Robertson v Robertson

[2025] NZHC 487

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-003244

[2025] NZHC 487

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER OF

Estate of DESMOND TYRRELL-BAXTER

late of Auckland

BETWEEN

BRIAN GEORGE ROBERTSON of

Auckland, Retired Applicant

AND

BRIAN GEORGE ROBERTSON of

Auckland, Retired First Respondent

Continued …

Hearing:	26 February 2025
Appearances:	D J Griffin and A E McDonald for Applicant
Judgment:	12 March 2025
Reissued:	Publication Version Coroners Act 2006 Compliant Issued 12 June 2025

JUDGMENT OF MUIR J

Originating Application

This judgment was delivered by me on 12 March 2025 at 4 pm.

Pursuant to Rule 11.5 of the High Court rules.

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

Solicitors/Counsel: Craig Griffin & Lord Ākarana Chambers

ROBERTSON v ROBERTSON [2025] NZHC 487 [12 March 2025]

VIVIENNE OLSEN of Auckland, Retired Second Respondent

ANTHONY     KIM     HARTNETT     of

Auckland, Retired Third Respondent

MICHAEL VESSEY of Auckland, Retired Fourth Respondent

KRISTEN LOWE of Auckland, Retired Fifth Respondent

MICHAEL TOLOLI of Auckland, Retired Sixth Respondent

MARY SMITH of Auckland, Retired Seventh Respondent

JOAN KIRKLAND of Auckland, Retired Eighth Respondent

PAULINE PRINCE of Auckland, Retired Ninth Respondent

CCS    DISABILITY    ACTION    a    duly

registered Charity with its registered office at Flat 3, 94 Dixon Street, Te Aro, Wellington 6011

Tenth Respondent

OTAGO FOUNDATION TRUST a duly

registered Charity with its registered office at Clock Tower Building, Leith Street, Dunedin 9054

Eleventh Respondent

UNIVERSITY OF AUCKLAND MEDICAL AND HEALTH SCIENCES FOUNDATION

formerly    The    University    of    Auckland School of Medicine Foundation and referred to in the Will as SCHOOL OF MEDICINE FOUNDATION OF THE UNIVERSITY

OF AUCKLAND with its registered office at 19a Princes Street, Auckland Central 1010 Auckland School of Medicine Twelfth Respondent

Introduction

[1]                 Desmond Tyrell-Baxter died between 17–18 March 2024. He had executed three previous wills, dated 3 May 2013, 18 June 2015 and 24 April 2019 (2019 will).

[2]                 Mr Tyrell-Baxter attempted to amend the 2019 will by handwriting and that document is dated 17 March 2024 (the document). The document was witnessed by Ms Vivienne Olsen and Mr Anthony Hartnett, two friends of the deceased, who had each been to visit Mr Tyrell-Baxter on the 16 and 17 March 2024, respectively. He asked each of them to sign the back page of the will and they did so, as requested. Mr Tyrell-Baxter died a short time later. He left a note confirming his testamentary intentions as written in the document.

[3]                 The document does not  meet the formal requirements for a valid will under   s 11 of the Wills Act 2007 (the Act) as Ms Olsen and Mr Hartnett were not present together when they witnessed the document; and neither of their depositions attest to them having seen Mr Tyrell-Baxter sign it himself. As well as this, Ms Olsen and  Mr Hartnett are beneficiaries under the terms of the document, meaning if the document is declared as valid the dispositions bequeathed to them are presumptively voided pursuant to s 13(1) of the Act unless an exception applies.

[4]                 Mr Brian Robertson, Mr Tyrell-Baxter’s close friend of some 60 years, is the applicant and seeks the following orders that:

(a)the document signed by Desmond Tyrell-Baxter originally dated 24 April 2019 and subsequently amended and dated 17 March 2024 be validated under s 14 of the Act;

(b)the bequests to Ms Olsen and Mr Hartnett be validated notwithstanding that they were witnesses to the document and were not present at the same time as each other witnessed the document; and

(c)the  costs  of   and   incidental   to   this   proceeding   be   met   by   Mr Tyrell-Baxter’s estate.

The estate and document

[5]                 The principal assets of Mr Tyrell-Baxter’s estate are his home in Green Bay worth approximately $1,025,000 and cash in various bank accounts in the sum of approximately $860,000.

[6]                 The document is a copy of the 2019 will to which Mr Tyrell-Baxter made edits with pen. Under the terms of the document:

(a)the bequest to Mr Robertson of $20,000 is increased to $50,000;

(b)the bequest to Ms Olsen of $20,000 is increased to $50,000;

(c)the bequest to Mr Hartnett of $15,000 is increased to $50,000;

(d)the bequest of $5000 to Mr Trevor Cullen is crossed out and the words, "DEAD NOW" are inserted beneath that and the bequest of $5000 to Mr Michael Vessey is increased to $10,000; and

(e)the words "NEW MODIFICATIONS TO SUM VALUES INCREASED FOR INFLATION 17 MARCH 2024" are written on the final page of the will.

[7]                 As well as amending the terms of his will, a note written shortly before death read:

I HAVE LEFT AN ADJUSTED WILL TO REFLECT INFLATION ON AMOUNTS LEFT TO FIRST 3 BENEFICIARIES FROM $20,000 TO

$50,000.

TREVOR CULLEN IS DEAD.

A VISITING 2 FRIENDS HAVE WITNESSED THESE CHANGES.

I HAVE ALSO INCREASED MICHAEL VESSEY FROM $5000 TO
$10,000.

[8]                 The only parties who would be affected by these amendments are the University of Otago Foundation and the School of Medicine Foundation of the

University of Auckland as they are to be gifted the residue of the estate which will be diminished by the increased bequests. Both these parties have consented to the present application.

[9]                 By way of minute dated 20 December 2024, Lang J granted leave for the originating application to be made without notice on the basis that:

(a)The first, second and third respondents (Mr Robertson, Ms Olsen and Mr Hartnett respectively) have provided affidavits in support of the application and as such are aware of its terms.

(b)The fourth, fifth, sixth, seventh, eighth, ninth and 10th respondents are not affected by the present application as their entitlements under the 2019 will are unchanged by the document.

(c)The 11th and 12th respondents have consented to the validation of the document.

Validity of the document

[10]Section 14 of the Act 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.

[11]              The document plainly meets all the criteria under s 14(1) to be considered for this Court’s validation.

[12]              The evidence strongly reinforces the conclusion that the document expresses Mr Tyrell-Baxter’s testamentary intentions. The amendments are recorded twice; in the document itself and recorded on a note, indicating both certainty and finality in his decision to make the amendments. The close proximity in time from Mr Tyrell-Baxter recording the amendments, until death (approximately two days later) is also indicative of the amendments being expressive of his final wishes.

[13]In Mason v Mason, Cooke J stated:1

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.

[14]              The defect in the document is that Ms Olsen and Mr Hartnett did not witness the document together, nor did they see Mr Tyrell-Baxter sign the document. Section

14 provides for the substance  of  the  document,  being  the  clear  expression  of  Mr Tyrell Baxter’s testamentary intentions, to prevail over the defect in its form in these circumstances.

[15]              For   these   reasons,   I   am   satisfied    that    the    document    expresses Mr Tyrell-Baxter’s testamentary intentions and should be declared as valid.

Should Ms Olsen and Mr Hartnett be allowed to receive their dispositions under the will?

[16]              Section 13(1)(a) of the Act provides that a disposition of property in a will is void if the disposition is to a witness. However, that presumption does not apply if this Court is satisfied that the will-maker knew and approved of the disposition; and made the disposition voluntarily.2

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

2      Wills Act 2007, s 13(2)(d).

[17]              I am satisfied that Mr Tyrell-Baxter knew and approved of the dispositions to Ms Olsen and Mr Hartnett and made the dispositions voluntarily. That conclusion is again supported by Tyrell-Baxter’s clear testamentary intentions in both the document and note.

[18]              The applicant also seeks that the  costs  of  this  application  be  paid  from Mr Tyrell-Baxter’s estate. I consider that appropriate.

Orders

[19]              I make an order declaring valid as the last will of Desmond Tyrell-Baxter the document dated 17 March 2024 being a will dated 24 April 2019 with additions and alterations as annexed at Exhibit “E” to the affidavit of Brian George Robertson.

[20]              I order under s 13(2)(d) of the Wills Act 2007 that s 13(1) of that Act does not apply to any disposition of property  in  Mr Tyrell-Baxter’s  will  to  Ms Olsen  or Mr Hartnett.

[21]              I order that the costs of this application are to be paid from the estate of     Mr Tyrell-Baxter.

Muir J