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…

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.

Continue reading Robertson v Robertson

Details

AGLC: Robertson v Robertson [2025] NZHC 487
Case: [2025] NZHC 487
Decision Date: 12 March 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Robertson v Robertson involved a dispute over the validity of a will and the bequests to certain beneficiaries. The deceased, Desmond Tyrell-Baxter, had executed a will on 24 April 2019, which he attempted to amend by handwriting on 17 March 2024, just days before his death. The primary issue before the court was whether the amended document could be validated as a will under Section 14 of the Wills Act 2007, despite not meeting the formal requirements outlined in Section 11. The court was also required to determine whether the bequests to beneficiaries who were also witnesses could be upheld under Section 13(2)(d) of the Act.

The court held that the amended document, despite its procedural flaws, clearly expressed the deceased's testamentary intentions. It was noted that the witnesses did not observe each other signing the document, nor were they present together when they signed, which were requirements under Section 11. However, the court found that Section 14 allowed the substance of the document to prevail over its form, given the clear evidence of the deceased's intentions. The court was satisfied that the deceased knew and approved the bequests to the witnesses, and that these were made voluntarily. Consequently, the court declared the document valid as the deceased's last will and ordered that the bequests to the witnesses were not void under Section 13(1) of the Act. The court also ordered that the costs of the application be paid from the deceased's estate.

Orders