Estate of Rolston

[2025] NZHC 2874

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-653

[2025] NZHC 2874

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER OF

an application by Alison Lee Scott and Bert Douglas Rolston Jnr for an order that a document be declared a valid will of the

deceased SHARON JULIE ROLSTON

Hearing:	On the papers
Counsel:	B J Gibson and A Kilpatrick for Applicant
Judgment:	1 October 2025

JUDGMENT OF CULL J

[1]    The applicant Ms Scott and Mr Rolston seek an order under s 14 of the Wills Act 2007 (the Act) that a document be declared a valid will of Sharon Julie Rolston (the deceased), who died on 6 May 2025. Ms Scott and Mr Rolston are named as the executors and trustees of the document (the unsigned will) and are the sister and stepson of the deceased respectively.

[2]    The application has been made on a without notice basis on the grounds that all interested parties have consented to the application.

Background to the unsigned will

[3]    The subject document was drafted in the form of a will between 29 April 2025, which was the final attendance on the deceased by her solicitor, and 6 May 2025 when the deceased died.

RE: THE ESTATE OF ROLSTON [2025] NZHC 2874 [1 October 2025]

[4]    The deceased first contacted Mr van Delden of Treadwell Gordon, solicitors in Whanganui in September 2023, when she sought advice for some property matters and enquired about preparing a will.

[5]    From 15 February to 4 July 2024, the deceased requested guides and information about what  was required  for the preparation of her will, but advised   Mr van Delden she was undergoing chemotherapy treatment and would make contact with him when she had a plan. On 4 July 2024, Mr van Delden left it to the deceased to contact him when her health had improved and she was ready to make her will.

[6]    On 12 April 2025, the deceased provided her testamentary  instructions  to Mr van Delden to prepare her will. Between 12 April and 29 April 2025, he visited the deceased several times to take instructions and prepare a draft will, with a final attendance being on 29 April 2025. After minor edits to the document confirming the named beneficiaries and her wishes for arrangements after her death, the deceased confirmed that the contents of the unsigned will were finalised instructions and testamentary intentions.

[7]    Mr van Delden arranged an appointment with the deceased for 6 May 2025 to sign the unsigned will. However, the deceased passed away the night before the designated appointment.

Legal principles

[8]    Under s 14 of the Act, the Court has the power to declare a document a valid will if the document appears to be a will but does not comply with the s 11 requirements for validity of wills, namely that the will-maker must sign the document and at least two witnesses must sign the document in the will-maker’s presence. Importantly, the High Court may make an order declaring the document valid if it is satisfied that the document expresses the deceased person’s testamentary intentions.

[9]    Here, the requirements of s 14(1) are met. The testamentary document, the unsigned will, appears to be a will, it came into existence in New Zealand, and it does not comply with s 11 of the Act, as it was not signed by the will-maker.

Analysis

Without notice application

[10]   The preliminary question for consideration is whether the application may be dealt with on a without notice basis. This application accompanied an affidavit of  Ms Scott annexing the written consent from all persons who were potentially affected by the validation of the document. These persons are the potential beneficiaries under the unsigned will and have formally signed their consent in writing.

[11]   Under r 7.46 of the High Court Rules 2016, I am satisfied in the interest of justice to allow the application to be determined without it being served. All of the potential beneficiaries under the unsigned will have received a copy of this application, had the opportunity to take legal advice, and have provided written consent to this application being made. They have all elected not to seek legal advice and confirm that they are fully aware of the effects of the order being made.

[12]   I am satisfied that, in these circumstances, the application may be determined without being served.

The invalidity of the document

[13]   As the document was unsigned by the deceased, s 11(3) of the Act has not been complied with. The power under s 14 to declare the document a valid will is therefore available.

[14]   It is clear from the affidavit filed by Ms Scott that, in the month before the deceased’s  death,  she  helped  the  deceased  to  arrange  several  meetings  with  Mr van Delden to provide him with her testamentary instructions. She attended those meetings with the deceased. It appears that, at the final attendance on 29 April 2025, the deceased made some minor changes to the document confirming the named beneficiaries’ full names and her wishes for arrangements after her death. After the deceased confirmed that the unsigned will was her finalised instruction and testamentary intentions, an appointment was arranged to have her unsigned will signed

on 6 May 2025. Unfortunately, the deceased died the night before the day of the scheduled appointment.

[15]   The principal enquiry for the Court is whether the unsigned will document expresses the deceased’s testamentary intention. I am satisfied from the evidence filed that the unsigned will does represent the deceased’s testamentary intention.

Orders

[16]I dispense with service of the proceeding.

[17]   I declare that the unsigned document drafted by the deceased’s solicitors on or about 6 May 2025 is the valid will of the deceased.

Cull J

Solicitors:

Treadwell Gordon, Whanganui