Estate of Tawa

[2023] NZHC 2780

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2023-470-127

[2023] NZHC 2780

UNDER

The Wills Act 2007

IN THE MATTER OF

The Estate of MOEWAI TAWA (incorrectly named AUDREY M TAWA in the unsigned will)

AND

IN THE MATTER OF

An application by JANE MCGREGOR and MALCOLM STEWART MCGREGOR as

named Executors in the unsigned will of MOEWAI TAWA

Applicants

Hearing:	On the papers
Counsel:	G R Mathieson for Applicant
Judgment:	4 October 2023

JUDGMENT OF LANG J

[on application for validation of will and grant of probate]

This judgment was delivered by Justice Lang On 4 October 2023 at 2.45 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Garth Mathieson Lawyer, Mount Maunganui South

RE ESTATE OF MOEWAI TAWA [2023] NZHC 2780 [4 October 2023]

[1]    Ms Moewai Tawa, called “Audrey” by her family, died on 10 October 2022. Before she died she asked her sister, Ms Jane McGregor, to purchase a template will kit from a stationery shop. Ms McGregor then completed the first page of the document and Ms Tawa signed that page. Two witnesses who were present  when  Ms Tawa signed the first page of the document also signed that page. Unfortunately, however, they did not complete the balance of the document. This meant the signature line of the will was not signed and witnessed and the will is undated. As a result, the will does not meet the formal requirements prescribed in s 11 of the Wills Act 2007 (the Act).

[2]    Ms McGregor, in her capacity as one of the executors named in the will, now seeks validation of the will under s 14 of the Act. She also seeks probate of the validated will.

Background

[3]    When Ms Tawa died, she was living at an address situated at 30A Thornton Road, Awakeri, Whakatāne. She was physically incapacitated and largely confined to her home address. She suffered from significant health problems.

[4]    Ms McGregor says that her sister told her on a number of occasions that she would like to make a will. However, she questioned the cost of having a lawyer prepare a will. This prompted her to ask Ms McGregor to purchase the will kit from a stationery shop. She also told Ms McGregor that she wanted her five whāngai children to have her house at 30A Thornton Road. She referred to her five whāngai children as her “kids”.

Relevant principles

[5]Section 14 of the Wills Act provides as follows:

14       High Court may declare will valid

(1)This section applies to a document that—

(a)appears to be a will; and

(b)does not comply with section 11; and

(c)came into existence in or out of New Zealand.

(2)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.

(3)The Court may consider—

(a)the document; and

(b)evidence on the signing and witnessing of the document; and

(c)evidence on the deceased person's testamentary intentions; and

(d)evidence of statements made by the deceased person.

[6]    The principles to be applied in the present context are now well established. In short, the onus rests on the applicant to satisfy the Court on the balance of probabilities that the document propounded as the last will of the deceased reflects the testamentary intentions of the deceased.1 The Court is entitled to take into account any evidence that may assist in determining whether the document expresses the testamentary intentions of the deceased.2

[7]    In undertaking the enquiry under s 14 the Court is required to focus on substance and intention rather than form. This is necessary to ensure that “[a] person who in good faith sets out to express testamentary intentions, should not have those thwarted by technicalities”.3

Analysis

[8]    The document that Ms Tawa signed was obviously designed as a template will for persons to complete without having to see a lawyer. The first page of the document begins with the words: “THIS IS THE LAST WILL AND TESTAMENT of me Audrey M Tawa of 30A Thornton Road, housewife”. In all other respects the document is a standard template will.

[9]    As I have already observed, Ms Tawa signed the will at the bottom of the first page. Her signature was witnessed by Ms McGregor’s husband, Mr Malcolm Stewart

1      Kirner v Falloon [2015] NZHC 1873 at [20].

2      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15].

3      Re Estate of Wong [2014] NZHC 2554 at [24].

McGregor, and by Ms Bronwyn Maria Tawa. Each endorsed their signature at the bottom of the first page alongside Ms Tawa’s signature. Unfortunately, however, the remaining two pages of the will were not completed and signed. Nor was the document dated. Ms McGregor says she did not realise it was necessary for the will to be signed and dated at the end of the document.

[10]   Section 14(2) of the Act requires the Court to be satisfied that the document to be validated expresses the deceased person’s testamentary intentions. In the present case it is obvious that the document expresses Ms Tawa’s testamentary intentions even though it has not been dated and signed in accordance with the requirements of the Act. Jurisdiction therefore exists to validate the will.

[11]   It seems clear that the executors will need to deal with several issues arising out of the manner in which the will is framed. Under the will, all of Ms Tawa’s estate is to be divided equally between her children. Ms Tawa must have intended this provision to apply to her whāngai children because she had no children of her own. Applying this interpretation the Thornton Road property will pass to her whāngai children in accordance with her wishes.

[12]   However, Ms Tawa also held interests in parcels of Māori land and she never shared her testamentary intentions in relation to these with Ms McGregor. It is possible that this portion of her estate will need to be dealt with otherwise than in accordance with the provisions of the will because Ms Tawa’s whāngai children may have no right to inherit her interests in the parcels of Māori land. However, that is an issue for the executors to consider.

Result

[13]   I make an order under s 14 of the Act validating the document as Ms Tawa’s last will.

Probate

[14]   The Court will commonly validate a document as a will and then leave it to the executors to apply for probate in the usual way. In the present case I have decided to

grant probate of the will myself for two reasons. First, this is a modest estate and it will inevitably incur further delay and expense if the executors are now required to make a further application for probate.

[15]   More importantly, an application for validation of a will is seldom accompanied by sufficient information to enable the Court to grant probate. The evidence usually relates only to the circumstances in which the document to be validated was created. In the present case, however, the executors named in the will have filed a comprehensive affidavit that provides all the information the Registrar would have required before granting probate. I therefore see no need for the applicants to go to the further expense of filing a new application for probate. I make an order granting probate of the will as sought.

Lang J