Estate of Phillips

[2024] NZHC 1135

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-9 [2024] NZHC 1135

IN THE MATTER OF

The Estate of the late ALFRED CHARLES PHILLIPS

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER OF

An application by NEOLENE JOYCE WALSH and MALCOLM GARY PHILLIPS

Applicants

Hearing:	On the papers
Appearances:	V T A Mills for Applicants
Judgment:	8 May 2024

JUDGMENT OF CULL J

[1]                 This proceeding concerns the estate of Alfred Phillips (the deceased) and an application by his children Ms Walsh and Mr Phillips, under s 14 of the Wills Act 2007 seeking the Court’s validation of a Will document, which was signed by their father at the Ngaruawahia Community House in Ngaruawahia dated 7 July 2014.

[2]                 This matter came before McQueen J, who issued a Minute1 identifying that insufficient information had been provided by the applicants in support of their belief that the document should be declared a valid Will, when there was no information about its creation or how and when it was located. Such information was required before the Court could be satisfied that the Will document expresses the deceased’s

1      Minute of McQueen J dated 10 April 2024.

Estate of Phillips, [2024] NZHC 1135, [8 May 2024].

testamentary intentions and the applicants were directed to file further evidence addressing these matters.

[3]                 Both applicants have filed supplementary affidavits, setting out the facts relating to the Will document and its signing. Ms Walsh deposed that  the  deceased told her that he had signed the Will document personally, in front of a staff member of the Ngaruawahia Community House and his brother’s ex-partner. The document had been prepared by the Community House.

[4]                 After the deceased signed the Will document, the original Will document was handed to Ms Walsh for safekeeping, before her return to her home in Australia. Both children believe that the Will document expresses their  father’s  testamentary intentions, which were that following their mother’s death, the deceased told his daughter that he wished for both his children to be provided for in the event of his death.

[5]                 On the death of the deceased, Ms Walsh provided a copy of the Will document to her brother so that they were both aware of their father’s intention on his death.

[6]                 Although it is unclear whether the two witnesses of the Will document signed in the presence of the deceased and in the presence of each other, all signatures are dated on 7 July 2014. I consider that it is a reasonable inference that the  document was signed by the deceased in the presence of both witnesses.

[7]                 The applicants have now provided information about the Will document’s creation and how it was retained by Ms Walsh until her father’s death. The applicants are the deceased’s only children. The Will document’s provisions are consistent with the evidence from Ms Walsh that her father wished to provide for both his children on his death.

[8]                 I am satisfied that the Will document should be validated as reflecting and expressing the deceased’s testamentary intentions.

[9]Accordingly, I make the following orders:

(a)Leave is granted for this application to be made without notice to any other person; and

(b)The Will document signed by the deceased and two witnesses on

7 July 2014, a copy of which is marked “A” attached to the proposed draft order, be declared valid as the last Will of the deceased.

Cull J

Solicitors:

Franklin Law, Pukekohe