Estate of McClutchie

[2025] NZHC 2518

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-24

[2025] NZHC 2518

UNDER

section 14 of the Wills Act 2007

IN THE MATTER

of the Estate of TEUA TUTAKI McCLUTCHIE

BETWEEN

RONGOMAI TUHOE McCLUTCHIE

Applicant

Hearing:	On the papers
Appearances:	N Weatherhead for Applicant
Judgment:	1 September 2025

JUDGMENT OF McQUEEN J

[1]    This is an originating application by Rongomai McClutchie for an order under s 14 of the Wills Act 2007 declaring that a document be declared a valid  will of  Teua (Bill) Tutaki McClutchie.1

Background

[2]    On 15 November  2023,  Bill  met  with  lawyer  Neil  Weatherhead  of Wilson Barber & Co to give instructions to prepare a will. Mr Weatherhead has provided an affidavit in support of the application. He explains that while Bill was not a long-standing client of his, Bill had come to see Mr Weatherhead some three or four years earlier about a separate matter. Mr Weatherhead suggested to Bill that he

1      For clarity  in  the  judgment  about  whether  I  am  referring  to  Bill  McClutchie  or  Rongomai McClutchie, I refer to them by their first names.

Re: Estate of McClutchie [2025] NZHC 2518 [1 September 2025]

complete enduring powers of attorney for property and personal care and welfare, as well as a will.

[3]    Mr Weatherhead has provided his handwritten notes of his meeting with Bill. These  reflect  that   Bill’s   instructions   were   to   appoint   his   nephew   Rongomai McClutchie as executor and trustee under the will and leave the entirety of the estate to him. Rongomai was also to be appointed as Bill’s attorney under the enduring powers of attorney.

[4]    Mr Weatherhead asked that Bill send him photograph identification for Rongomai, so that he could ensure Rongomai was named accurately in the will and enduring powers of attorney. Mr Weatherhead explains that at the meeting, while Bill said he did not have any children nor a partner, he did not mention he had an existing will. Bill explained that he was travelling regularly to Gisborne for medical treatment, but Mr Weatherhead did not gain an impression there was a need for urgency in preparing the documents.

[5]    Rongomai explains in his affidavit that he became whāngai to Bill’s parents when he was six and was raised with the family on a farm, where Bill was the farm manager. In his early 20’s, Rongomai took over as farm manager. Bill then undertook civil contracting works. Rongomai explains that during his formative years Bill was a father figure for him, taking him under his wing and teaching him all the farming and practical skills he has. While Rongomai moved to Australia for a period, in 2018 he and his immediate family returned to New Zealand to help Bill on some of the civil projects he was engaged in.

[6]    Rongomai confirms that Bill’s health was fading in late 2023 and he travelled to Gisborne regularly for medical treatment. Rongomai explains that Bill told him that he had seen his lawyer as he wanted to change his will, mentioning several times that he  was  appointing  Rongomai  as  his  attorney  and  trustee  of  his  estate.   On    10 December 2023, Bill visited Rongomai to get a copy of his driver’s licence so that he could send it to the lawyer.

[7]    Bill sent a copy  of  Rongomai’s  driver’s  licence  to  Mr Weatherhead  on  13 December 2023. Mr Weatherhead then prepared the will and powers of attorney. The will reflects the instructions given by Bill on 15 November 2023 and recorded in Mr Weatherhead’s handwritten  notes.  A  copy  of  the  draft  will  is  attached  to  Mr Weatherhead’s affidavit (the draft Will). In the morning on 14 December 2023, Mr Weatherhead emailed Bill to advise that the documents were ready for him. Later that day, Mr Weatherhead learned that Bill had died that day.

[8]    Following subsequent enquiries made by Mr Weatherhead, an earlier will was discovered, dated 13 August 1993 (the 1993 Will). The 1993 Will named Bill’s mother, sisters, niece and nephews as beneficiaries.

[9]    In accordance with the Court’s directions, those beneficiaries and one of the executors under the 1993 Will (the other being deceased) were served with this proceeding. No step has been taken by any of those persons served with the proceedings.

The application

[10]   Rongomai  seeks   an   order   that   the   draft   Will   made   on   or   about  14 December 2023,  a  copy  of  which  is  attached  to   his  affidavit  sworn  on     16 December 2024 and marked “B”, be declared valid as the last will of Bill.

[11]   Under s 14 of the Wills Act, the Court may declare a document to be a valid will if it is satisfied the document appears to be a will but does not comply with the requirements for validity of wills in s 11, if the Court is satisfied that the document expresses the deceased person’s testamentary intentions.

[12]   The draft Will appears to be a will, but does not comply with s 11 of the  Wills Act because it is not signed or witnessed.

[13]In exercising its discretion under s 14, the Court may consider:2

2      Wills Act 2007, s 14(3).

(a)the document;

(b)evidence on the signing and witnessing of the document;

(c)evidence on the deceased person’s testamentary intentions; and

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

[14]   Based on the affidavits filed by Mr Weatherhead and Rongomai in support of this application, I am satisfied that the document, being the draft Will attached to Rongomai’s affidavit sworn on 16 December 2024 marked as exhibit “B”, expresses Bill’s testamentary intentions. My conclusion is reinforced by none of the beneficiaries under the 1993 Will having taken any step in this proceeding.

Result

[15]   I therefore declare that the document, being the draft Will attached to the affidavit of Rongomai Tuhoe McClutchie sworn on 16 December 2024 and marked as exhibit “B”, is a valid will of Teua Tutaki McClutchie.

McQueen J

Solicitors:
Wilson Barber & Co, Gisborne for Applicant