Estate of Wilkins

[2025] NZHC 31

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3331 [2025] NZHC 31

IN THE MATTER OF

Section 124 of the Wills Act 2007

AND

IN THE MATTER OF

an application by Public Trust for an order that a document be declared a valid Will of

the deceased LYNETTE JOY WILKINS Applicant

Hearing:	On the papers
Counsel:	L S Lynch for the Applicant
Judgment:	24 January 2025

JUDGMENT OF HARVEY J

This judgment is delivered by me on 24 January 2025 at 4 pm pursuant to r 11.5 of the High Court Rules.

…………………………………………….

Deputy Registrar

Solicitors:

Public Trust, Hamilton   [email protected]

Re Estate Wilkins [2025] NZHC 31 [24 January 2025]

Introduction

[1]                  Lynette Wilkins died unexpectedly on 4 May 2022. She executed two wills with Public Trust, one in 2015 and one in 2019. In February 2022, Ms Wilkins had Public Trust prepare a new will but died before it was executed. Ms Wilkins niece, Ms Levien was named as the executrix to the 2022 will but has renounced her right. The 2022 will appoints Public Trust executor in the alternative.

[2]                  Public Trust seeks now seeks orders granting leave for this matter to be made by way of originating application without notice to any other person. Orders are also sought that an undated document be declared valid as the last will of Ms Wilkins pursuant to s 14 of the Wills Act 2007. Public Trust then asks that its costs for this application be paid from the estate.

Background

[3]                  The 2015 will left Ms Wilkins estate to her husband, Mr Wilkins, if he survived her by 30 days. He passed away on 5 April 2017. The 2019 will was signed by Ms Wilkins and witnessed correctly but was not dated. The original copy of the will appears to be lost and the witnesses have not been able to be contacted, but a copy of the 2019 will was provided to Public Trust by Ms Levien.

[4]                  On 28 February 2022, Ms Wilkins created the 2022 will via telephone interview with Ms Neru, at Public Trust. Ms Neru completed an online will as Ms Wilkins gave instructions over the phone. Ms Neru has sworn an affidavit setting out the details of her contact with Ms Wilkins and her testamentary instructions. Ms Wilkins sent a detailed email on 15 April 2022 requesting certain amendments be made and spoke on the phone with Ms Neru to discuss additional amendments on 22 April 2022. These were her final instructions before she unexpectedly died.

Should leave be granted as sought?

[5]                  Originating applications may be  made  without  notice  where  a  ground  in  r 7.23(2)(a) of the High Court Rules 2016 applies and when all reasonable inquiries have been made and steps taken to ensure the application contains all relevant material.

[6]                  In “without notice” applications, all persons affected by the will must have a proper opportunity to be represented in the proceedings, including beneficiaries under the previous will.1  In Re Campbell (deceased), this Court found that the  grounds in  r 7.23(2)(a) for granting leave were made out where all persons who would be affected by the making of a without notice order under s 14 of the Wills Act were aware and had consented to the making of the order.2

[7]                  There are a number of beneficiaries present in the 2019 will who are absent in the 2022 version. Messrs Edwin and Darrel Ireson were each set to receive one quarter of the estate in the 2019 will but are excluded from the 2022 will. The evidence includes forms signed by those beneficiaries under the 2019 will consenting to the 2022 will being declared as valid, including both Messrs Edwin and Darrel Ireson. Because consent to the validity of the 2022 will has been provided, I am satisfied that the grounds in r 7.23(2)(a) are made out. Leave is granted to make this application without notice.

[8]  Jeffrey Kinera was a secondary beneficiary in the 2019 will and was provided for to the extent that, if Philomena Kinera died before Ms Wilkins, her share of the estate would pass to Mr Kinera. However, if Ms Kinera survived Mr Kinera at the time of Wilkins death, she would be the final beneficiary and he was not otherwise provided for in the will. I note that there is no form on file by Jeffrey Kinera consenting to the 2022 will being declared valid. Public Trust has not directed submissions as to whether his consent was sought or if he has capacity to do so.

[9]                  Even so, I remain satisfied that leave should be granted despite Mr Kinera’s status as a secondary beneficiary.3 Ms Kinera did provide consent to the validity of the 2022 will, and, to the Court’s knowledge, she is still alive. For this reason, any role of Mr Kinera in the estate is not relevant to this assessment.

1      Re Hickford (2009) 34 FRNZ 159 (HC) at [4].

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

3      For completion, I note that Mr Jake Nicholson also does not have a consent form on file. However, he is one of the beneficiaries who was absent from the 2019 will and was added to the 2022 will to receive $1000 of the estate. As such, I am satisfied Mr Nicholson would have no objection to the application.

Is the 2022 Will valid?

[10]Section 14 of the Wills Act 2007 states:

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.

[11]Ms Lynch submits that that the 2022 will should be declared as valid as it:

(a)records Ms Wilkins testamentary instructions and intentions;

(b)appears to be a will as it makes specific bequests to named beneficiaries; and

(c)does not comply with s 11 because it was not signed by Ms Wilkins and was not witnessed by two independent persons.

[12]              Counsel submitted that Ms Wilkins’s sudden death prevented her from executing the 2022 will. Ms Lynch cites authority that any evidence demonstrating the will-maker wished to change their will despite an untimely demise will be reflective of their final testamentary intentions.4

4      Re Brundall (deceased) [2011] 3 NZLR 528 at [20]–[22].

[13]              The 2022 document is for all intents and purposes a will. The evidence is clear that the 2022 will expresses Ms Wilkins’s final testamentary intentions. Ms Neru has sworn an affidavit in support of the application. On 28 February 2022, Ms Wilkins gave Ms Neru instructions to change her will. From that date Ms Wilkins and Ms Neru were in communication about finalising the will. On 15 April 2022, Ms Wilkins sent a clear email to Ms Neru confirming the various amendments she sought to the will. There was a further phone conversation on 22 April 2022. These were the last testamentary intentions Ms Wilkins expressed before she died three weeks later.

[14]              For this reason I am satisfied that the 2022 will expresses Ms Wilkins testamentary intention and that the will should be declared valid.

[15]              Public Trust also seeks  that  the  costs  of  this  application  be  paid  from  Ms Wilkins estate. I consider that appropriate.

Decision

[16]              Leave to make this application by way of originating application without notice is granted.

[17]              I declare as the valid last will of Lynette Joy Wilkins the document annexed as Exhibit “F” to the affidavit of Danielle Cheree Neru dated 9 December 2024.

[18]The costs of this application are to be paid from the estate of Ms Wilkins.

Harvey J