Warn v Welch - [2025] NZHC 2620

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2024-463-115

[2025] NZHC 2620

IN THE MATTER of s 14 of the Wills Act 2007

AND

IN THE MATTER

of an application by KELLY MARK WARN and MURRAY BRETT JANSEN for orders validating documents as the will of ANDREW NORMAN WELCH late of

Taupo

BETWEEN

KELLY MARK WARN and MURRAY BRETT JANSEN

Applicants

AND

CHARLOTTE ELLAYNE WELCH

First Respondent

MARK ALEXANDER STEWART AND JOLENE MARIE STEWART

Second Respondents

Hearing:
15 May 2025

(Heard at Hamilton)

Appearances:

R J Brown and N E Hooper for the Applicants

S I Robinson for the First Respondent (via VMR) A Douglass for the Second Respondents

Judgment:

9 September 2025

JUDGMENT OF GAULT J

This judgment was delivered by me on 9 September 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

WARN and JANSEN v WELCH [2025] NZHC 2620 [9 September 2025]

[1] The executors of a draft will of the late Andrew Norman Welch (Mr Welch) seek orders declaring the draft will a valid will and declaring an email a valid codicil, pursuant to s 14 of the Wills Act 2007 (Act). In the alternative, they seek an order declaring the draft will – excluding a clause providing for specific gifts – a valid will.

[2] The notice of opposition filed by the first respondent, Charlotte Welch, was withdrawn shortly before the hearing. Thus, the application is not opposed except, in relation to the alternative order, by the second respondents, Mark and Jolene Stewart, since that alternative would exclude them as beneficiaries.

Background

[3] The background is largely not in dispute (and for the most part was conveniently summarised in the applicants’ submissions).

[4] The applicants are Mr Warn, who is Mr Welch’s nephew, and Mr Jansen, a good friend of Mr Welch.

[5] Mr Welch married Sharon Mary Welch (Mrs Welch) in 1971. They had two daughters, Charlotte and Emma.1 Emma died on 12 January 2016. Mrs Welch died on 20 January 2022. Charlotte is 45 years old and has a daughter, [REDACTED], who is six years old. [REDACTED] is Mr Welch’s only grandchild.

2016 will

[6] Mr Welch’s last valid will was dated 5 May 2016 (the 2016 will). Under the 2016 will:

(a)Mrs Welch was appointed as executor and trustee, but if she was unable or unwilling to act, or died before proving the will, then Charlotte and Mr Warn were to be appointed as executors and trustees.

1 I will use first names for the adult children and grandchild not for informality but for ease of differentiation.

(b)Mr Welch’s residuary estate was to be transferred to Mrs Welch, if living at his death. If Mrs Welch was not living at Mr Welch’s death, then:

(i)the sum of $50,000 was to be gifted to each of his nieces and nephews if living at his death; and

(ii)Mr Welch’s residuary estate was to be transferred…

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 Warn v Welch

Details

AGLC: Warn v Welch [2025] NZHC 2620
Case: [2025] NZHC 2620
Decision Date: 9 September 2025

CaseChat Overview and Summary

In Warn v Welch, the executors of the late Andrew Norman Welch's draft will sought orders validating the draft will and a codicil, as well as an alternative order validating the draft will excluding specific gifts. The application was made pursuant to s 14 of the Wills Act 2007. The application was not opposed except by the second respondents, Mark and Jolene Stewart, who opposed the alternative order. The applicants argued that the draft will and codicil expressed the deceased's testamentary intentions. The court found that the draft will and codicil did express the deceased's testamentary intentions and made orders as sought. The second respondents' costs were to be met from the deceased's estate.

The court considered the meaning of a will under s 8 of the Wills Act 2007, which includes a codicil to a will. The court also considered the test for validating a will under s 14(1) and (2) of the Act, which requires the court to be satisfied on the balance of probabilities that the document expresses the deceased's testamentary intentions. The court found that the draft will and codicil did express the deceased's testamentary intentions. The court interpreted the codicil to change the specific gifts in the draft will. The court rejected the alternative order as it would not express the deceased's testamentary intentions. The court made costs orders in favour of the applicants and first respondent.

Orders