Spencer v Hill

[2025] NZHC 1769

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2025-419-0108

[2025] NZHC 1769

UNDER

Section 14 of the Wills Act 2007

IN THE MATTER

of an application for orders declaring a document to be a valid codicil

BETWEEN

OENONE LOUISE SPENCER and JACQUELINE LEE SIBBALD

Applicants

AND

SCOTT HILL

Respondent

Hearing:	On the papers
Counsel:	A G Barrett and A Wang for applicants
Date of judgment:	1 July 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 1 July 2025 at 4.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Glaister Keegan, Auckland

SPENCER v HILL [2025] NZHC 1769 [1 July 2025]

[1]                 John Tedcastle died on 4 January 2025. I offer the Court’s condolence to his survivors.

[2]                 I have  Mr  Tedcastle’s  estate’s  executors’  originating  application  dated  31 March 2025, seeking orders under s 14 of the Wills Act 2007, to declare an evidenced document  a valid  (second)  codicil  to  Mr  Tedcastle’s  last  will  dated  8 December 2022 (revoked in part by a first codicil dated 5 August 2024).

[3]                 With one exception, Mr Tedcastle’s  will predominantly gifted personal chattels, shares and cash to his partner, who also was his estate’s residual beneficiary. The exception is the will also gifted particular equipment, clothing and a sum of money to the respondent. The first codicil reduced that sum.

[4]                 After a lunch between Mr Tedcastle and the respondent on 18 December 2024, Mr Tedcastle instructed his solicitors on 19 December 2024 to prepare a second codicil with effect to remove any gift to the respondent. Such was prepared and provided to Mr Tedcastle on 20 December 2024 for signature and witnessing (the evidenced document).

[5]                 The evidenced document was not signed before Mr Tedcastle’s death. Knowing of Mr Tedcastle’s intention for the further revocation, neither his partner nor his solicitors are aware of any reason to think his intention had changed by the time of his death. The respondent acknowledges the effect of the evidenced document if validated and, moreover, consents to such orders.

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

(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 here, because it:

(1)is a document in existence;

(2)appears to be a second codicil to Mr Tedcastle’s will, in that it is to be made by him, for disposition of property to which he was entitled when he died;1 and

(3)does not comply with s 11 (which relevantly requires the document be signed and witnessed by at least two witnesses).

[8]                 I may declare the evidenced document a valid second codicil to Mr Tedcastle’s will if I am satisfied the document expresses his testamentary intentions.2 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 Tedcastle’s testamentary intentions?

[9]                 Given the circumstances of the evidenced document’s making as explained by employees of Mr Tedcastle’s solicitors’ firm, I am satisfied the document (taken in

1      Wills Act 2007, s 8(1) and (3).

2      Re Dalley [2023] NZHC 411 at [9], referring to Re Campbell [2020] NZHC 2395; Re Estate of John William Brown [2022] NZHC 858 at [2]; and Re Wheeler [2021] NZHC 3437 at [7].

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].

conjunction with his will and first codicil) expresses his testamentary intentions,6 for disposition of his property.7

Result

[10]              I declare the original of the document marked “B” annexed the affidavit o Angela Jayne Mills sworn 8 April 2025 is the valid second codicil to the will and first codicil of John Graham Thomas Tedcastle, respectively dated 8 December 2022 and 5 August 2024. I direct the costs of this application be paid out of the estate.

—Jagose J

6      Wills Act, s 14(2).

7      Section 8(1)(b)(i).