Estate of Shepherd

[2024] NZHC 3757

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-809

[2024] NZHC 3757

IN THE MATTER OF	Section 14 of the Wills Act 2007
IN THE MATTER OF	the estate of ROBYN JANELLE SHEPHERD
IN THE MATTER OF	an application by LYNDIE JAME BRUNSDON and JASON ANDREW SHEPHERD

Hearing:	On the Papers
Counsel:	K A Byrne for Applicants
Judgment:	10 December 2024

JUDGMENT OF CHURCHMAN J

[1]        By application dated 4 December 2024 the applicants have applied for two orders:

1.an order granting leave for the application to be made without notice,

2.an order that the document copy of which is marked ‘A’ and attached to the affirmation of the applicants filed in support of this application be declared valid as the last will of the deceased.

[2]        The affirmation  in  support  was  dated 18  November 2024.    It was a joint affidavit affirmed by both the applicants. It confirmed the following:

(a)Robyn Janelle Shepherd (the deceased), who was the mother of the applicants, died on 9 October 2024.

Estate of Shepherd [2024] NZHC 3757 [10 December 2024]

(b)The deceased had executed a will dated 11 August 1998. However, on 13 September 2024 the deceased instructed a solicitor Hineawe Green to prepare a new will.

(c)A copy of the draft unsigned will prepared by Hineawe Green was attached to the application and marked as exhibit ‘A’.

(d)The people with beneficial interests pursuant to the 11 August 1998 will are the two applicants and their sister, Marnie Louise Cleary. The signed consent of Marnie Cleary to the application was appended to the joint affirmation.

[3]        The draft will made to two changes to the 11 August 1998 will. The executors were changed (to the applicants) and the draft will provided for gifts of $5,000 each to each of the deceased’s grandchildren.

[4]        The application was supported by an affidavit of Hineawe Green. She confirmed that on the 13th of September 2024 she met with the deceased to discuss changes to the 11 August 1998 will. She confirmed that the deceased instructed her to change the executors and appoint the two applicants as executors of her new will and that the deceased also instructed that the new will contain a clause making provision for a gift of $5,000 each, to each of the deceased grandchildren.

[5]        Hineawe Green prepared the will in accordance with the instructions. That is the document attached as exhibit ‘A’ to the joint affirmation of the applicants.

Analysis

[6]        Having reviewed the application and supporting documentation, I am satisfied that the draft will appended as exhibit ‘A’ to the joint affirmation was prepared by Hineawe Green on the instructions of the deceased and that it represents her testamentary intentions.

[7]        I am also satisfied that it is appropriate for this application to be dealt with without notice on the basis that all of the beneficiaries of the 1998 will have consented to that.

[8]        There are numerous cases where, in similar circumstances a draft will has been validated.1

[9]        I therefore make a declaration pursuant to s 14 of the Wills Act 2007 validating the draft will, a copy of which is annexed to the joint affirmation as exhibit ‘A’.

[10]      I also order that the costs of incidental to the making of this application be met from the estate of the deceased.

Churchman J

Solicitors:

Harrison Byrne Law, Porirua for Applicants

1      See Re Edmonds [2016] NZHC 2151 and Re Proomhall [2015] NZHC 1349.