Warn v Welch
[2025] NZHC 2620
•9 September 2025
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[2] The notice of opposition filed by the first respondent, Charlotte Welch, was withdrawn shortly before the hearing.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 to Charlotte.
[7] Given that Mrs Welch passed away in January 2022, Charlotte is the beneficiary of Mr Welch’s residuary estate under the 2016 will.
Draft will
[8] Following Mrs Welch’s death in January 2022, it appears that Mr Welch turned his mind to his own estate planning. It was around this time that Mr Welch first discussed updating his will with Mr Warn, and in particular, advised him that he wished to form a family trust to hold his assets. Mr Welch asked Mr Warn if he would be an executor of Mr Welch’s new will, and a trustee of his (to be formed) family trust, along with Mr Jansen.
[9] In February 2022, Mr Welch gifted his six nieces and nephews (including Mr Warn) the sum of $50,000 each.
[10] In May 2022, Mr Welch instructed the law firm Cargill Stent Clarke Lawyers Limited to prepare a draft will and enduring powers of attorney (EPOAs). Under the draft will prepared by Cargill Stent Clarke, the residue of Mr Welch’s estate was to be transferred to a trust to be formed and known as the Welch Family Trust. The trustees of the trust were to be Mr Warn and Mr Jansen, and the beneficiaries were to be Charlotte and Charlotte’s children.
[11]In June 2022, Mr Welch was diagnosed with cancer.
[12] The draft will prepared by Cargill Stent Clarke was not finalised or signed by Mr Welch for reasons unknown.
[13] However, over a year later, on 26 June 2023, Mr Welch instructed Tompkins Wake to draft a new will and settle a family trust. He explained the purpose of the family trust was to receive his assets for the benefit of Charlotte and [REDACTED]. Primarily, Mr Welch was concerned about Charlotte’s ability to manage his assets if she were to receive his residuary estate directly upon his death (as was the case with the 2016 will) due to her lack of experience in financial matters.
[14]In respect of his new will, Mr Welch instructed Tompkins Wake as follows:
(a)He wished for Mr Warn and Mr Jansen to be executors and trustees of his estate.
(b)His residuary estate was to go to his family trust, the final beneficiary of which would be Charlotte.
(c)He was unsure as to whom he would nominate in his will to hold the power of appointment and removal of trustees of his family trust. He was going to consider this further and confirm his instructions once he had decided.
(d)He did not want to include the gifting provision contained in the 2016 will for his nieces and nephews to receive a gift of $50,000 each as he had already made these gifts.
[15] Tompkins Wake prepared a draft will for Mr Welch (along with new EPOAs) and emailed them to him on 3 July 2023.
[16] Matters were not progressed in relation to Mr Welch’s draft will or the formation of his family trust for a significant period. Eventually, Mr Welch made an appointment to meet with Tompkins Wake on 6 May 2024.
6 May 2024 meeting
[17] On 6 May 2024, Mr Welch met with Tompkins Wake to discuss his family trust and new will. His doctors had told him he would likely not live past Christmas given the advancement of his cancer. Mr Welch wished to finalise matters in respect of his draft will, the trust and his EPOAs.
[18]In relation to the family trust, Mr Welch instructed Tompkins Wake as follows:
(a)The trust was to be called the Welch Family Trust (the Trust).
(b)The Trust was to be settled during Mr Welch’s lifetime, rather than in his will.
(c)He wished for himself, Mr Warn and Mr Jansen to be appointed as trustees.
(d)He would have the power of removal and appointment of trustees, but under his will that power would transfer to Mr Jansen.
(e)He wished to take steps to transfer his assets to the Trust during his lifetime.
[19] In relation to his draft will, the Tompkins Wake drafters understood Mr Welch’s instructions were as follows:
(a)Mr Welch wished to gift five per cent of his shareholding in Welch Farms Ltd (Welch Farms) to Mr Jansen and 10 percent of his shareholding to “the Stewarts”, who Tompkins Wake understood to be co-shareholders with Mr Welch in Welch Farms. Mr Welch intended those gifts to be made during his lifetime, however he wished for there to be a gifting provision in his will, should that not occur.
(b)Mr Welch also wanted to gift a sum of money to his companion Ms French and to the Geyser Community Foundation. Again, it was Mr Welch’s intention that those gifts be made during his lifetime, but that there be a gifting provision in his will should that not occur. He suggested that his gift to Ms French would be not less than
$200,000, but he had not decided on the figure. He did not have a figure in mind for his gift to Geyser Community Foundation.
[20] Following the meeting with Mr Welch of 6 May 2024, Tompkins Wake updated his draft will in accordance with these instructions as follows:
(a)A new clause 5 was inserted:
Gifts
5. If the following gifts have not been made in my lifetime,
I GIVE:
(a)Ten per cent (10%) of my shareholding in Welch Farms Limited to Mark Alexander Stewart and Carolyn Stewart equally if they are living at my death or if only one is living at my death, then to that one alone.
(b)Five per cent (5%) of my shareholding in Welch Farms Limited to Murray Brent Jansen if he is living at my death.
(c)$words and figures to my good companion
Sally French if she is living at my death.
(d)$words and figures to the Geyser Community Foundation Charities Registration number CC21560 to be paid into the Arts Fund so that it may be dealt with by the Trustees of the Foundation in accordance with the terms of that Fund. I direct that the receipt of any responsible officer of the Geyser Community Foundation to be a full discharge to my Trustees.
(b)The definition of “my Family Trust” at clause 6(b) of the draft will was updated to mean the Trust.
(c)Clause 8 was updated to record that Mr Jansen was to hold the power of appointment and removal of trustees of the Trust.
(d)There had been a precedent update to the Tompkins Wake will precedent in the time since Tompkins Wake had initially prepared Mr Welch’s draft will in 2023, so clauses 10, 13, and 14 were amended or inserted to reflect Tompkins Wake’s updated precedent.
[21] In respect of the gift of Welch Farm shares to “Mark Alexander Stewart and Carolyn Stewart”, at the meeting on 6 May 2024 Mr Welch had referred to them as “the Stewarts” and co-owners of Welch Farms rather than by name. In order to insert their names into the gifting clause, Tompkins Wake carried out a Companies Register search of Welch Farms. The directors of Welch Farms are Mr Welch, Mr Jansen, Mark Stewart and Carolyn Stewart. On that basis, Tompkins Wake assumed that Mr Welch’s reference to “the Stewarts” was to Mark Stewart and Carolyn Stewart. They were therefore included as the recipients of the gift of the Welch Farm shares in the draft will. However, it became apparent to Tompkins Wake after Mr Welch’s death that the co-shareholder of Welch Farms is Stewart Farms (2008) Limited, a company owned by Mark Stewart and his wife Jolene Stewart, and that it was Jolene Stewart to whom Mr Welch intended to gift the shares, not Carolyn Stewart. Carolyn Stewart is Mark Stewart’s mother and, while a director of Welch Farms, is not a shareholder.
13 May 2024 meeting
[22] On 13 May 2024, Mr Welch met with Tompkins Wake again. The purpose of this meeting was to settle the Trust, finalise his draft will and obtain relationship property advice in respect of his relationship with Ms French.
[23] At this meeting, Mr Welch signed the deed of trust (the Trust Deed) for the Trust and resolutions of trustees.
[24]The relevant terms of the Trust Deed are as follows:
(a)The trustees are Mr Welch, Mr Jansen, and Mr Warn.
(b)The discretionary beneficiaries are:
(i)Mr Welch;
(ii)Charlotte;
(iii)any issue of Charlotte;
(iv)any trust that includes for the time being among its beneficiaries (contingent or otherwise) any beneficiary;
(v)any association, club, institution, society, organisation or trust not carried on for the private profit of any person whose funds are applied wholly or principally to any civic, community, charitable, philanthropic, religious, benevolent or cultural purpose, whether within New Zealand or elsewhere; and
(vi)any person appointed pursuant to clause 7.1(a).
(c)The final beneficiary is Charlotte.
(d)The vesting day is 125 years from the date of the Trust Deed, or such earlier day as the trustees may from time to time by deed appoint.
(e)The trustees have the absolute and uncontrolled discretion to:
(i)pay or appropriate all or any part of the income of the Trust Fund to one or more of the discretionary beneficiaries;
(ii)pay or appropriate all or any part of the capital of the Trust Fund to one or more of the discretionary beneficiaries; and
(iii)resettle all or any part of the Trust Fund upon the trustees of any trust which includes any one or more of the discretionary beneficiaries as a beneficiary.
[25] A copy of the updated draft will was presented to Mr Welch at the meeting, and Ms Findlater of Tompkins Wake went through the changes that had been made to the
previous draft in accordance with Mr Welch’s instructions on 6 May 2024 (as outlined above).
[26] Ms Findlater said that Mr Welch, having reviewed the contents of the draft will, instructed Tompkins Wake that he wished to change the percentages of the shareholdings he was to gift under clauses 5(a) and (b) as follows:
(a)he wished to gift seven per cent of his shareholding in Welch Farms to Mark and Carolyn Stewart (as opposed to the 10 per cent recorded in the earlier draft, as Mr Welch had instructed at the meeting on 6 May 2024);
(b)he wished to gift three per cent of his shareholding in Welch Farms to Mr Jansen (as opposed to the five per cent recorded in the earlier draft, as Mr Welch had instructed at the meeting on 6 May 2024); and
(c)he wished to gift Ms French the amount of $300,000 under clause 5(c), if this gift was not made during his lifetime.
[27] Ms Findlater said she handwrote these amendments on a hard copy of the earlier draft, but has been unable to locate a copy of that document. Ms Sullivan of Tompkins Wake who also attended the meeting made a file note which recorded “7% shding to Mark + Carolyn” and “3% shding to Murray”. As Ms Sullivan did not know the various persons, her evidence was that she assumes she wrote down what Mr Welch said. If Mr Welch referred to Mark and Carolyn, he did not identify what Tompkins Wake now understand to be an error in the draft will (that the gift should have been to Jolene rather than Carolyn Stewart).
[28] The final matter requiring Mr Welch’s instructions was the amount of the gift to the Geyser Community Foundation under clause 5(d). Mr Welch advised that he was going to meet with a representative of the Geyser Community Foundation at 2:00 pm that afternoon and was therefore unable to confirm the exact amount of the gift until after the meeting. As such, Mr Welch’s draft will could not be finalised and signed by him.
[29] Following the 13 May 2024 meeting, Tompkins Wake made a number of attempts to contact Mr Welch in order to make an appointment to finalise and sign his will. Eventually, an appointment was scheduled for 2:00 pm on 31 May 2024.
16 May 2024
[30] On the morning of 16 May 2024, Mr Jansen visited Mr Welch. According to Mr Jansen, Mr Welch mentioned that he was gifting four per cent of his shares in Welch Farms to Mr Jansen and seven per cent to Mark and Jolene Stewart. Mr Jansen said that later that morning Mr Welch used a pen and paper to work out how the gifts would alter his shareholding in Welch Farms. Mr Jansen said Mr Welch’s calculations involved subtracting the gifts to Mark and Jolene Stewart (seven per cent of his Welch Farm shares) and to him (four per cent of his Welch Farm shares) from his total shares, which he recorded as 67 per cent of the Welch Farm shares.
[31] Later on 16 May 2024, at 2:54 pm, Mr Welch sent an email to the accountants for Welch Farms, BDO Taranaki. The email stated:
I wish to transfer some of my shares in Welch Farms Ltd. (WFL). The reason for this is that my health continues to deteriorate quickly and my interest in the farm will go to a Family Trust on my demise. My demise, according to my consultant oncologist, may be within three months.
I currently hold 40,000 or 66% out of the total of 60,000 ordinary shares in the Company. Out of my 66% I would like to gift 7% to co owners Mark and Jo Stewart and 4% to fellow director Murray Jansen. Mark and Jo have 33% ownership in WFL as Stewart Farms Ltd. (SFL) Because of tax ramifications the gift to them may have to be them personally then by them to SFL. Those are the accounting issues which we need to have sorted out. After all we are dealing with a gift which is normally to a person or persons and not to a company. If it can be done direct from me to SFL and not have tax issues- well okay proceed that way. The gift of 4% shares to Murray as it is personal should not be a problem. The co-owners SFL will need to give their approval for the transfer proposals according to the WFL constitution. That in reality is the set up of new shareholder Murray Jansen. I talked to Mark and Jo about a possible share transfer about six months ago.
Following the transfer the shareholding would be:
Andrew Welch (on my demise a Family Trust) 56% down from 66% SFL through Mark and Jo Stewart up 7% from 33% to 40%
Murray Jansen new shareholder 4%
Something went wrong with the percentages as I thought I would move across 10% but it turns out to be 11% but I think the final holdings 56, 40 and 4% in the end should be suitable for working out dividends and other similar matters.
I hope that this transaction is not going to be too complicated and we can keep the company expenses down to a minimum. I would like the new shareholding to be in place for the 30 June 2024 / 2025 financial year.
I thank you for your assistance in this matter.
[32] Tompkins Wake did not see this email until Mr Jansen provided it after Mr Welch’s death.
17 May 2024
[33] The next day, 17 May 2024, Mark and Jolene Stewart visited Mr Welch. Mr Welch mentioned to them an email he had sent to the Welch Farms accountant about the gifting of shares to them and to Mr Jansen.2
[34] Also on 17 May 2024, Mr Warn signed the Trust Deed and the resolutions of trustees.
Payments to Ms French and Geyser Community Foundation
[35] On or about 17 May 2024, Mr Welch paid the sum of $300,000 to Ms French (the gift provided for under clause 5(c) of the draft will).
[36]Also before his death, Mr Welch directed his bank to make payment of
$305,000 to Geyser Community Foundation (the gift provided for under clause 5(d) of the draft will, although Mr Welch did not communicate the amount of his intended gift to Tompkins Wake). This payment was made on 24 May 2024.
Mr Welch’s death
[37]On the evening of 22 May 2024, Mr Welch was admitted to Taupō hospital.
2 Mr Stewart also referred to Mr Welch mentioning the gifts on earlier occasions – in 2023 and on 17 April 2024 – but I do not consider these earlier references to numbers that coincided with the respective drafts are reliable indicators of Mr Welch’s testamentary intention.
[38] On the morning of 23 May 2024, Tompkins Wake received advice from Mr Warn that Mr Welch was in Taupō hospital and close to passing. In light of this advice, Tompkins Wake made amendments to Mr Welch’s draft will in accordance with the instructions provided by Mr Welch at the meeting on 13 May 2024 in the event he was still well enough to sign his will. Those amendments were as follows:
(a)With respect to clause 5(a) of the draft will, amending the gift of shares in Welch Farms to Mark Alexander Stewart and Carolyn Stewart from 10 per cent to seven per cent.
(b)With respect to clause 5(b) of the draft will, amending the gift of shares in Welch Farms to Mr Jansen from five per cent to three per cent.
(c)With respect to clause 5(c) of the draft will, stating that the gift to Ms French was to be in the amount of $300,000.00.3
[39] Clause 5(e) was also inserted which stated Mr Welch’s wish that, if there were insufficient moneys in Mr Welch’s estate to meet the specific bequests in clause 5(c) and (d), being the gifts to Ms French and the Geyser Community Foundation respectively, the Trust use funds from the Trust’s trust fund to meet those bequests.
[40]Mr Welch passed away later that morning, having not signed the draft will.
[41]The same day, Mr Jansen signed the Trust Deed and resolutions of trustees.
Applicable principles
[42]Section 14 of the 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
3 The Tompkins Wake drafters were not aware that Mr Welch had already made this gift to Ms French on 17 May 2024.
(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.
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.
[43]Section 8 of the Act addresses the meaning of will. It relevantly provides:
8 Meaning of will
(1)Will means a document that—
(a)is made by a natural person; and
(b)does any or all of the following:
(i)disposes of property to which the person is entitled when he or she dies; or
(ii)disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or
(iii)appoints a testamentary guardian.
(2)When this Act refers to making, changing, revoking, or reviving a will, it means a will as defined in subsection (1).
(3)When this Act refers to a will in any other context, it means whichever is appropriate of the following:
(a)a will as defined in subsection (1); or
(b)a document that changes a will as defined in subsection (1); or
(c)a document that revokes a will as defined in subsection (1); or
(d)a document that revives a will as defined in subsection (1); or
(e)a codicil to a will as defined in subsection (1).
…
[44]Thus, a will includes a codicil to a will.
[45]More than one document may be read together as the deceased’s will.4
[46] An applicant must satisfy the Court that the criteria in s 14(1) apply, and having done so, the Court must then be satisfied that the document expresses the deceased’s testamentary intentions before declaring the will valid.
[47]The Court’s approach to s 14(2) was summarised by Mander J in
Caird v Caird:5
[39] This Court has remarked that a person who in good faith sets out to express his or her testamentary intentions should not have those intentions thwarted by technicalities, and that the Court should endeavour to give effect to the deceased person’s intentions.6 Where there is evidence of the person’s testamentary intentions, it is better that they be given effect, in preference to the disposition of property which would take effect under any previous will, or in the situation of intestacy.7
[40] The existence of the document will of itself be an indication that the deceased person did not wish the disposition which would otherwise occur to take place.8 However, it must be established on the balance of probabilities that the evidence as a whole, including evidence of the will-maker’s statements and testamentary intentions, that the document expresses that person’s intentions.9 The test is not an objective one. It is specific to the particular deceased person and no two cases will necessarily be the same.10 Any evidence which may assist to determine that question may be taken into account.11
[48] Where the Court is satisfied that the document represents the deceased person’s testamentary intentions, the Court retains a discretion but it is only residual in nature. Ordinarily — that is, absent good, even exceptional, reasons — the Court would
4 Public Trust v Baker [2025] NZHC 661 at [11]; citing Winterburn v Wilson [2016] NZHC 1422;
Re Gibson [2021] NZHC 3256; Broadbent v Broadbent-Matete [2024] NZHC 3673.
5 Caird v Caird [2018] NZHC 1605.
6 Re Estate of Wong [2014] NZHC 2554 at [24].
7 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].
8 At [18].
9 At [16]; and Re Estate of Wong [2014] NZHC 2554 at [24].
10 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [16].
11 At [15] and [17].
declare the document valid.12 A potential claim under the Family Protection Act 1955 is not a sufficient reason to decline validation.13
Discussion
[49] There is no doubt that the draft will as amended following Mr Welch’s further instructions on 13 May 2024 meets the threshold requirements in s 14(1). It is a document that appears to be a will but is not signed or witnessed as required by s 11.
[50] The 16 May 2024 email is also a document for the purposes of s 14(1). I accept it appears to be a codicil to a will. This appearance requirement is concerned with the content of the document and what it conveys, rather than its form.14 While not identifiable as a will in the normal sense, I accept the email addresses disposal of property to which the person is entitled when he or she dies.15 Even though Mr Welch might have anticipated the changes could occur prior to his death, I accept the email purports to change the 2016 will and/or the draft will he had discussed with Tompkins Wake. The email also does not meet the witness requirements of s 11.
[51] Turning to whether the draft will expresses Mr Welch’s testamentary intentions, there is no doubt that he wished to amend the 2016 will in key respects – to change his executors, to make specific gifts and to leave his residuary estate to the Trust, of which Charlotte was the final beneficiary, rather than to Charlotte personally. I am satisfied on the evidence that Mr Welch’s testamentary intention was to change his executors and leave his residuary estate to the Trust.
[52] As for the specific gifts, I am satisfied that Mr Welch’s testamentary intention was not to make gifts to his nieces and nephews since he had given each of them
$50,000 in February 2022. However, issues arise in relation to some of the specific gifts included in the draft will,16 due to the inconsistencies between the various
12 Balchin v Hall [2016] NZHC 837 at [11]; Caird v Caird [2018] NZHC 1605 at [78]; and
Holman v Oakley (as executors in estate of Fairburn) [2020] NZHC 2103 at [33].
13 Balchin v Hall [2016] NZHC 837 at [17]; and Re Ruth [2023] NZHC 276 at [12].
14 Re Estate of Campbell [2014] NZHC 1632, [2014] 3 NZLR 706 at [11].
15 Wills Act 2007, s 8(1)(b)(i).
16 No issue arises in relation to the gifts to Ms French and Geyser Community Foundation, or in relation to clause 5(e) of the draft will, given the steps Mr Welch took before his death, referred to at [35] and [36] above.
documents as to whether Carolyn or Jolene Stewart was an intended recipient and as to the quantum of the gifts.
[53] It is common ground that in this case Mr Welch’s testamentary intention may be determined by reading the draft will and 16 May 2024 email in combination. This is reflected in the primary orders sought declaring the draft will a valid will and the 16 May email a valid codicil.
[54] I am satisfied that Mr Welch’s testamentary intention was to make a gift to Jolene Stewart rather than Carolyn Stewart. I accept that the reference to Carolyn Stewart was a mistake – both by the Tompkins Wake drafters when they took the reference to “the Stewarts” to be to the Stewarts they identified as directors of Welch Farms, and by Mr Welch when he did not correct the mistake in the draft will at the 13 May 2024 meeting. That is clear from the events on 16 and 17 May 2024.
[55] As to the quantum of the gifts to Mark and Jolene Stewart, and to Mr Jansen, it is clear that Mr Welch changed his mind as to the percentages in the days between 6 and 13 May 2024. However, Mr Welch’s email of 16 May 2024 raises further issues about those percentages. The seven per cent for the Stewarts in the second paragraph of the email reflects Mr Welch’s instructions to Tompkins Wake on 13 May 2024. However, the figure for Mr Jansen is four per cent, rather than three per cent as Mr Welch instructed Tompkins Wake on 13 May 2024. Ms Brown, for the applicants, submitted that the 16 May email indicates that, subsequent to the 13 May meeting, Mr Welch changed his mind (again) with respect to the percentage of the gift to Mr Jansen from three per cent to four per cent. Accordingly, she submitted that ultimately Mr Welch settled on gifts of seven per cent to Mark and Jolene Stewart, and four per cent to Mr Jansen.
[56] However, the later paragraphs in Mr Welch’s 16 May 2024 email raise issues as to whether he meant percentages of his shareholding, as Tompkins Wake had recorded, or percentages of the company as a whole, and whether he meant Mark and Jolene Stewart personally or their company Stewart Farms (2008) Ltd (SFL). I set out these paragraphs of the 16 May email again for convenience:
Following the transfer the shareholding would be:
Andrew Welch (on my demise a Family Trust) 56% down from 66% SFL through Mark and Jo Stewart up 7% from 33% to 40%
Murray Jansen new shareholder 4%
Something went wrong with the percentages as I thought I would move across 10% but it turns out to be 11% but I think the final holdings 56, 40 and 4% in the end should be suitable for working out dividends and other similar matters.
[57] As to whether the recipient was intended to be Mark and Jolene Stewart personally or their company SFL, I accept that, reading the email as a whole, Mr Welch intended the gift to be to Mark and Jolene Stewart personally given his reference to tax ramifications. He envisaged they would then transfer the shares to their company.
[58] As to the percentages, however, I do not accept the applicants’ submission. The calculations in the later paragraphs of the email indicate confusion between Mr Welch and Tompkins Wake. Accepting the email indicates a change in the intended gift to Mr Jansen from three per cent to four per cent, the four per cent (and the seven per cent gift to Mark and Jolene Stewart) must refer to approximate percentages of the company’s 60,000 total shares, not percentages of Mr Welch’s 40,000 shares. Otherwise, seven per cent of his shareholding of 40,000 shares (2,800 shares) is only 4.67 per cent of the total shares in the company, and four per cent of his shareholding of 40,000 shares (1,600 shares) is only 2.67 per cent of the total shares in the company. Mr Welch would then only be gifting a total of 7.34 per cent of the shares and would remain the owner of 35,600 shares or 59.34 per cent of the total shares. That would mean that instead of the shareholding changes referred to in his email, the shareholdings after transfer would be:
Mr Welch/Trust 59.33% (66.67%-4.67%-2.67%)
SFL through Mark and Jo Stewart up 4.67% from 33.33% to 38% Murray Jansen new shareholder 2.67%
[59] It is clear from the email that this is not what Mr Welch intended. Further, reading the email as a whole, the earlier paragraph of the email must also have been referring to percentages of the company’s total shares, not percentages of Mr Welch’s 40,000 shares. “Out of my 66%” does not itself require the latter interpretation.
[60] In that respect, it is more likely there was a misunderstanding between Mr Welch and Tompkins Wake at the earlier meetings than that he changed his mind after the meetings. However, it is likely that Mr Welch changed his mind insofar as the precise percentages were concerned so as to effect his intended result.
[61] In any event, whatever Mr Welch’s testamentary intention was as at 13 May 2024, reading his 16 May 2024 email as a whole against the background of his meetings with Tompkins Wake, I am satisfied that by 16 May 2024 Mr Welch’s testamentary intention was to make specific gifts of Welch Farm shares so as to result in final holdings of 56 per cent, 40 per cent and four per cent specified in the email, which would be suitable for working out dividends and other similar matters. This does not involve speculation or an incomplete plan.17 It explains the discrepancy between 10 per cent and 11 per cent, which Mr Welch referred to in his email. It is the rounding up of the gift to Mark and Jolene Stewart (from 6.67 per cent to 7 per cent) that caused this discrepancy. Gifts resulting in the specified final holdings would total 10.67 per cent whereas gifts of seven per cent (as sought by Mark and Jolene Stewart) and four per cent would leave the Trust with an odd final holding (55.67 per cent), which Mr Welch was seeking to avoid.
[62] Thus, the specific gifts resulting in final holdings of 56 per cent, 40 per cent and four per cent are:
(a)Mark and Jolene Stewart – 4,000 shares (6.67 per cent of the total shares); and
(b)Mr Jansen – 2,400 shares (four per cent of the total shares).
[63] Interpreting the 16 May 2024 email in this way, I accept that the draft will and the 16 May email should be read together as expressing Mr Welch’s testamentary intention on the basis that the draft will (as amended by Tompkins Wake following the 13 May meeting) expressed his testamentary intention at that meeting, which remained his testamentary intention except that the 16 May email is a codicil that expresses his testamentary intention to change the specific gifts in the draft will as indicated in [62]
17 Compare White v White [2014] NZHC 865.
above. Reading the draft will and 16 May email together in this way, I consider it is appropriate to declare the draft will and codicil valid under s 14.
[64] Having reached this conclusion, it is unnecessary to address the alternative order sought. Suffice to say, I do not consider that the draft will omitting clause 5 expresses Mr Welch’s testamentary intention.
Result
[65] I make orders as sought in paragraphs 1(a) and (b) of the originating application dated 16 September 2024 on the basis that the codicil expresses Mr Welch’s testamentary intention to provide the specific gifts as indicated in [62] above.
Costs
[66]All parties seek that their costs be met from Mr Welch’s estate.
[67] Having regard to the positions taken by each of the parties, the result and the state of Mr Welch’s testamentary writings,18 I make costs orders as follows.
(a)The applicants’ actual and reasonable costs of the proceeding are to be met from Mr Welch’s estate.
(b)The first respondent’s 2B costs for appearance at the hearing are to be met from Mr Welch’s estate.
[68] The second respondents’ 2B costs of the proceeding are to be met from Mr Welch’s estate.
Gault J
18 By analogy with the principles that apply in probate cases: In re Paterson (Deceased) [1924] NZLR 441.
Solicitors / Counsel:
Ms R J Brown and Ms N E Hooper, Tompkins Wake, Rotorua Mr S I Robinson, Paino & Robinson, Upper Hutt
Ms A Douglass, Barrister, Dunedin
Mr M Copeland (second respondent’s instructing solicitor), Mark Copeland Lawyers, Rotorua
0
11
1