Riwaka-Love

[2023] NZHC 1088

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-618268

[2023] NZHC 1088

IN THE ESTATE

of MARGARET ANNE RIWAKA-LOVE

(also known as MARGARET ANNE RIWAKA and MARGARET ANNE WILLS)

Hearing:	8 May 2023
Counsel:	E J Collins for Applicant Zara Taaikiwaiora Wills
Judgment:	9 May 2023

JUDGMENT OF RADICH J

[1]                 The applicant, Zara Taaikiwaiora Wills (Ms Wills), has applied under ss 5 and 19 of the Administration Act 1969 and r 27.4 of the High Court Rules for an order that probate of a photocopy of the will of her mother, Margaret Anne Riwaka-Love (the deceased), be granted to Ms Wills alone.

[2]                 As Ms Wills explains in her affidavit of 21 September 2022 in support of the grant,1 she and the deceased’s brother, Nicholas Martin Riwaka (Mr Riwaka), were named as the executors of the deceased in her will. Mr Riwaka lives in Papua New Guinea.

[3]                 On 17 June 2021, Ms Wills attended the solicitors acting on the deceased’s estate and signed the relevant documents. The solicitors then sent the documents by courier to Mr Riwaka in Papua New Guinea for his signature. Email exchanges show

1      And which complies with the requirements in r 27.4.

Re Estate of Margaret Anne Riwaka-Love [2023] NZHC 1088 [9 May 2023]

that Mr Riwaka received the documents on 11 August 2021, he was comfortable with their terms and was intending to return them by courier.

[4]                 On 16 November 2021, Mr Riwaka confirmed to Ms Wills in another email that he would be signing and returning the documents. He did not do so.

[5]                 On 1 June 2022, Ms Wills advised the solicitors for the estate that she had been able to make contact with Mr Riwaka again and that he was going to send tracking details for the documents that were said by him to have been returned. The tracking details were not provided.

[6]                 As a result, on 29 September 2022, Ms Wills applied to the Court – without notice under r 27.4 – for probate of a lost will and for an order nisi calling upon     Mr Riwaka to show cause as to why probate of the lost will should not be granted to her alone.

[7]                 The Registrar, on 5 December 2022,  granted  the order nisi  calling  upon  Mr Riwaka to show cause why probate should not be granted to Ms Wills alone and why the order nisi should not be made absolute at a sitting of the Court on 7 February 2023. When service of the order nisi could not be effected, the date for the sitting was enlarged to 17 April 2023. By this time, a broad range of steps had been taken in an endeavour to serve Mr Riwaka with the order nisi and with the underlying application documents:

(a)The solicitors for the estate emailed the Papua New Guinea Law Society to find a recommendation for someone who might be able to effect service.

(b)The solicitors for the estate communicated with the Papua New Guinea High Commission in Wellington to see if guidance could be provided about serving the order nisi.

(c)Upon receiving, from the High Commission, a recommendation about a process server in Papua New Guinea, the documents were couriered,

at the process server’s request, to an Australian address from which the documents would be couriered to the process server’s agent in Papua New Guinea.

(d)By 10 February 2023, the courier company had concluded the package containing the documents had gone missing and so they were re- couriered.

(e)The process server who had endeavoured to serve Mr Riwaka at his place of work and at his home in Papua New Guinea reported that those endeavours were not successful and that Mr Riwaka had left Papua New Guinea for places unknown. The process server has filed an affidavit confirming the steps taken and the failure to effect service.

[8]                 When the case was called in the Judge’s Chambers List on 17 April 2023, Edwards J made orders that:

(a)Mr Riwaka be served by emailing a copy of the documents to his known email address and by posting or couriering them to his residential address;

(b)An affidavit of service be filed following the taking of those steps.

(c)An affidavit be filed confirming the steps that had been taken to that point to effect service.

[9]                 Each of the steps directed by Edwards J has now been taken, with affidavits from a solicitor for the estate and from Ms Wills confirming service by email and by courier.

[10]              Subsequent exchanges with Mr Riwaka show that the order nisi and the other documents to which this application relates have been received by Mr Riwaka, that he was intending to call Ms Wills in response and that, moreover, he was not intending to return to New Zealand in the near future. However, nothing further has been heard or received from Mr Riwaka.

[11]              The long delays in obtaining probate of the deceased’s estate are causing some hardship for Ms Wills because she and her partner live in a property in which they each own a defined share with the deceased’s estate. A subdivision of the property is unable to proceed without probate.

[12]              I am satisfied, in the first instance, that probate should be granted to Ms Wills alone under s 19 of the Act. Ms Wills and the solicitors for the deceased’s estate have been trying, for nearly two years, to have Mr Riwaka sign and return the documents – or to take any steps of any kind in relation to the estate. The documents have been brought to his attention and he has had every opportunity to be involved.

[13]Accordingly, under s 19(2) of the Act I go on to make the orders sought.

[14]              Under s 6(2)(b) of the Act I am satisfied that probate should be granted to  Ms Wills alone. I am satisfied that the original will has been lost subsequent to the death of the deceased, that the will has not been revoked and that the photocopy provided to the Court in evidence by Ms Wills is the original will of the deceased.

[15]              To the extent that, as a result of the original will having been lost, it becomes necessary to declare the photocopy of the will – attached as Exhibit A to the affidavit of Ms Wills of 21 September 2022 – to be a valid will, I do so under s 14 of the  Wills Act 2007 having been satisfied from the evidence that the document expresses the deceased’s testamentary intentions.

[16]Accordingly, I make the following order:

(a)Probate of the will of the deceased (being Exhibit A to the affidavit of Zara Taaikiwaiora Wills of 21 September 2022) is granted to Zara Taaikiwaiora Wills alone.

Radich J

Solicitors:

Collins & May Law, Lower Hutt for Applicant