Estate of Rooney

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-194 [2015] NZHC 461

IN THE ESTATE OF JOSEPH ROONEY of Waikanae, New
Zealand, Deceased

In Chambers: On papers

Judgment:

13 March 2015

JUDGMENT OF THE HON JUSTICE KÓS

[1] Mr Joseph Rooney died at Waikanae on 28 May 2014. He had made a valid will in March 1994. He tried to make a new will on 25 September 2009. But that document is signed by one witness only. So it is not a valid will.1 He tried to modify that September 2009 instrument by purported codicils dated 24 February
2012 and 17 January 2014. The first was not witnessed at all. The latter was witnessed but, as with the purported will, by one witness only. So none of the three instruments are valid.

[2] Mr Nathan Rooney, the deceased’s grandson and the executor named in the September 2009 instrument, applies for orders that the three instruments be declared the valid will and codicils of Mr Joseph Rooney.

[3] The beneficiaries under the 1994 will are Mr Joseph Rooney’s three children,

Michael, Kieron and Jeanette. They are also the beneficiaries under the 2009

1 Wills Act 2007, s 11.

RE: JOSEPH ROONEY [2015] NZHC 461 [13 March 2015]

instrument. The variations between the two instruments are relatively modest. Michael, Kieron and Jeanette all support the present application. All those with interests under the 1994 will and the 2009 instrument consent to the orders sought.

[4] In terms of s 14:

(a) the instruments indeed appear to be intended as a will and two codicils;

(b) they do not comply with s 11 of the Wills Act 2007; (c) they came into existence in New Zealand; and
(d)I am satisfied, on the face of the instruments and the evidence of Mr Nathan Rooney, that they express the testamentary intentions of Mr Joseph Rooney.

[5] Accordingly I make orders declaring:

(a) Exhibit A to the affidavit of Mr Nathan Rooney dated 4 March 2015 to be the valid will of Mr Joseph Rooney;

(b) Exhibit B to the same affidavit to be a valid first codicil to that will;

and

(c) Exhibit C to the same affidavit to be a valid second codicil to that will.

Stephen Kós J

Solicitors:
Integra Law Limited, Paraparaumu

CaseChat Overview and Summary

The matter before the High Court of New Zealand was a determination of whether three documents were to be declared as the valid will and codicils of Joseph Rooney, who died in Waikanae in 2014. The first document was a will dated March 1994, which was deemed valid. Two subsequent documents were purported to be a will and codicils dated September 2009, February 2012, and January 2014, respectively. These later documents were not valid due to not meeting the witnessing requirements under the Wills Act 2007. The grandson and named executor of the September 2009 will, Nathan Rooney, applied for the three instruments to be declared as valid. The beneficiaries under the 1994 will and the 2009 instrument supported the application, as did all interested parties under the 1994 will and 2009 instrument.

The central legal issue was whether the three instruments should be declared valid despite not complying with the statutory requirements for witnessing. The Court had to determine whether the instruments were intended to be a will and codicils, if they complied with the Wills Act 2007, if they were created in New Zealand, and if they expressed the deceased's testamentary intentions. The Court found that the instruments were intended to be a will and codicils, did not comply with the Act, were created in New Zealand, and did express the deceased's intentions.

In declaring the three instruments valid, the Court relied on the evidence provided by Nathan Rooney and the similarity between the 1994 will and the 2009 instrument. The Court made orders declaring the 1994 will as valid, and the 2009, 2012, and 2014 documents as valid codicils to that will. The Court did so under section 14 of the Wills Act 2007, which allows for the declaration of invalid wills and codicils as valid if certain conditions are met.

The Court's final orders declared the 1994 will as the valid will of Joseph Rooney, and the 2009, 2012, and 2014 documents as valid codicils to that will. This decision ensures that Joseph Rooney's testamentary intentions are carried out as expressed in the three instruments, despite their non-compliance with the witnessing requirements under the Wills Act 2007.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established