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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ireland [2025] NZHC 488
Case: [2025] NZHC 488
Decision Date: 12 March 2025

CaseChat Overview and Summary

The case involves an application by Charlotte Mary Ireland seeking a declaration that a document dated 24 August 2023 is the valid will of her father, Garth Ireland, who died on or about 3 February 2024. Garth had executed two previous wills, dated 3 March 1982 and 2 March 2008. The contested document was signed by Garth and witnessed by Mr Stephen Franks and Mr Mark Pothecary. However, the witnesses could not provide sufficient evidence to prove that they witnessed Garth sign the document together and, thus, it does not meet the requirements of a valid will under section 11 of the Wills Act 2007.

The legal issues before the court were whether the application could be made without notice to any other person and whether the document dated 24 August 2023 could be declared a valid will of Garth Ireland. The court considered whether the requirements for leave to make an originating application without notice under rule 7.23(2)(a) of the High Court Rules 2016 were met and whether the document expressed Garth's testamentary intentions under section 14 of the Wills Act 2007. The court found that all relevant parties had consented to the application, and the document expressed Garth's testamentary intentions despite the defect in witnessing. The court was satisfied that the substance of the document, which was an unimpeachable expression of Garth's intentions, should prevail over the defects in form.

The court granted leave for the application to be made by way of an originating application without notice and declared the document dated 24 August 2023 as the valid will of Garth Ireland. The court considered that the primary purpose of section 14 of the Act was to avoid circumstances where a testator's intentions were defeated by a failure to comply with the technicalities of creating a valid will. The court found that the substance of the document was an unimpeachable expression of Garth's testamentary intentions, and therefore, the document should be declared a valid will. No order was sought in relation to costs.

Orders