Connor). The final beneficiaries are the children of the Sisters. The discretionary beneficiaries include Mr Klaphake as settlor, any sibling of Mr Klaphake (being the Sisters), the final beneficiaries and their issue.
[11] Mrs Klaphake then transferred the Property to the KT Trust and the Drake Trust as tenants in common (in half shares). The purchase price was $500,000. The Drake Trust paid a $50,000 deposit (which Mr Klaphake explains was paid over a few months). Mrs Klaphake loaned the remaining purchase price of $200,000 to the Drake Trust and $250,000 to KT Trust as recorded in (unsigned) acknowledgments of debt.
[12] Mr Klaphake says that Mrs Klaphake put the Property into a trust to protect the asset in the event that she required care at a higher level than he could provide. He says she was concerned that the house not be lost, as she wanted it to be a refuge for the family. Mr Klaphake says that Mrs Klaphake offered half the house to him at that time. Initially this was on the basis he would pay off the remaining amount, but they
later orally agreed it would be better if he maintained and improved the house to maintain and increase its value.
[13] Mr Klaphake describes the living arrangements with his mother, saying that they always worked together in a way which ensured her needs were met and he could achieve the things important to him. Over time, and as her health declined, this meant he was more involved in assisting her as a caregiver. Mr Klaphake says he has undertaken or organised and paid for significant maintenance and improvements at the Property, although he did not retain receipts for the expenditure incurred by him as he did not appreciate the relevance of that until recently.
[14] Mr Klaphake also says that in late 2020 Mrs Klaphake became concerned about ensuring matters about her estate were up to date. A longstanding and close friend of Mrs Klaphake, Shona Kramer, deposes that Mrs Klaphake had been mentioning changing her will for a few months before Mrs Klaphake died. Ms Kramer says Mrs Klaphake was aware her intention for Mr Klaphake to be able to live in the Property as long as he wanted it was going to cause some upset, especially with Ms Collins and Ms Ashby. Ms Kramer says Mrs Klaphake also acknowledged to her that Mr Klaphake had dedicated his life to Mrs Klaphake and put his own money into the Property.
[15] Mr Klaphake says he encouraged Mrs Klaphake to discuss her plans with the Sisters and says he understood she did so. The evidence from Ms Jarvis, Ms Ashby and Ms Collins disputes the nature and content of the discussions Mr Klaphake refers to. Mr Klaphake says that at Mrs Klaphake’s request, he made an appointment for her to see Mr O’Connor on 11 March 2021.
[16] Mr O’Connor’s evidence is that Mrs Klaphake indicated she wanted to ensure Mr Klaphake would be able to continue to live in the Property, and that Mr O’Connor had suggested leaving him a temporal occupation right to meet that need and that this was a common method for people who shared accommodation. Mr O’Connor says that in response to his question whether she had discussed distribution of her estate with her other children, Mrs Klaphake said that they were in broad agreement that Mr Klaphake be able to continue to live at the Property.
[17] Mr O’Connor considered that Mrs Klaphake’s instructions were clear, and it was apparent to him that she had already given thought to most of the instructions she wanted to give. Mr O’Connor says Mrs Klaphake carefully considered who she should appoint as executors, ultimately instructing him that Mr Klaphake and Ms Ashby should be appointed. It was agreed that Mr O’Connor would prepare a will for Mrs Klaphake to review and sign. He indicated he would contact her when it was ready, but no firm appointment was made.
[18] Mr O’Connor explains that he does not retain any documents relating to the will instruction, other than the Draft Will, which he prepared on the same day as the appointment with Mrs Klaphake. He recalls taking notes in the meeting but has not been able to locate those, suggesting that he may have accidentally discarded them as the Draft Will was not signed nor was the file billed.
[19]The Draft Will prepared by Mr O’Connor:
(a)revokes all earlier wills;
(b)appoints Mr Klaphake and Ms Ashby as executors;
(c)provides for the payment of debts and funeral expenses;
(d)forgives any debts owed to Mrs Klaphake by the KT Trust and Mr Klaphake;
(e)provides for jewellery and personal items to be distributed in accordance with the agreement reached with the Children or as determined by the executors in the case of any disagreement;
(f)provides for the residue to be divided equally between her daughters;
(g)directs the KT Trust trustees to allow Mr Klaphake a life interest in the KT Trust’s half-share of the Property provided he pay outgoings and attend to routine maintenance and that on expiry of that interest, the
KT Trust’s half share is to be divided equally between Mrs Klaphake’s children.
[20] Mr O’Connor says that there is a typographical error in the Draft Will. This is in cl 3(b), which states that Mrs Klaphake forgives all debts owed to her by the KT Trust and John Klaphake. Mr O’Connor explains that the reference to Mr Klaphake should have read as a reference to the Drake Trust, as the purpose was to forgive the debt arising from the 2010 transactions and, to his knowledge, Mr Klaphake did not owe any debt to Mrs Klaphake personally. Mr O’Connor says he expects that this error would have been picked up on review of the Draft Will with Mrs Klaphake.
[21] On 12 March 2021, while the day began normally, Mrs Klaphake collapsed in the afternoon, becoming unconscious and mostly unresponsive, and she died at hospital later that day.
[22]At the time of Mrs Klaphake’s death, her estate comprised;
(a)a debt of $250,000 owed by the KT Trust;
(b)a debt of $200,000 owed by the Drake Trust;
(c)savings and investments totalling around $70,000, as well as her personal jewellery; and
(d)a debt to Mr Klaphake of approximately $12,500 for the funeral expenses.
[23] After Mrs Klaphake died, Mr Klaphake found some handwritten notes made by her in a notebook about her testamentary intentions. While the notes are undated, Mr Klaphake’s view is that they were probably written in early 2021 as he and Ms Jarvis had been encouraging her to make written notes before meeting with a lawyer. There are five versions of the notes, which comment on Mrs Klaphake’s intentions for her assets, primarily the Property, but also that her jewellery should be
gifted to her daughters. Mr Klaphake accepts that the Sisters should receive the jewellery.
[24] The Sisters (and Mr Collins) each depose that Mrs Klaphake always intended to treat her children equally on her death and that the Draft Will therefore is not a true reflection of Mrs Klaphake’s final testamentary wishes. As already mentioned, the Sisters disagree with Mr Klaphake’s description of aspects of discussions between them and their mother. It is apparent that the Sisters had not been aware of the 2010 transactions at the time and this has been upsetting for them, as has their lack of knowledge about the Draft Will until after Mrs Klaphake’s death. They suggest that Mr O’Connor had a conflict of interest and therefore Mrs Klaphake did not receive independent advice. They also raise some concerns about Mrs Klaphake’s testamentary capacity on 11 March 2021 and whether Mr Klaphake may have had an undue influence on her in relation to the terms of the Draft Will (and possibly also the 2010 transactions).
Applicable law
[25]Section 14 of 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.
[26] The correct approach to the application of s 14 was recently set out by Fitzgerald J in Re Ansin, citing the helpful summary by McKenzie J in Re Beaumont and Re Campbell:5
(a)great care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so;
(b)under s 14(2), the inquiry is focussed on the will-maker’s intentions, rather than the formal steps taken to implement those intentions;
(c)the evidence that may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant considerations;
(d)where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect in preference to intestacy; and
(e)there must be cogent evidence that the document reflects the deceased person’s testamentary intentions but the standard of proof to be applied is the ordinary civil standard; that is, the balance of probabilities.
[27] In Gladwin v Public Trust, Woolford J observed that an unsigned will could be validated, provided there is cogent evidence the document was prepared on the instructions of the deceased, and that the deceased intended to sign it but did not get around to doing so before his or her death.6 Where there is evidence of a deceased’s intentions, it is better to give effect to those intentions than to the disposition that would otherwise apply.7
5 Re Ansin [2023] NZHC 3179 at [16] citing Re Beaumont (deceased) [2013] NZHC 2719 at [11]; and Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15]–[22].
6 Gladwin v Public Trust [2011] 3 NZLR 566 (HC) at [22].
7 Caird v Caird [2018] NZHC 1605 at [39] citing Re Campbell, above n 5, at [18].
Discussion
[28] I indicate at the outset that I am satisfied I do not need to address in any detail issues of testamentary capacity or undue influence. I reiterate that there is now no opposition to the application for validation of the Draft Will and these issues have not been further advanced by the Sisters.
[29] In addition, there is insufficient evidence supporting a suggestion of lack of capacity. The Sisters simply say that given Mrs Klaphake died the day after she gave will instructions to Mr O’Connor, it is clear that she was not in good health at that time and so an inference of lack of capacity may be drawn. While Dr Wong’s evidence is of limited value because his last encounter with Mrs Klaphake was in January 2021, the evidence from Mr O’Connor and Ms Kramer about their interactions with Mrs Klaphake in the days before her death do not raise any concern about her testamentary capacity.
[30] There is also insufficient evidence supporting a suggestion of undue influence by Mr Klaphake. The Sisters suggest that the 2010 transactions and the Draft Will reflect Mr Klaphake’s undue influence on Mrs Klaphake. Mr Klaphake provides a different explanation for Mrs Klaphake’s decisions on these matters. I note Mr Klaphake did not attend the meeting between Mrs Klaphake and Mr O’Connor at which Mrs Klaphake gave her instructions for the Draft Will. While I acknowledge the Sisters feel aggrieved that they did not know earlier about Mrs Klaphake’s arrangements in relation to the Property, this in itself does not establish that undue influence led to those arrangements.8
[31] Accordingly, I turn to consider the requirements for validation of the Draft Will under s 14 of the Act.
[32] There is no dispute that the requirements of s 14(1) are met. The Draft Will appears to be a will. It does not comply with the formal requirements of a valid will
8 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [35], approving the judgment of Winkelmann J in Green v Green [2015] NZHC 1218 at [100].
under s 11 of the Act as it is neither signed by Mrs Klaphake nor witnessed. It came into existence in New Zealand.
[33] Section 14(2) of the Act requires the Court to be satisfied that the Draft Will expresses Mrs Klaphake’s testamentary intentions.
[34] In considering this, I acknowledge again that Ms Ashby, Ms Jarvis and Ms Collins are upset at their lack of knowledge about the 2010 transactions and their mother’s apparent intention to prepare a new will in the terms of the Draft Will. While there are disagreements between the Sisters and Mr Klaphake as to conversations that were held, ultimately, I do not consider the existence or contents of those discussions to be critical to the decision I must make.
[35] The Draft Will, although not executed, is expressed in clear terms. While it is unfortunate that Mr O’Connor did not retain his notes of the meeting with Mrs Klaphake at which she gave her will instructions, he has deposed that he drafted the Draft Will the same afternoon that he met with her. He has also deposed that it reflects her instructions. The Draft Will is also generally consistent with the evidence from Ms Kramer about her earlier discussions with Mrs Klaphake. Both Mr O’Connor and Ms Kramer are independent witnesses as they are unaffected by the outcome of the application. Mr O’Connor is also an officer of this Court.
[36] Importantly, I consider that the Draft Will reflects Mrs Klaphake’s changed circumstances between 1978 and 2021.9 Mrs Klaphake lived at the Property with her husband and children. Mr Klaphake lived there with her since the earlier 1980s—it had been their home for close to 40 years. Without diminishing in any way the relationships between Mrs Klaphake and her daughters, I accept that Mr Klaphake played a considerable role in caring for his mother and contributed time and money to the maintenance and improvement of the Property. Ms Kramer has independently confirmed the importance Mrs Klaphake attached to these matters.
[37] I accept that Ms Kramer also records a comment from Mrs Klaphake about wishing to ensure that the Property would be there for her daughters if they fell on
9 Gladwin v Public Trust, above n 6, at [27].
hard times. There is also reference in Mrs Klaphake’s handwritten notes to the Property being a refuge for family if needed. Mr Klaphake himself recalls Mrs Klaphake voicing a wish along these lines at some point (although he says not in the months before her death).
[38] The handwritten notes are undated. The references in the notes to trusts makes it likely the notes were made after the 2010 transactions. Mr Klaphake suggests they were likely made in early 2021 given that was a time Mrs Klaphake was considering how she wanted to deal with her estate. This seems plausible. There is no suggestion Mrs Klaphake took the notes with her to the meeting with Mr O’Connor. His evidence establishes that Mrs Klaphake went to that meeting with relatively clear views about what she wanted to achieve in her will. I accept that her intentions likely crystalised on speaking with Mr O’Connor, receiving his advice, and giving him her instructions. In these circumstances, I conclude that the prior handwritten notes are of minor significance compared to her instructions to Mr O’Connor.
[39] As there was only one day between giving Mr O’Connor her instructions and Mrs Klaphake’s death, there was little time for any change of mind about her testamentary intentions and there is no evidence that she did so.
[40] Accordingly, I am satisfied on the balance of probabilities that the Draft Will expresses Mrs Klaphake’s testamentary intentions at the time of her death.
Correction to cl 3(b) of the Draft Will
[41] I am also satisfied that it is appropriate to make the correction sought to cl 3(b) of the Draft Will. The evidence before me is that the relevant debt due to Mrs Klaphake was from the Drake Trust and there is no evidence of a personal debt due to her by Mr Klaphake.
Costs
[42] The costs sought by Mr Klaphake are set out in sch 1 of the written submissions of his counsel. At the hearing, Mr Viatos sought to update the costs estimate by the addition of the costs incurred by Mr Klaphake in April and May, in the
sum of $8,136.83. Given that sch 1 had already accounted for an approximate sum of costs in the sum of $5,000, the additional amount sought brings the total costs to
$56,828.68. Mr Viatos confirmed that no further costs would be sought from the estate in relation to the hearing before me.
[43] I am satisfied that the Sisters have had notice of the costs and disbursements sought by Mr Klaphake. The costs and disbursements are not only referred to in the submissions but also supported by the inclusion of detailed documentation in the bundle of documents. Both the submissions and bundle of documents were served on the Sisters. Further, I acknowledge that the Sisters have willingly prioritised fairness and equity over personal gain in agreeing to not oppose Mr Klaphake obtaining his expenses from the estate.10
Result
[44] I grant the application for validation of the Draft Will. I make an order declaring the Draft Will (exhibit CO1 to the affidavit of Christopher O’Connor dated 15 October 2024) to be the last valid will of Joan Gwendoline Klaphake under s 14 of the Wills Act 2007.
[45] I correct cl 3(b) of the Draft Will to read “to forgive any sums owed to me by the Klaphake Tinhan Trust and the Drake Trust”.
[46] I order that costs and disbursements in the sum of $56,828.68 are payable to Mr Klaphake from the estate of Joan Gwendoline Klaphake.
McQueen J
Solicitors:
Gibson Sheat, Wellington for Applicant
10 As confirmed in the email dated 3 June 2025 from Mr Collins.
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