Estate of Larking

[2023] NZHC 2786

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-002172

[2023] NZHC 2786

UNDER

S 14 of the Wills Act 2007

IN THE MATTER

of the Estate of ADELAIDE JOSEPHINE LARKING

AND

KIM CLYNO LUKE LARKING and IVAN RELPH MIDDLEMOST

Applicants

on the papers
Counsel:	S J Telford for the Applicants
Judgment:	5 October 2022

JUDGMENT OF TAHANA J

This judgment was delivered by me on 5 October 2023 at 12 noon Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Morgan Coakle, Auckland

the Estate of ADELAIDE JOSEPHINE LARKING [2023] NZHC 2786 [5 October 2022]

Introduction

[1]                 This is a ‘without’ notice application for an order under s 14 of the Wills Act 2007 (the Act) to declare a will valid.

Background

[2]                 The facts, as they appear from the affidavit filed in support of the application, are that the applicants  were appointed the property managers of the deceased  on   22 November 2022. The Family Court issued an order dated 26 January 2023 approving a new will for the deceased for signing and sealing. The will was signed and witnessed by the Deputy Registrar of the Family Court on 10 March 2023 (the will). The will leaves the deceased’s estate to her four children equally unless they predecease her, which is not the case.

[3]                 The deceased died on 27 July 2023. The applicants then applied for probate and were informed that probate could not be granted because there was only one witness to the will. They therefore applied to validate the will.

Analysis

[4]                 The will does not comply with s 11(4) of the Act because it was only witnessed by one person.

[5]                 Section 14 of the Act provides that the High Court may make an order declaring a document that appears to be a will valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.1 The Court may consider:2

(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

1      Wills Act 2007, s 14(2).

2      Wills Act 2007, s 14(3).

(d)evidence of statements made by the deceased person.

[6]                 I am satisfied that the document evidences the deceased person’s testamentary intentions. The draft of the will was approved by the Family Court for signing and sealing. The Family Court directed that the applicants take the will, signed by all parties, to the Auckland Family Court for signing and sealing. The applicants complied with those directions. Unfortunately, the will was only witnessed by one person, the Deputy Registrar of the Family Court. That is the only defect.

[7]                 I am satisfied that the application can proceed without notice in circumstances where the Family Court has approved the content of the will.

[8]                 In the circumstances above, I am satisfied the will documents the deceased’s testamentary intentions. I declare that the will annexed as exhibit E to the affidavit of Kim Larking dated 1 September 2023 is valid.

[9]                 The applicants also seek an order that the costs of, and incidental to, this application be paid out of the estate. The application was necessary due to no fault on the part of the applicants, and I therefore order accordingly.

Tahana J