Estate of Waa

[2023] NZHC 3749

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2997

[2023] NZHC 3749

IN THE MATTER OF	The Estate of WUTI WELLINGTON MURIWAI WAA Applicant
AND IN THE MATTER OF	An application by JACQUELINE LESLIE DEMETER

Hearing:	On the papers
Counsel:	A Gilchrist for Applicant
Judgment:	18 December 2023

JUDGMENT OF LANG J

This judgment was delivered by Justice Lang On 18 December 2023 at 3.00 pm

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

Date:…………………………

Solicitors/counsel:
Boyle Mathieson/A Gilchrist, Auckland

Re Estate of Wuti Wellington Muriwai Waa [2023] NZHC 3749 [18 December 2023]

[1]    Mr Wuti Wellington Muriwai Waa died on 7 July 2023. He was serving a sentence of imprisonment at the time of his death.

[2]    Mr Waa’s only asset was a credit balance of approximately $56,000 held in a Kiwibank account. He was not married at the time of his death and had only one child, his daughter Jacqueline Leslie Demeter.

[3]    Whilst in prison Mr Waa executed a document on 20 June 2015. Ms Demeter believes that it represents his testamentary intentions. However, the document does not satisfy the formal requirements of the Wills Act 2007 (the Act). Ms Demeter therefore seeks an order under s 14 of the Act declaring this document to be a valid will.

Background

[4]    The document in question is headed “LAST WILL AND TESTAMENT OF WUTI WELLINGTON MURIWAI WAA”. It then goes on to provide:

I, Wuti Wellington Muriwai Waa an adult residing at Hawke’s Bay Regional Prison, Private Bag 1600, Napier 4142 being of sound mind, declare this to be my Last Will and Testament. I revoke all former Wills and Codicils previously made by me.

Article I

I appoint Jackqueline Leslie Waa/Kee-Demer born on the 12th day of April 1989 as my Personal Representative to execute and administer this Will and ask that she be permitted to serve without Court supervision and without posting bond. If Jackqueline Leslie Waa/Kete-Demer is unwilling or unable to serve, then I appoint Mary Ann Waa-Huiti as my Personal Representative to administer this Will and ask that she be permitted to serve without Court supervision and without posting bond.

Article II

I direct my Personal Representative to pay out of my residuary estate all of the expenses of my last illness, administration expenses, all legally enforceable creditor claims, estate taxes, inheritance taxes and all other Government charges imposed by reason of my death without seeking reimbursement from or charging any person for any part of the taxes and charges paid, and if necessary, reasonable funeral expenses, including the cost of any suitable marker for my grave without the necessity of an order of Court approving said expenses.

Article III

I bequeath and give all the rest and remainder of my residuary estate as follows:

100% to my daughter Jackqueline Leslie Waa/Kete-Demer.

Article IV

Should my daughter Jackqueline Leslie Waa/KeteDemer not survive me by thirty (30) days, her share shall be distributed to her then surviving children in equal shares.

Under penalties for perjury, we, the undersigned Testator and Witnesses declare:

1.That the Testator executes this instrument as his Will;

2.That in the presence of witnesses the Testator signed his signature;

3.That the Testator executed the Will as his free and voluntary act for the purposes expressed in it;

4.That each of the witnesses in the presence of the Testator and each other signed the Will as witness;

5.That the Testator was of sound mind and more then eighteen

(18) years of age.

[5]    Mr Waa then signed the document and two persons who occupied cells adjoining Mr Waa’s cell witnessed his signature.

The Law

1. 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.

[7]    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

[8]    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

Decision

[9]    I have no doubt that Mr Waa intended the document that he signed to operate as his last will and testament. It clearly represents his testamentary intentions. I therefore make an order under s 14 of the Act declaring the document dated 20 June 2015 to be a valid will.

Lang J

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

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

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