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…

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 Walters

Details

AGLC: Walters [2025] NZHC 1176
Case: [2025] NZHC 1176
Decision Date: 15 May 2025

CaseChat Overview and Summary

The case involves an application by Ms Renee Walters, the niece of the deceased, Marara Walters, to have a document declared as a valid will under the Wills Act 2007. Marara died on 16 January 2020, leaving behind two brothers and two sisters. The document in question was prepared by her solicitors in 2019, but was not signed. Ms Walters argues that the document reflects Marara's last wishes, as it had been approved by Marara and she had instructed her solicitor to execute the document as her final will.

The central legal issue in this case is whether the unsigned document can be declared a valid will under s 14 of the Wills Act 2007. The court had to consider whether the document expressed Marara's testamentary intentions and whether there was sufficient evidence to validate it as her will. The court also needed to determine whether proceeding without notice to the interested parties was appropriate in this case.

The court held that it was in the interests of justice to allow the applicant to proceed with the application without notice to any interested party. The court found that all reasonable steps had been taken to ensure the application contained all relevant material and that all surviving siblings were aware of and had consented to the making of the order sought. The court concluded that the application to proceed without notice by way of originating application should be granted.

In considering the merits of the substantive application, the court found that there was cogent evidence that the 2019 will document reflected Marara's intentions. The court was satisfied that the document was in the form of a will, drafted by a solicitor who had met with Marara and taken instructions directly from her. The surviving siblings had also consented to the application. The court held that the grounds for the validating order sought were made out and granted the application. The court ordered 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. There was no order as to costs.

Orders