Estate of Klaphake - [2025] NZHC 1517

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 1517
Decision Date: 11 June 2025

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether a document, which was prepared but not signed by Joan Gwendoline Klaphake before her death, could be considered her valid will. John Gerard Klaphake, the applicant and son of the deceased, sought validation of the document under section 14 of the Wills Act 2007. The court also had to determine if a correction should be made to a clause in the document and whether the applicant’s legal costs should be paid from the estate.

The court examined whether the unsigned document, referred to as the Draft Will, accurately reflected Mrs Klaphake’s testamentary intentions. The Draft Will, prepared by a lawyer on instructions from Mrs Klaphake, included provisions for the distribution of her estate, appointment of executors, and forgiveness of debts. The applicant argued that the document was a true expression of his mother’s wishes, while the opposing parties, Mrs Klaphake’s daughters, disputed this, claiming the document did not reflect her true intentions. The court considered evidence from witnesses, including the lawyer who drafted the will, and assessed whether the document aligned with Mrs Klaphake’s known intentions and changed circumstances.

The court concluded that the Draft Will did express Mrs Klaphake’s testamentary intentions. It noted that Mrs Klaphake had clear instructions for the document and had discussed her wishes with independent witnesses. The court also found sufficient evidence to correct a typographical error in the Draft Will and granted the application for costs to be paid from the estate.

In summary, the court granted the application to validate the Draft Will as Mrs Klaphake’s last will, made a correction to a clause in the will, and ordered that the applicant’s costs be paid from the estate.

Orders