In the Matter Of the Estate of Mathew Taiharo Maka Wheta Pepere, also known as Mathew Taiharo Maka Wheta Jonathan of Marton, in New Zealand, Labourer Deceased In the Matter Of An application by Minnie Jessica Rose

[2024] NZHC 2887

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-000598 [2024] NZHC 2887

IN THE MATTER OF

Section 14 of the Wills Act 2007

IN THE MATTER OF

the Estate of MATHEW TAIHARO MAKA WHETA PEPERE, also known as MATHEW TAIHARO MAKA WHETA JONATHAN of

Marton, in New Zealand, Labourer Deceased

IN THE MATTER OF

An application by MINNIE JESSICA ROSE HAUITI-KIRIWEREA, Dannevirke, Head Teacher

Applicant

Hearing:	(On the papers)
Counsel:	R van Duin for Applicant
Judgment:	4 October 2024

JUDGMENT OF BOLDT J

[1]    The applicant, Ms Minnie Hauiti-Kiriwera, applies without notice for an order under s 14 of the Wills Act 2007. Ms Hauiti-Kiriwera seeks an order that two transcribed video recordings, in which her late father, Mr Mathew Pepere, discussed the disposal of the assets after his death, should be regarded as a valid will. She also seeks the leave of the Court for the application to be made without notice to any other person; she has appended documents recording that all her siblings consent to the application and she contends no one else is affected by it.

[2]    Mr Pepere died on 13 January 2024 at Palmerston North Hospital. It is unclear whether he had an existing will — there is no evidence on that question either way —

ESTATE OF MTMW PEPERE [2024] NZHC 2887 [4 October 2024]

but a week before Mr Pepere died the applicant visited him in hospital and sought to engage him in conversation about his assets. By that time, Mr Pepere was very unwell. It was the applicant’s (erroneous) understanding that a  video  recording in  which  Mr Pepere expressed his testamentary intentions would qualify as a valid will.

[3]    Nonetheless, s 14 of the Wills Act allows the Court to validate a document which falls short of the formal requirements of a correctly-executed will. Section 14 provides:

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.

1. 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.

[4]    The applicant appended the transcripts of her conversations with her father to her affidavit. She asks the Court to construe the conversations as a valid will leaving Mr Pepere’s estate in equal shares to his children. For a person in Mr Pepere’s position, that would be an orthodox and uncontroversial way of disposing of his estate.

[5]    I have carefully reviewed the transcripts of the video recordings the applicant and Mr Pepere made. Mr Pepere was plainly very unwell at the time of the conversations, and it is clear that by that stage it was impractical to draft and execute a formal will.

[6]    Nonetheless,  the  application  must  fail.  The  transcripts  do  not  disclose Mr Pepere’s testamentary intentions with sufficient clarity. For example, the first transcript includes the following passages:

Minnie:          What are you gonna do with all your money? Mathew:  What can I do?

Minnie:          Well, who do you want to give it to?

Mathew:        Not your brother *Makes joking face to camera* Minnie:  Laughs

Mathew:        No, just share it to the mokos. Minnie:  Share it out to the mokos?

Mathew:        Yeah.

[7]    This passage does not indicate an intention that Mr Pepere’s money should be shared among his children; if anything indicates it should be distributed among his grandchildren. Similarly, when the applicant asked Mr Pepere what he wanted to become of his land, his answers were vague. For example:

Mathew:Make sure you get Leanne? … sure she gets something out of the land too. But like I said before, if they want it it’s up to them.

Minnie:          all of them? All of your kids?

Mathew:Yeah, if they want it they want it if they don’t it’s up to them, or if Leanne take it, Leanne she can do what she’s gotta do. Yeah, ka pai.

Minnie:          So, what do you think about leaving it as a whole? Mathew:  What do you mean a whole?

Minnie:So you got land that’s that much *Minnie makes gesture of a size with her fingers as example*, right and you have five kids, if you split it up between us five we’re gonna get about this much and then it’s gonna be worth nothing.

Mathew:        As long as somebody gets something. That’s all. Minnie:  Okay, that’s okay.

Mathew:        Ka pai.

[8]    I cannot identify a clear expression of testamentary intent. While the transcript of a video recording can, in appropriate circumstances, be validated under s 14, the overarching requirement is always that the document expresses the deceased person’s intentions. Here — and this was no one’s fault — that simply did not occur. I have attempted to identify a passage in the transcripts which clearly indicates Mr Pepere wanted to divide his assets equally among his children, but I can find no unequivocal statement to that effect.

[9]    I have every sympathy with the position the applicant and her siblings find themselves in, though if the result of my decision is that Mr Pepere has died intestate, his children may well receive his estate in equal shares in any event. For present purposes, however, I am not satisfied the transcripts clearly disclose Mr Pepere’s testamentary intentions, and accordingly the application is declined.

Boldt J

Solicitors:
Dorrington Poole, Dannevirke for Applicant