In the Matter Of an application for leave to appeal to the Court of Appeal in the Estate Of Edward Watson, of Putaruru, Retired Blacksmith, deceased

[2024] NZHC 2996

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-613156

[2024] NZHC 2996

UNDER	the Senior Courts Act 2016, s 56
IN THE MATTER OF	an application for leave to appeal to the Court of Appeal
IN THE ESTATE OF	EDWARD WATSON, of Putaruru, Retired Blacksmith, deceased

On the papers:
Counsel:	C Y Simes for Applicant
Judgment:	15 October 2024

JUDGMENT OF GRAU J

[Application for leave to appeal]

[1]    On 4 September 2024, I issued a minute declining a review of a decision by a Registrar refusing to grant probate in this matter.1 The Registrar declined to grant probate because the applicant, Mr Watson, who lives in Australia and is a named executor in the relevant will, swore his affidavit in support of the application for probate in reliance on a copy of the will, rather than having with him the original will document itself. The original will is held by the Probate Registry in the Wellington High Court. The applicant now seeks to appeal my decision declining review and has applied for leave to appeal to the Court of Appeal accordingly.

[2]    My 4 September minute set out my reasons for declining a review of the Registrar’s decision, which are brief and can be set out in full:

1      Re Watson HC Wellington CIV-2024-485-613156.

ESTATE OF EDWARD WATSON [2024] NZHC 2996 [15 October 2024]

[2]        While I acknowledge it does not appear to be in dispute that the copy of the will Mr Watson refers to in his affidavit is indeed a copy of the original will (and there is no dispute that the document held by Probate is in fact the original will), Form PR 1 of the High Court Rules 2016 requires Mr Watson to be able to depose in an affidavit supporting probate that he believed the document “now produced and shown to [him]” was the deceased’s last will. This is interpreted as requiring each executor to swear the affidavit while sighting the original will.

[3]        I can understand that this requirement may appear to be an unnecessary administrative step, but the requirement for executors to be able to depose that a particular document is the last will of a testator is integral to the procedure regarding administration of probate. Mr Watson’s position is not helped by the decision of Re Crawford, where MacKenzie J made it clear that the possibility of filing electronic documentation does not negate the requirement that an original document is provided.

[4]        Although Mr Watson lives overseas, it does not appear that he lives out of the reach of postal services, nor is there reason to believe the courier fees would be unduly expensive. I am advised by the Probate Office that posting a will overseas so that an executor may sight an original copy of it is a common exercise and, as is implicit in the decision of Registrar Shakes, Probate would not ordinarily grant probate where an executor has sworn an affidavit on the basis of a copy.

[5]        Given that the grant of probate in New Zealand has always and continues to operate in this manner, and absent any extraordinary reasons why Mr Watson should not be required to follow the orthodox process, I decline his application for review.

[3]    Mr Watson has applied for leave to appeal my decision on the basis that it is wrong in law. Ms Simes submits that production of the original will to the High Court suffices to meet the document requirement for the grant of probate. Requiring every executor to depose against the original will, instead of simply accepting production of the original will by one executor, causes unnecessary risk of loss or damage to the original will. Ms Simes says this is contrary to the purposes and objectives of probate procedures. Ms Simes submits this issue is in the public interest, given the number of wills validated each year in New Zealand, many of which will involve an overseas executor. It is also suggested that, because the matter came to me as duty Judge, I did not have time to give it full consideration. Had I been able to do so, Ms Simes submits that a different outcome would have been reached.

[4]    An appeal to the Court of Appeal in this case is governed by s 56 of the Senior Court Act 2016 (the SCA) and r 20.22 of the High Court Rules 2016 (the HCR). An application for review of a Registrar’s decision under r 2.11 of the HCR is properly

considered an interlocutory application.2 This means that s 56(3) of the SCA applies and leave of this Court is required. The principles applying to applications for leave to appeal under s 56(3) are set out in the Court of Appeal decision in Greendrake v District Court of New Zealand as follows:3

… the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made. The following considerations were recognised as relevant on an application for leave to appeal:

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[5]    In the circumstances of this case, I do not believe that the interests of justice will be served by granting leave to appeal.

[6]    As explained by McKenzie J in Re Crawford, because the grant of probate revolves around the authenticity of the purported original will document itself, providing an affidavit sworn in reliance on a copy of the original will is not enough.4 Inspection of an original document by an executor is important. Sighting an original enables the signatures of the testators to be examined, the condition of the will to be examined, and may alert an executor to the possibility of pages or sections of a will that may be missing.5 Where, as in this case, there are two executors, it is not inconceivable that one executor may believe a certain document to be the full original will, but the other does not. In such cases, probate of course could not be granted. Because of such possibilities, both named executors must sight and provide assurances as to the same physical document where the physical document is still intact.

2      High Court Rules 2016, r 2.11(1).

3      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] (footnotes omitted).

4      Re Crawford [2014] NZHC 609, [2014] 3 NZLR 38 at [11].

5 At [12].

[7]    As noted in my 4 September minute, the plain words of Form PR 1 in the HCR require Mr Watson to be able to swear that “the document … now produced and shown to [me] is the deceased’s last will”. A plain reading of these words, taking into account the well-established requirement an original will document be sighted by executors and provided to the Registry where possible, indicate that Mr Watson must be able to depose that a particular document is the final will of the deceased. Mr Watson would be certifying that it is those particular pieces of paper with that particular ink and text, now held by Registry, that is the final will. It is not possible for him to do so by looking at an electronic copy of a will.

[8]    I indicated in my earlier minute that it is common practice for original wills to be sent overseas via courier so that named executors living overseas may accurately depose as to the authenticity of the document. I can easily accept that this process does increase the chances that an original document may be lost or damaged. But as Ms Simes will know well, there is a process for dealing with a lost or damaged will.6 The original will in this case is, as I understand it, currently with counsel, having been returned to the Court so that it can be sighted by Mr Watson. Whether it will be lost or damaged in transit is purely hypothetical at this point. If, however, the circumstances are that Mr Watson is not in a position to be reached by postal services, this should be made known, as it may bear on whether he is also in a position to discharge his duties as executor.

[9]    In my view, therefore, there is no arguable error of law. Nor do I agree that this is an issue of public interest; the requirement that original documents be sighted and provided is well-settled and applies to all those seeking probate in New Zealand. As noted in my earlier minute, the Probate team regularly requires and receives affidavits from executors who live overseas, in which they confirm the original document as the will. It is an uncontroversial and orthodox practice. The circumstances of this case do not warrant further delay in granting leave.

6      See Chapter 10 of Earles and others Dobbie’s Probate and Administration (6th edition, LexisNexis, Wellington, 2014).

[10]   Leave to appeal my decision to decline a review of the Registrar’s decision to refuse probate, recorded in my minute of 4 September 2024, is declined accordingly.

Grau J

Solicitor:

Kiwilaw Probate and Estates Ltd