Martin

[2025] NZHC 2218

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2025-419-000197

[2025] NZHC 2218

UNDER

Wills Act 2007, s 14 and High Court Rules 2016, Part 19

IN THE MATTER OF

The estate of LYNNE MAREE MARTIN, deceased

GRAEME GILCHRIST MARTIN

Applicant

Hearing:	6 August 2025
Appearances:	P V Cornegé for Applicant
Judgment:	8 August 2025

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 8 August 2025 at 10.00 am

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date: ………………………………….

RE MARTIN [2025] NZHC 2218 [8 August 2025]

Introduction

[1]                 The applicant, Mr Graeme Martin, applies for orders under  s  14  of  the Wills Act 2007 validating a draft will prepared by the Public Trust on behalf of his late wife, Ms Lynne Martin.

[2]Ms Martin died in custody in November 2023.

[3]                 The proceedings have been served on the children of the Martins. Only one of the children, namely Mr Reid, had indicated any opposition to the application.1

[4]                 Mr Reid has not filed a notice of opposition within the time allowed by this Court, namely by 1 pm on Tuesday, 5 August 2025. Likewise, Mr Reid did not appear in the Chambers List on 6 August 2025.2

[5]In the circumstances, the application is being dealt with on the papers.

Factual background

[6]                 On 19 July 2012, Ms Martin executed a will in which she left the bulk of her estate to the applicant, Mr Martin.  However, she and Mr Martin were married on   19 December 2015. That marriage revoked the will.

[7]                 In late July 2023, and before she passed away later that year, Ms Martin was engaging with the Public Trust to have a will prepared on broadly the same terms as her previous will. However, she died before the draft will could be executed. She therefore died intestate.

Analysis and decision

[8]                 Under s 14 of the Wills Act, where a document appears to be a will, but does not comply with s 11 (which requires, among other matters, a will to be signed and witnessed by two people), the Court may make an order declaring the document valid

1      It appears Mr Reid’s opposition is to the contents of the will rather than constituting any challenge to the deceased’s testamentary intention.

2      See Re Martin (deceased) HC Hamilton CIV-2025-419-197, 22 July 2025 (Minute of Robinson J) at [4].

“if it is satisfied that the document expresses the deceased person’s testamentary intentions.”

[9]Under s 14(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.

[10]              The draft will here appears to be a will. However, it does not comply with s 11 because it is neither signed nor witnessed.

[11]              I accept that the gateway provisions in s 14(1) are made out. The critical issue to address is whether the draft will expresses the deceased’s testamentary intentions.3 To be a valid will, there “must be cogent evidence that the document reflects the deceased’s testamentary intentions.”4

[12]              In Re Campbell (deceased), MacKenzie J held that whether a document expresses a deceased person’s testamentary intentions:5

… is to be determined by a consideration of all of the circumstances, including those set out in s 14(3). The matters listed in subs (3) are not exhaustive. The Court is not, by the terms of the subsection, restricted to those considerations. Any evidence which may assist to determine whether the document expresses the deceased person’s testamentary intentions may be taken into account. The evidence which may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant consideration. Evidence of the signing and witnessing of the document may, as in this case, include evidence as to why the document was not signed or witnessed at all.

[13]              In Re Feron,6 the Court held that “a robust approach to the application of s 14 is called for.”

3      Wills Act 2007, s 14(2).

4      Re Hickford (deceased) (2009) 34 FRNZ 159 (HC) at [11].

5      Re Campbell (deceased) [2014] 3 NZLR 706 (HC) at [15].

6      Re Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].

[14]              There have been several cases where the subject document was a draft will prepared by the deceased’s solicitor.7 I accept Mr Cornegé’s submission that the draft will prepared by the Public Trust should be treated in a similar way.

[15]              In Re Hickford (deceased),8 MacKenzie J identified three possibilities where a draft will prepared by a solicitor had not been executed:

[9]       The fact that the deceased did not make an appointment to sign the will might be consistent with any one of three broad possibilities:

(a)that he had changed his mind about making a will;

(b)that he overlooked or forgot about signing the will; or

(c)that he did not think that he needed to do anything further.

[16]              In Wardill v Anderson,9 Palmer J cited with  approval  an  article  by  Professor Nicola Peart and Mr Greg Kelly in which they had analysed more than 40 cases involving s 14. As Palmer J held, all the applications analysed by Peart and Kelly were successful, although only two were opposed. Fourteen involved documents which were neither signed nor witnessed, and six involved a professionally drafted will the deceased did not see before passing away.

[17]              I accept that the evidence here makes clear that the draft will expresses the deceased’s testamentary intentions. She plainly wanted to leave the bulk of her assets to her husband, Mr Martin. This is what she did in her 2012 will. A new will was only required because of the marriage.

[18]              I accept that there is no evidence that the deceased had changed her mind prior to  her  passing.    She  was  emailing  the  Public  Trust  about  the  will  as  late  as  7 November 2023. She passed away later that month. It appears that the real reason she could not sign the draft will was because she was involved at that time in a homicide trial.

7      See, for example, Re Baird [2020] NZHC 279 at [12].

8      Re Hickford (deceased), above n 3.

9      Wardill v Anderson [2016] NZHC 3114 at [13]–[14], citing Nicola Peart and Greg Kelly “The Scope of the Validation Power in the Wills Act 2007” [2013] NZ Law Review 73.

[19]              For all these reasons, I find that the application should be granted. There is cogent evidence that the document reflects the deceased’s testamentary intention.

Result

[20]              I grant the application for an order under s 14 of the Wills Act 2007 validating the draft will prepared by the Public Trust on behalf of Ms Lynne Martin.

[21]              I further order that Mr Martin’s  costs  and  expenses  are  to  be  met from Ms Lynne Martin’s estate.10 Whether the costs order can ultimately be enforced will depend on what happens in then related forfeiture proceedings brought by the Commissioner of Police.11

Andrew J

10     I record the submission of Mr Cornegé that there is presently a restraining order over Ms Martin’s property (her estate).

11     Commissioner of Police v Martin HC Hamilton CIV-2020-419-321.