Kahi

[2023] NZHC 2593

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-470

[2023] NZHC 2593

IN THE MATTER

of Section 14 of the Wills Act 2007

AND

IN THE MATTER

of an application by JOYCE-ANN NGAHERE ANDORA KAHI for an order that a document be declared a valid will of

the deceased TIMOTHY KAHI also known as TIMA TIMOTHY KAHI

Hearing:	On the papers
Counsel:	F T Tuapola for applicant
Date of judgment:	18 September 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 18 September 2023 at 1.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Solicitors:

Daniel Overton & Goulding, Auckland

RE KAHI [2023] NZHC 2593 [18 September 2023]

[1]    By without notice originating application dated 1 March 2023, Joyce-Anne Ngahere Andora Kahi seeks my declaration, under s 14 of the Wills Act 2007, a document prepared by her father’s solicitor at his instruction is his valid will.

Background

[2]    Mr Kahi died at Middlemore Hospital in Auckland’s Otahuhu on 24 September 2022. I offer the Court’s condolence to his survivors.

[3]    On 9 August 2022 Mr Kahi had instructed his former solicitor to prepare a will, in respect of which the solicitor sought further information as to Mr Kahi’s occupation and burial or cremation preference. Although it is unclear if or when that information was provided, on 23 August 2023, the solicitor sent Mr Kahi a copy of a draft will identifying him as a market gardener and directing his burial. The draft will would give all money in his Bank of New Zealand accounts to his daughter and divide any residue in his estate equally between her and his son.

[4]    By email of 3 October 2022, Ms Kahi’s nephew, Tearepa Kahi, advised the solicitor Mr Kahi had died. The email explained the draft email had been discussed between Mr Kahi and his son and daughter with “[t]he aim to sign it and send it back to you”.

Without notice application

[5]    Because Mr Kahi’s daughter and son consent to the application, and requiring her to proceed on notice would cause her undue delay, I determine the application can properly be dealt with without notice.1

Validation of wills

[6]Section 14 of the Wills Act provides:

14     High Court may declare will valid

(1)This section applies to a document that—

(a)    appears to be a will; and

1      High Court Rules 2016, r 7.46(3)(b).

(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.

[7]Section 14 applies to the evidenced document, because it:

(1)is a document;

(2)appears to be a will, in that it is to be made by Mr Kahi and seeks to dispose of property to which he was entitled when he died;2 and

(3)does not comply with s 11 (which relevantly requires the document to be signed and witnessed).

[8]    I may declare the document Mr Kahi’s valid will if I am satisfied the document expresses his testamentary intentions. The discretion conferred by s 14 is residual only: good reason would be required to refuse an order if so satisfied.3 I am essentially to “evaluate the relevant circumstances and reach a conclusion”.4 I am to take “a robust approach”.5

Does the document express Mr Kahi’s testamentary intentions?

[9]Mr Kahi’s former solicitor’s evidence was Mr Kahi:

… was clear in his instructions to me he wanted to leave the contents of his bank account to his daughter … and the remainder of his estate was to be divided equally between [the daughter] and his son ….

2      Wills Act 2007, s 8(1).

3      Balchin v Hall [2016] NZHC 837 at [11].

4      Re Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].

5      Watt v Owston-Doyle [2015] NZHC 1292 at [12], citing Re Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].

[10]   I thus am satisfied the document expresses Mr Kahi’s testamentary intentions,6 for disposition of his property.7

Result

[11]   I declare the original of the document marked “A” annexed to the affidavit of Fionn Thomas Tuapola affirmed 1 March 2023 is the valid will of Timothy Kahi.

—Jagose J

6      Wills Act, s 14(2).

7      Section 8(1)(b)(i).