Estate of Ngaira

[2025] NZHC 2280

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-000447

[2025] NZHC 2280

IN THE MATTER OF

Section 14 of the Wills Act 2007

IN THE MATTER OF

The estate of CHRISSIE NGAIRA, formerly of Auckland, latterly of Christchurch,

Retired, Deceased

IN THE MATTER OF

an application by JASON KEWENE

ALLAN of Oxford, Canterbury, Translator, for an order that a document be declared a valid will of the deceased CHRISSIE NGAIRA, formerly of Auckland, latterly of Christchurch, Retired

Hearing:	(On the papers)
Counsel:	B J Fuller for Applicant
Judgment:	12 August 2025

JUDGMENT OF LA HOOD J

[1]                 Jason Allan (the applicant) applies for an order that a draft will of his mother, Chrissie Ngaira, be declared a valid will under s 14 of the Wills Act 2007 (the Act).

Background

[2]                 Ms Ngaira died on 21 May 2025. She executed a will on 14 July 2016 that appointed her husband, Jason Cooper, as executor and disposed of her entire estate to Mr Cooper.

RE ESTATE OF C NGAIRA [2025] NZHC 2280 [12 August 2025]

[3]                 The application  is  supported  by  affidavit  evidence  from  the  applicant, Mr Cooper and Amelia Spinks, former  solicitor  at  Sutcliffe  Matson  Law,  who  Ms Ngaira instructed to prepare a new will (the draft will).

[4]                 The evidence establishes that Ms Ngaira and Mr Cooper instructed Ms Spinks to prepare mutual wills in 2022. Drafts wills were prepared and sent to Ms Ngaira by email, along with will signing instructions. However, the wills were not signed by either Ms Ngaira or Mr Cooper prior to Ms Ngaira’s death. Ms Ngaira was diagnosed with motor neuron disease around the time of instructing Ms Spinks to prepare the draft wills. Mr Cooper explains that they were unable to attend Sutcliffe Matson’s offices to execute the wills due to Ms Ngaira’s illness, and shortly after the wills were drafted, the couple moved from Auckland (where Sutcliffe Matson’s offices are located) to Canterbury.

[5]                 Mr Cooper believes Ms Ngaira received but did not properly read the email containing the will signing instructions. He believes Ms Ngaira thought that the wills had been completed and nothing further needed to be done. He says her medical condition affected her ability to focus on tasks and this may have contributed to her not properly reading the email containing the will signing instructions. He states that Ms Ngaira gave no indication to him that she was unhappy with the wills that had been drafted and that he considers the unsigned will to be Ms Ngaira’s last will. He has also not signed his draft will as he was unaware that he needed to do anything further, but is now making arrangements to sign it. The estate comprises Westpac bank accounts and a mobility van, with a total value of approximately $70,000.

[6]                 There are limited differences between the executed will and draft will. The draft will appoints the applicant as executor (as opposed to Mr Cooper), but still disposes of the entire estate to Mr Cooper. The other difference is that it is drafted as a mutual will (meaning disposition of the estate to Mr Cooper is made on terms mutual to those contained in Mr Cooper’s contemporaneous draft will).

The law

[7]                 This Court has the power under s 14 of the Act to validate a document that appears to be a will, does not comply with s 11 of the Act and came into existence in

or out of New Zealand, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

[8]                 In making its determination as to whether to validate the document, the Court may consider the document, evidence regarding the signing and witnessing of the document, evidence about the deceased person’s testamentary intentions, and evidence of statements made by the deceased person.

[9]                 The Court should give full vent to the purpose of s 14 to validate documents that plainly express the deceased’s testamentary intentions. The exercise of the power is concerned with substance over form and a robust approach is required.1

Decision

[10]              I am satisfied that those who have an interest in this application have been properly notified and there is no opposition to it.

[11]              In terms of the other requirements of s 14, the draft will is a document that appears to be a will and does not comply with s 11 of the Act as it was not signed and witnessed as required.

[12]              The evidence is clear that Ms Ngaira and Mr Cooper intended to finalise their draft wills, but the failure to do so was an oversight. This was likely caused by a combination of the difficulties with attending  Sutcliffe  Matson’s  offices  due  to Ms Ngaira’s illness, Ms Ngaira likely misunderstanding the will signing instructions (also due to her illness) and  the  couple  moving  from  Auckland  to  Canterbury. Mr Cooper’s evidence that he considers the draft will to be Ms Ngaira’s final will, and the limited differences between her executed 2016 will and the draft will, favour validation, despite the three years that passed between the draft will being prepared and her death.

1      Mihinui v Bowman [2021] NZHC 1991 at [19]–[20]; citing Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11], and Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].

[13]              I am therefore satisfied the draft will expresses Ms Ngaira’s testamentary intentions. Accordingly, I make an order declaring valid the draft will annexed as Exhibit “AS-2” to the affidavit of Ms Spinks dated 13 June 2025.

La Hood J

Solicitors:

Sutcliffe Matson Law, Auckland for Applicant