Estate of MacDonald

[2024] NZHC 528

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-149

[2024] NZHC 528

IN THE ESTATE

OF DUNCAN GEORGE MACDONALD

IN THE MATTER

of the Wills Act 2007 and Administration Act 1969

AND

IN THE MATTER

of an application by NOEL ROGER MARSDEN EYLES, TINA JUSTINE
EYLES and ROSE-ANNE MARY PERANA

Applicants

Hearing:	On the papers
Appearances:	G Mason for Applicants
Judgment:	12 March 2024

JUDGMENT OF CHURCHMAN J

Background

[1]    The late Duncan George MacDonald (the deceased) died at Tolaga Bay  on 26 November 2022.

[2]    The deceased had left a handwritten will which didn’t comply with all of the requirements of the Wills Act 2007 (the document).

ESTATE OF MACDONALD [2024] NZHC 528 [12 March 2024]

[3]    The applicants in these proceedings were named as the trustees in the document. Two of the witnesses to the will were the applicants, Noel Eyles (Noel) and Rose-Ann Perana (Rose). They were also beneficiaries in the document alongside Tina Eyles.

[4]    By application dated 23 February 2024 the applicants applied for an order declaring the document to be a valid will and for the grant of probate to the applicants. The application also sought an order declaring the dispositions to Noel and Rose not to be void.

[5]    There is also an application for leave for the originating application to be commenced on a without notice basis.

Analysis

[6]    All persons affected by the application to validate the document as a will have provided affidavits confirming their consent to all of the orders sought.

[7]    In these circumstances I am satisfied that the interests of justice require the application to be determined on a without notice basis as per High Court Rule 7.23(2)(v).

[8]    From reading the extensive affidavit evidence I am satisfied that the document which is sought to be validated as a will meets the requirements of s 14 of the Wills Act in that it was made by the deceased, in New Zealand, and was intended by him to represent his testamentary intentions. I therefore make the order validating the document as the will of the deceased.

[9]    The reason that the applicants need to apply for an order that the dispositions in the will to Noel and Rose are not invalid is that they were witnesses to the will. The affidavits filed confirm that Noel and Rose were unaware that beneficiaries under the will should not be witnesses. The affidavit also explained the particular circumstances in which the will was made. Based on the contents of the affidavit I am satisfied that the deceased knew and approved the dispositions to Noel and Rose and made them voluntarily. I also note that all those who would benefit from the avoidance of the

dispositions have consented in writing to the dispositions and have the legal capacity to do so.

[10]   The interests of justice are therefore served by a declaration that the dispositions to Noel and Rose are not void and I make that declaration.

Outcome

[11]Leave is granted to proceed on a without notice basis.

The handwritten document dated 20.11.2022 signed by the deceased and witnessed by Noel and Rose is validated as a will.

The dispositions in the will to Noel and Rose are declared not to be void.

Churchman J

Solicitors:

Green Law, Palmerston North for Applicant