Ireland

[2025] NZHC 488

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000425

[2025] NZHC 488

IN THE MATTER OF

Section 14 of the Wills Act 2007

BETWEEN

GARTH IRELAND of 1.1 Wharf Offices Apartments, 1 Queens Wharf, Wellington Deceased

AND

an application by CHARLOTTE MARY IRELAND for an order that a document be declared a valid Will of the deceased GARTH IRELAND

Applicant

Hearing:	On the papers
Appearances:	C Tyler for Applicant
Judgment:	12 March 2025

JUDGMENT OF MUIR J

Originating Application

This judgment was delivered by me on 12 March 2025 at 3.30 pm, Pursuant to Rule 11.5 of the High Court rules.

Registrar/Deputy Registrar Date: ……………………………

Solicitors:

Rainey Collins, Wellington

IRELAND [2025] NZHC 488 [12 March 2025]

Introduction

[1]                  Garth Ireland died on or about 3 February 2024. He had executed two previous wills, dated 3 March 1982 and 2 March 2008 (2008 will).

[2]                  Mr Ireland had prepared a document described as “the Last WILL of me, Garth Ireland” which was signed by him on 24 August 2023 (the document). The document was witnessed by Mr Stephen Franks and Mr Mark Pothecary. However, the witnesses could not provide sufficient evidence to prove that they witnessed Mr Ireland sign the document together and, thus, it does not meet the requirements of a valid will prescribed by s 11 of the Wills Act 2007 (the Act).

[3]                  Ms Charlotte Ireland (Charlotte), Mr Ireland’s daughter, has filed the present application and seeks orders:

(a)granting leave for this application to be made by way of originating application without notice to any other person; and

(b)that the document dated 24 August 2023 be declared valid as the last will of Mr Ireland.

Background

[4]                  Mr Ireland has two children, Charlotte and Ms Juliet Ireland (Juliet). Mr Ireland is also survived by Ms Jane Ireland (Jane), to whom he was legally married. However, the pair separated in 2006 but no dissolution of marriage took place.

[5]                  The 2008 will left the entire residue of Mr Ireland’s estate to the JJC Family Trust (the Trust), the trustee of which is Hercus King Trustees Limited, and the beneficiaries being Charlotte, Juliet and Jane.

[6]                  Prior to his death, Mr Ireland, with the assistance of Jane, prepared the document. Charlotte is named as the executor. The document directs that the estate be distributed as follows:

My personal possessions to be divided between my two daughters, Charlotte Mary Ireland and Juliet Ana Ireland, as agreed between them.

The residue of my estate to be divided into two equal shares and paid to Charlotte Mary Ireland and Juliet Ana Ireland.

[7]                  Following Mr Ireland’s death, Charlotte applied to this Court for probate of the document. However, the Court declined probate on 11 April 2024 on this basis that it was not clear that the document was compliant with s 11 of the Act. Accordingly, the present application is made to declare the document a valid will.

Leave without notice

[8]                  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.

[9]                  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), the High 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 Act were aware and had consented to the making of the order.2

[10]              As noted above, the beneficiary of the 2008 will is the Trust. As such, the persons affected by the making of the presently sought orders are Charlotte, Juliet and Jane as the beneficiaries of the Trust. Helpfully, Charlotte, Juliet and Jane have each consented to an order being made declaring the document a valid will. Hercus King Trustees Ltd as the trustee of the Trust has also helpfully provided consent to the application.

[11]              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.

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

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

[12]              Charlotte deposed that Mr Ireland was not survived by a de facto partner entitled to succeed on intestacy and that he was not survived by any child other than herself and Juliet. I accept this evidence.

Validity of the document

[13]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.

[14]              The document plainly appears to satisfy the requirements prescribed in s 14(1) of the Act.

[15]              The defect in the document, rendering it invalid for the purposes of s 11, is that there is insufficient evidence to show  that  it  was  witnessed  by  Mr  Franks  and Mr Pothecary at the same time. Ms Tyler cites O’Neill v Slieker, whereby Mander J stated that “[b]ut for the failure to have the document signed in the presence of two witnesses, it would otherwise constitute a valid will.”3 I agree that this reasoning is sufficiently applicable in these circumstances. In Mason v Mason, Cooke J likewise stated:4

3      O’Neill v Slieker [2022] NZHC 358 at [14].

4      Mason v Mason [2022] NZHC 491, [2022] NZFLR 64 at [31].

It must be remembered that the main purpose of s 14 is to avoid circumstances where a testator's intentions are defeated by a failure to comply with the technicalities involved in creating valid wills. It is a provision that allows the substance to prevail over the form in those circumstances.

[16]              The only party who is provided for in the 2008 will, but is absent from the document, is Jane. However, not only has Jane provided consent to the application, but she also deposes to having assisted Mr Ireland in preparing the document. Appended to Jane’s affidavit is an email sent from her to Mr Ireland on 26 April 2023, where she wrote: “I promised some time ago to draft a will for you”’ and “it is a very simple document but, I think, quite clear as to your intentions.” So, while Mr Ireland did not draft it himself, it indicates that he and Jane had discussions regarding his intentions, being those contained in the document. As well as this, Mr Ireland was sufficiently satisfied that the document captured his intentions that he signed it and had it witnessed.

[17]              I consider the substance of the document to be an unimpeachable expression of Mr Ireland’s testamentary intentions. That substance is to prevail over the defects in form in these circumstances. For this reason, I am satisfied that the document should be declared a valid will.

Orders

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

[19]              I make an order declaring valid as the last will of Garth Ireland the document dated 24 August 2023 annexed as Exhibit “A” to the affidavit of Charlotte Mary Ireland.

[20]No order is sought in relation to costs.

Muir J