Estate of Purcell

[2025] NZHC 2143

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-000309

[2025] NZHC 2143

IN THE MATTER OF

Section 14 of the Wills Act 2007

IN THE MATTER OF

the estate of KEVIN JOHN PURCELL of Wellington, New Zealand, Catholic Priest (Deceased)

IN THE MATTER OF

an application by BERNARD MICHAEL PURCELL of Taupo, Retired

Applicant

Hearing:	(On the papers)
Counsel:	M B Ast for Applicant
Judgment:	1 August 2025

JUDGMENT OF LA HOOD J

[1]                 The applicant applies for an order that a draft will of his brother, Kevin Purcell, be declared a valid will under s 14 of the Wills Act 2007 (the Act).

Background

[2]                 Mr Purcell died at Porirua on 21 December 2024. The applicant is his brother and the sole executor named in his will dated 29 April 2010. The applicant remains the sole executor in the draft will, prepared in 2020, that is the subject of this application.

[3]                 The applicant and his wife, Judith Purcell, have both sworn affidavits setting out the basis on which they say the draft will should be declared valid.

RE ESTATE OF K J PURCELL [2025] NZHC 2143 [1 August 2025]

[4]                 The applicant states that he was very close with his brother, whom he loved and admired greatly. The applicant describes Mr Purcell as a kind, generous, intelligent and courageous person with immense perseverance. He says this is demonstrated by Mr Purcell’s 30-year commitment as a pilot and graduating from Otago University to become a Catholic priest to allow him to better serve his community. The applicant says he and Mr Purcell shared many traits, and one of those was keeping diaries throughout their  lives.  Although the applicant cannot locate  Mr Purcell’s diary for the year 2020, he has written in his own diary about the circumstances surrounding the preparation of the 2020 draft will.

[5]                 On 6 January 2020, the applicant met with Mr Purcell and spent a significant amount of time discussing the changes he wished to make to his will. The applicant noted these changes on a copy of Mr Purcell’s 2010 will. Mr Purcell wanted the draft will to reflect the changes in his circumstances since his 2010 will. The changes included removal of gifts of his Otago University academic gown, a book cabinet, and collection of theological books, as Mr Purcell had already gifted these items between 2010 and 2020.

[6]                 A gift of $10,000 to Mr Purcell’s sister was removed because Mr Purcell felt she would benefit more from receiving it before he died. Mr Purcell gifted the first part of that sum to his sister in July 2020, but she died prior to receiving the second instalment of $5,000 on 22 September 2020.

[7]                 The applicant did not want the proposed gift of $20,000 to him and, in substitution, Mr Purcell wished to recognise the applicant and his wife’s three children (Mr Purcell’s niece and nephews), who were close to him, namely Joanna Purcell, Gerard Purcell and Brendon Purcell. With their inclusion, Mr Purcell changed the provision made for six charities in the 2010 will from a one-sixth share each of the estate’s residue to one-ninth shares, with the niece and nephews then receiving a one- ninth share each of the residuary of the estate.

[8]                 Once the meeting was concluded, the applicant handed a copy of the 2010 will with his handwritten changes to his wife for typing. On 20 February 2020, the applicant wrote in his diary that he met with Mr Purcell to show him the typed will.

He has produced a copy of his diary entry for this date.  He wrote in his diary that  Mr Purcell approved the draft will except Mr Purcell was going to add one more payment to someone, with the will then being divided by 10, and was going to sort it out with his Wellington solicitor.

[9]                 After Mr Purcell approved the draft will, the applicant gave the typed will to Mr Purcell and did not discuss it further. He and his wife assumed that Mr Purcell took the draft will to his solicitors to have it finalised and did not give it a second thought.

[10]              Mr Purcell’s health began to deteriorate in early 2024. While helping him organise his papers, the applicant and his wife came across his unsigned typed 2020 will. They then later came across a handwritten note that appears to have been made after the 2020 draft will.  At the time of its discovery, the applicant wanted to ask  Mr Purcell about the handwritten note, but Mr Purcell’s health was too poor. He therefore has limited knowledge of when the note was made and Mr Purcell’s intentions in respect of it. The applicant says that it has been written after September 2020 as it records the applicant and Mr Purcell’s sister’s death. The applicant notes that it is odd that the handwritten note appears to relate to the 2010 signed will rather than the 2020 draft will that Mr Purcell had approved and intended to formalise.

[11]              The applicant says that he believes the draft will prepared in 2020 represents Mr Purcell’s clear and testamentary intentions. On the other hand, he has no knowledge of the circumstances surrounding the handwritten note and does not believe that it fully represents the deceased’s clear testamentary intentions.

[12]              The applicant’s wife, Judith Purcell, confirms Mr Purcell’s narrative. She explains that Mr Purcell suffered a large stroke in early 2024 followed by a series of small strokes from which he never recovered. She says that when she and the applicant discovered Mr Purcell’s unsigned draft will and later found the handwritten note, they were unclear as to why the draft will had not been signed and believed that the handwritten note was just Mr Purcell’s ponderings, possibly written when his physical and mental health were weakening. She says that given her close relationship with Mr Purcell, she believes she can confidently state that his 2020 draft will clearly

represents his testamentary intentions. With no immediate family of his own, the applicant, herself, and their children became Kevin’s immediate family and he wanted to have their children’s relationship to him recognised.

[13]              I consider the handwritten note is incomplete and has some perplexing aspects. For example, it names two of the three children of the applicant and Mrs Purcell with no explanation for  why  the  third  child  should  be  excluded.  Second,  it  names Mr Purcell’s sister’s son as a beneficiary when he had been estranged from the family for many years and Mr Purcell had no established relationship with him. It may be that he simply confused the name of one of his nephews for another. On the other hand, the note is otherwise consistent with the draft will, as it divides his estate into one-ninth shares, names the same charities and deletes the gifts to Mr Purcell’s sister and the applicant.

[14]              Boldt J directed that the proceedings be served on Mr Purcell’s sister’s son, Craig Ranapia. Following service, Mr Ranapia has provided an email to the applicant’s solicitors. That email states that Mr Ranapia has reviewed the proceedings and received independent advice. He says that he does not object to this application to have the draft will validated, and appears to accept that there may have been a mix up due to his late uncle’s longstanding ill health.

[15]              Each of the charities, except one, that have an interest under the executed will have signed forms consenting to the draft will being validated. The remaining charity has advised through their solicitors that they neither consent to, nor oppose, the application.

The law

[16]              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.

[17]              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.

[18]              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

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

[20]              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.

[21]              I am satisfied that the draft will expresses Mr Purcell’s testamentary intentions. In reaching this conclusion I have regard to the clear evidence of the applicant and Mrs Purcell that the draft will expresses Mr Purcell’s wishes; the general consistency between the 2010 will and the draft will apart from the addition of the niece and nephews; and the acceptance by Craig Ranapia that the handwritten notes appear to reflect a mix up caused by Mr Purcell’s ill health. The draft will was carefully prepared with the assistance of the applicant and his wife. Their evidence is supported by the applicant’s contemporaneous diary entry. They have provided clear evidence it represents his testamentary intentions and the failure to execute it appears to have been an oversight. By contrast, there is no evidence surrounding the circumstances of the later handwritten note, and the note appears incomplete and at odds with Mr Purcell’s 2020 clearly expressed intentions.

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

[22]              I therefore make an order validating the draft will annexed as Exhibit B to the applicant’s affidavit dated 11 April 2025.

La Hood J

Solicitors:
Le Pine & Co, Taupō for Applicant