Estate of Te Ahu

[2024] NZHC 1096

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-000631

[2024] NZHC 1096

IN THE MATTER OF

the Estate of MARETA JOYCE TE AHU of Dargaville, Retired

Deceased

IN THE MATTER OF

an application by DWAYNE BRADY BUSH of Taranaki, Unemployed

Applicant

Hearing:	(On the papers)
Counsel:	A W Hammond for Applicant
Judgment:	6 May 2024

JUDGMENT OF LA HOOD

(Application for Order declaring document to be a valid will)

[1]                 On 20 October 2023, Dwayne Bush (the applicant) applied for an order pursuant to s 14 of the Wills Act 2007 that a document be declared a valid will of his late aunt, Mareta Joyce Te Ahu (the deceased). Mr Bush provided:

(a)the document sought to be declared a valid will, which appears to be a will but which is neither signed nor witnessed;

(b)an affidavit from himself; and

(c)an affidavit by Karene Kaio, a solicitor who took instructions from Ms Te Ahu before she died.

RE ESTATE OF MARETA JOYCE TE AHU [2024] NZHC 1096 [6 May 2024]

[2]                 Ms Te Ahu died on 2 July 2023. The evidence is that she was not survived by any spouse or de facto partner, or children. The document sought to be declared a valid will states that Mr Bush is to be appointed as executor, and leaves her estate in four equal shares to the following people when they attain the age of 20 years:1

(a)Amazon Bush;

(b)A;

(c)B; and

(d)C.

[3]                 The draft will states that the four equal shares may be used by the executor of the will towards the maintenance, education, or advancement in life of any of the four beneficiaries until they have attained the age of 20 years. Until that time, the shares are to be held in trust. Mr Bush deposes that the gross value of Ms Te Ahu’s estate does not exceed $50,000.

[4]                 Ms Kaio’s affidavit states that she met with Ms Te Ahu on 22 June 2023 and took instructions for a will and enduring power of attorney, believing at that time  Ms Te Ahu was fully competent and able to make decisions. She prepared a draft will in accordance with Ms Te Ahu’s instructions. Ms Kaio then says that on 29 June 2023, she phoned the rest home in which  Ms Te Ahu  was  residing  and  was  told  that Ms Te Ahu had been admitted  to  Dargaville  Hospital.  When  Ms  Kaio  visited  Ms Te Ahu at the hospital the next day, she formed the opinion that Ms Te Ahu was not lucid and therefore was unable to sign her will. Ms Te Ahu then died on 2 July 2023.

[5]                 The matter initially came before McQueen J as Duty Judge, and she issued a minute dated 2 November 2023 directing the filing of:

1      The children’s names have been anonymised in their best interests.

(a)evidence as to the age, status, and if necessary, consents of the four proposed beneficiaries;

(b)evidence  as  to  any  other  persons  with  a  potential  interest  in   Ms Te Ahu’s estate, and if necessary, their consent;

(c )a memorandum of counsel addressing why a without notice application is appropriate in the circumstances and why the substantive application should be granted in the circumstances.

[6]                 Ms Kaio filed an affidavit dated 5 April 2024 stating that the named beneficiaries A, B and C are minors and are the children of the applicant, Mr Bush. The proposed beneficiary Amazon Bush is 19 years old and is also Mr Bush’s son. The affidavit confirms there  are  no  other  persons  with  a  potential  interest  in  Ms Te Ahu’s estate.

[7]                 A memorandum of counsel dated 29 April 2024 has been filed by the applicant’s solicitor, Alistair Hammond, which states that:

THE Without Notice Application is appropriate in the circumstances as there is no need for the Applicant to notify anyone else of the application, and therefore the substantive application should be granted in the circumstances.

[8]                 Mr Bush’s affidavit in support of the application also confirms that he has made inquiries for the purposes of the Status of Children Act 1969 as to the existence of a parent or child of Ms Te Ahu (in addition to what is already known to him) who could claim an interest in the estate. This included the inquiries specified in s 5A(2) of the Act, namely causing a search to be made of the Register of Instruments, Declarations and Orders maintained by the Registrar-General pursuant to s 9 of the Act and looking through papers of Ms Te Ahu that have come to his notice in the course of searching for a will made by Ms Te Ahu. The result of the inquiries is that there was no discovery of any parent or child and a certificate to that effect from the Registrar-General is annexed to the affidavit. The affidavit also confirms that Ms Te Ahu was not survived by a de facto partner entitled to succeed on intestacy and there are no persons with a beneficial interest in the estate of Ms Te Ahu on intestacy. Finally, he states that the gross value of the estate does not exceed $50,000.

[9]The applicable principles under s 14 of the Wills Act 2007:

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.

[10]              The remedial nature of the discretion to validate a will under s 14 was emphasised in Re Zhu (Deceased):2

... A further important principle to be taken into account is that the new powers conferred by the Act to validate and correct wills are clearly intended by Parliament to be remedial. The procedures to be adopted ought to reflect that remedial principle. Undue expense and formality in the procedures should not be imposed. The procedures should, consistent with the overriding principle that all parties who may be affected must be given notice, be such that applications are dealt with promptly, inexpensively and efficiently.

Decision under s 14 of the Wills Act

[11]              I am satisfied on the balance of probabilities that the draft  will expresses   Ms Te Ahu’s testamentary intention. This is evident from the affidavit of Ms Kaio, who met with Ms Te Ahu at her rest home on 22 June 2023 and took will and enduring power of attorney instructions. She deposes that she believed at the time of taking instructions that Ms Te Ahu was fully competent and able to make decisions. Based

2      Re Zhu (Deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [3].

on those discussions, she prepared a draft will in accordance with the instructions in the terms already mentioned.

[12]              The only reason it appears the draft will was not executed is because, when Ms Kaio phoned to arrange a suitable time to do so on 29 June 2023, Ms Te Ahu had been admitted to Dargaville Hospital. Ms Kaio visited Ms Te Ahu at the hospital the following day and formed the opinion that she was not lucid and was therefore unable to sign her will.

[13]              It appears clear therefore that the draft will expresses Ms Te Ahu’s testamentary intentions, the fact that she had instructed Ms Kaio to prepare the will indicates she did not want her estate to be disposed of in accordance with intestacy, and there is no delay here that suggests she may have changed her mind.

[14]              In terms of the requirements of s 14, the draft will clearly appears to be a will, it does not comply with s 11 of  the  Wills  Act,  and  it  came  into  existence  in  New Zealand.

[15]              I am therefore satisfied it is appropriate to make an order declaring the draft will to be the valid will of Mareta Joyce Te Ahu.

La Hood J

Solicitors:
Hammonds Law, Dargaville for Applicant