Trustees Executors Limited v Ahern

[2025] NZHC 3231

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-78

[2025] NZHC 3231

IN THE MATTER OF

the Estate of Trevor James Williams

BETWEEN

TRUSTEES EXECUTORS LIMITED

Applicant

AND

ROSEMARY DUNBAR AHERN

First Respondent

AND

DEVON JAMES WILLIAMS

Second Respondent

Hearing:

On the papers

Appearances:

J M Stringer for Applicant

J A Heerdegen and H Lewis for First Respondent N Scott for Second Respondent

Judgment:

29 October 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 29 October 2025 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE WILLIAMS [2025] NZHC 3231 [29 October 2025]

The application

[1]                  This is an application to validate an unsigned will (the Will document) prepared on the instructions of Trevor James Williams (Mr Williams or the deceased) who died on 21 April 2023 before the will could be formally executed.

Background

[2]                  The relevant background to this application is as follows. Mr Williams’ first marriage was to Virginia Edith Williams, who died approximately 23 years ago. They adopted a son, Devon James Williams, who is their only child (Mr D Williams).

[3]                  Mr Williams remarried in October 2003. His second wife is Rosemary Dunbar Ahern, the named first respondent. There are no children of that relationship. However, Mrs Ahern has three children from her previous marriage.

[4]                  Mr Williams made a will dated 6 November 2015 (the 2015 will). Trustees Executors Ltd, the applicant, together with Ms Ahern, are the executors and trustees of Mr Williams 2015 will.

[5]The 2015 will distributed Mr Williams’ estate in the following way:

(a)all personal chattels were gifted to Mrs Ahern;

(b)the interest in Mr Williams’ principal home was given to Mrs Ahern (subject to various conditions);

(c)the balance of the estate was held in trust as follows:

(i)to allow Mrs Ahern to have the free use of the residuary estate and its income for her lifetime;

(ii)after Mrs Ahern’s death, to divide the residuary estate into three equal shares and to transfer those shares as follows:

1.       one share to Mr D Williams;

2.       one share to the deceased’s nieces and nephews;

3.       one share to the nephews and nieces of Mr Williams’ deceased wife.

[6]                  In 2023 Mr Williams took advice on asset planning arrangements which included providing instructions for the preparation of a new will to update and change the distribution of his estate.

[7]                  The discussions and instructions on the draft will were undertaken at the home of Mr Williams and Mrs Ahern, with both of them present. The solicitor acting was Iain Grant Fyfe, of Fyfe Karamaena Law.

[8]                  Mr Fyfe has filed an affidavit in support of the application. He explains that the deceased’s instructions were to make arrangements for the transfer of an interest in the family home at 8 Rob Roy Lane, Wanaka (the Rob Roy property), to Mrs Ahern. One of the reasons for the transfer was that it would enable Mrs Ahern to sell her property at 24  Heuchan  Lane,  Wanaka  and  gift  the  proceeds  of  sale  to  her  two daughters and one son. There were also discussions about provision for the deceased’s son Mr D Williams.

[9]                  Mr Fyfe then prepared the Will documents. The key testamentary terms of the Will document can be summarised as follows:

(a)Trustees Executors Ltd was appointed as the executor and trustee;

(b)Mrs Ahern was to have right to occupy the deceased’s half share of the Rob Roy property for her lifetime, including the right to purchase a replacement property;

(c)the residue was to go to Mr Williams’ son, Mr D Williams.

[10]The deceased died before his will could be formally executed.

The application

[11]              The application is made because the Will document does not meet the formal requirements for a valid will under s 11 of the Wills Act 2007. However, it is submitted that it:

(a)appears to be a will; and

(b)accurately records Mr Williams’ testamentary intentions.

[12]              Thus, despite the Will document not being formally executed, the testamentary intentions recorded in the Will document should be treated as the deceased’s operative will.

[13]              The application is supported by both Mr D Williams and Mrs Ahern, who are the interested parties in his estate.

[14]              The application has been served on all the beneficiaries of the 2015 will, being the surviving nieces and nephews of Mr Williams and his first wife. While initially, Mrs  Ahern  filed  a  notice  of  opposition,  that  was  withdrawn  by  consent  on     1 October 2025 with Mrs Ahern and Mr D Williams, reaching agreement on a deed of family arrangement that enabled both of them to support this application.

[15]              No other party who has been served has taken steps in the proceedings. The last due date for the filing of a notice of opposition was 27 October 2023 (noting some considerable time has passed between the application being filed and then served).

The law

[16]              The law applying to the validation of documents under s 14 of the Act is well understood. That section provides the High Court may declare a will valid if the document:

(a)appears to be a will;

(b)does not comply with s 11; and

(c)came into existence in or out of New Zealand.

Those perquisites are readily met in this case, noting the document was prepared as a will and was intended to be executed by the deceased, but for his untimely death.

[17]              In deciding whether the document should be validated as a will, s 14(3) provides that the Court may consider:

(a)the document; and

(b)evidence of the signing and witnessing of the document; and

(c)evidence on the deceased’s persons testamentary intentions; and

(d)evidence of statements made by the deceased person.

[18]              Having regard to the affidavit evidence filed on the circumstances giving rise to the preparation of the Will document, I am satisfied the Will document reflects the deceased’s testamentary intentions. The deceased clearly wanted to revoke the 2015 will and ensure that his surviving wife and son were the beneficiaries. I also note there is no evidence that the deceased changed his mind in the period between providing instructions for the preparation of the will document and his death.

[19]              For these reasons, I make an order, as sought, under s 14 of the Wills Act 2007, validating the unsigned Will document created in 2023 as the deceased’s valid will.

Costs

[20]              The costs of and incidental to this proceeding are to be met by the estate of the deceased.

Solicitors:

Fyfe Karamaena Law, Wanaka Fraundorfer, Tauranga

Bush Forbes, Tauranga

Copy to:

Jannah Stringer, Barrister, Christchurch