Walters

[2025] NZHC 1176

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-001039

[2025] NZHC 1176

UNDER

The Wills Act 2007

IN THE MATTER OF

The estate of MARARA WALTERS, deceased AND an application for an order declaring a document to be valid will

BETWEEN

RENEE ANETTA WALTERS

Applicant

Hearing:	On the papers
Counsel:	G Bogiatto
Judgment:	15 May 2025

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 15 May 2025 at 4.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date: …………………………………….

WALTERS [2025] NZHC 1176 [15 May 2025]

Introduction

[1]    The applicant, Ms Renee Walters, has made a without notice application under s 14 of the Wills Act 2007, for an order declaring a document to be a  valid will.    Ms Walters is the niece of the deceased, Marara Walters,1 who died in Auckland on 16 January 2020.

[2]    The applicant seeks an order validating an unsigned document of the deceased, prepared by her solicitors in 2019. She says that this document reflects the deceased’s last wishes, having been approved by the deceased who had given instructions to her solicitor to have the document executed as her final will.

[3]    At the time of her death, the deceased was survived by two brothers and two sisters. One of these siblings, Keere Makinihi Rapihana, died after the death of the deceased. The surviving siblings, namely Peggy Angland, Noel Thomas Walters, Matiu Thomas Walters, have all consented to this application.

Application to proceed by way of originating application

[4]    I find that it is in the interests of justice that the applicant proceed with an originating application and without notice to any interested party.

[5]    Originating  applications  may be made  without  notice where  a ground  in   r 7.23(2)(a) of the High Court Rules 2016 applies and when all reasonable enquiries have been made and steps have been taken to ensure the application contains all relevant material.2

[6]    In “without notice” applications, all persons affected by the will must have a proper opportunity to be represented in the proceedings, including beneficiaries under the previous will.3 In Re the Estate of Campbell,4 this Court found that the grounds in r 7.23(2)(a) for granting leave were established where all persons who would be

1      For ease of reference, following first mention, I shall use the first names of the relevant parties.

2      Re Kake [2024] NZHC 3570 at [8].

3      Re Hickford [2009] 34 FRNZ 159 (HC).

4      Re the Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [3].

affected by the making of a without notice order under s 14 of the Act were aware of and had consented to the making of the order.

[7]    I am satisfied that the solicitors for the applicant here have made all reasonable enquiries and taken steps to ensure that the application contains all relevant material. I further note that all of the surviving siblings are aware of the application and have consented to the making of the order sought.

[8]    I  note,  too,  that  the   solicitor   for   the   deceased   corresponded   with   Mr John Walters, solicitor, in February 2023 (to enquire whether he held a will for the deceased) and specifically advised him that the applicant intended to apply under s 14 of the Wills Act to have an unsigned will from late 2019 validated.

[9]    I conclude that the application to proceed without notice by way of originating application should therefore be granted. I also order that service on Keere is dispensed with. I accept the submission of Mr Bogiatto that there is no personal representative in existence in respect of Keere’s personal affairs and that, in the event that I grant the substantive application, the proposed administrator of the deceased’s estate, Mr Willis, solicitor, will deal with the specific gift made by the deceased to Keere of $100,000.

[10]I turn now to consider the merits of the substantive application.

Factual background

[11]   The affidavit of Mr Willis states that in June 2017 he met with the deceased and obtained instructions from her to prepare a will. The will that Mr Willis prepared on the basis of those instructions provides that Mr Willis and the deceased’s brother-in-law, Robin Angland, were to be appointed as trustees and executors. The deceased directed that her home at 51 Kildare Avenue, Glendowie, Auckland (the property) be sold, and that, from the proceeds of the sale, a property be purchased to enable her sister, Keere to occupy it for her lifetime. Following Keere’s death, the property would be sold, with the proceeds falling into the residuary estate, to be paid to the applicant, being the deceased’s niece.

[12]   This will document was not signed, although a copy of it was forwarded to the deceased at her request in May 2019.

[13]   In December 2019, the deceased again  gave  Mr  Willis  will  instructions. Mr Willis prepared a will document and, on 23 December 2019, he met with the deceased for the purpose of signing it. Following discussion, the deceased required one alteration to the will document, but otherwise approved it.

[14]   Mr Willis then advised the deceased that he would return to see her in the new year with the finalised will to be signed.

[15]Before that could occur, and on 16 January 2020, the deceased passed away.

[16]   At the time of her death, the deceased was survived by four siblings, being Peggy, Noel and Matiu, and her sister, Keere.

[17]The assets of the deceased currently comprise:

(a)the property at 51 Kildare Avenue, Glendowie, Auckland;

(b)the contents of the property;

(c)a bank account at the Co-operative Bank and possibly at the ANZ; and

(d)various interests in Māori land in Northland.

[18]   There are a small number of liabilities, including a debt to Robin (Peggy’s husband) of $30,275.84 and Auckland Council rates arrears of approximately $28,000.

The will document of 2019

[19]   The unsigned document of the deceased (the subject of the application) is annexed to the affidavit of Mr Willis. Briefly, it provides for:

(a)Mr Willis to be the executor and trustee;

(b)for the body of the deceased to be cremated;

(c)for the property to be sold and for the proceeds to be applied:

(i)to give $100,000 to Keere, her sister;

(ii)to pay all just debts, funeral and testamentary expenses and liabilities of the estate; and

(d)to pay the residuary estate to the applicant (Renee), provided that she survived the deceased.

Relevant legal principles of the Wills Act 2007

[20]   A valid will is defined by s 7 of the Wills Act as one that complies with s 11 or is declared valid under s 14 of the Act.

[21]The essential requirements of a valid will are set out in s 11:

(a)a will must be in writing;

(b)a will must be signed and witnessed as described in subsection (3)  and (4);

(c)the will-maker must sign the document or direct another person to sign on their behalf; and

(d)there must be at least two witnesses.

[22]   Section 14(2) prescribes that the High Court may make an order declaring a document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions. In applying the discretion under s 14(3), there are four considerations prescribed, namely:5

5      See Re Bonner [2024] NZHC 3390 at [11].

(a)the document;

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

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

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

Analysis and decision

[23]In Re the Estate of Campbell,6 McKenzie J held:

The overwhelming preponderance of successful applications indicates that this Court has considered s 14 to be a remedial provision, and that where there is evidence of the deceased person’s testamentary intentions, it is better that those intentions be given effect, in preference to the disposition of property which would take effect under any previous will, or on an intestacy.

[24]   Having regard to the four considerations set out in s 14(3) of the Wills Act, I am satisfied that the grounds for the validating order sought are made out. Such an order would meet the remedial purpose of s 14, as referred to by McKenzie J in Re the Estate of Campbell.7

[25]   There is cogent evidence that the 2019 will document reflects the deceased’s intentions. It is clear from the evidence of Mr Willis that all that remained was for the deceased to formally execute the document and the deceased had clearly given her approval to it.

[26]   The document is, of course, in the form of a will and has been drafted by a solicitor with obviously considerable experience and someone who personally met with the deceased and took instructions directly from her.

[27]   I further note from the evidence of Mr Willis that he has acted for the deceased for some considerable time (since November 2014), that he has met with her on many

6      Re the Estate of Campbell, above n 4, at [18].

7      Re the Estate of Campbell, above n 4, at [18].

occasions, and that when he last met with her on 23 December 2019, she was “very alert mentally”. On that occasion, he read out to her the contents of the will.

[28]   At that same meeting on 23 December 2019, Mr Willis satisfied himself that the deceased had the legal capacity to sign the enduring powers of attorney, which she executed on that day.

[29]   As noted above, the surviving siblings of the deceased, namely Peggy, Noel and Matiu, have all consented to the application.

[30]For all these reasons, I am satisfied that the application should be granted.

Result

[31]   I order that the applicant may proceed by way of originating application and without notice to any interested party.

[32]   I order under s 14 of the Wills Act 2007 that the document in the form as it appears at exhibit “D” to the affidavit of Mr Willis, solicitor, dated 15 April 2025, is a valid will of Marara Walters.

[33]There is no order as to costs.

Andrew J