Whiten - [2025] NZHC 2839

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-509

[2025] NZHC 2839

IN THE MATTER of s 14 of the Wills Act 2007

AND IN THE MATTER

of an application by BETH JOLLY VANDERHAVEN for an order that a document be declared a valid will of the deceased CARL PHILIP WHITEN

Hearing: On the papers

Appearances:

K M Paterson for Applicant

M R Scott-Toft for the minor beneficiaries

Judgment:

29 September 2025

JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE WHITEN [2025] NZHC 2839 [29 September 2025]

Introduction

[1] By application dated 25 August 2025, Beth Vanderhaven seeks an order under s 14 of the Wills Act 2007 (the Act) that the undated “will” (the draft will) annexed to Ms Vanderhaven’s affidavit dated 19 August 2025, be declared the valid will of her late husband, Carl Philip Whiten.

[2] In addition to the affidavit of Ms Vanderhaven, the application is supported by an affidavit from Rebecca Cresswell, a solicitor at Buddle Findlay, who prepared the draft will.

[3] Ms Vanderhaven and Mr Whiten have two children aged one and three (the minor beneficiaries). Ms Vanderhaven made an interlocutory application dated 25 August 2025 seeking orders that Miria Scott-Toft be appointed as counsel for the minor beneficiaries and that service of all documents on the minor beneficiaries be affected by way of service on Ms Scott-Toft. An order was made accordingly and on 23 September 2025 Ms Scott-Toft filed and served her report on behalf of the minor beneficiaries confirming that there is no opposition to an order validating the draft will.

[4] It follows the application is not opposed. I indicated to the parties that in those circumstances I would deal with the application on the papers. I am satisfied that the order sought is appropriate and briefly address my reasons.

The evidence

[5] Ms Vanderhaven and Mr Whiten met in 2020. At that time, Mr Whiten owned a property in Bentley Street, Christchurch. Ms Vanderhaven subsequently purchased a property in Warrington Street, Christchurch.

[6] On 29 January 2021 they entered into a contracting out agreement. That preserved their own properties as separate property and any property acquired together as relationship property. It was agreed that the Bentley Street property would become the family home following the birth of their first child and would be subject to the Property (Relationships) Act 1976. There were reciprocal clauses providing that on

the other’s death there would not be a claim to any separate property unless provided for in their respective wills. At that time, Mr Whiten did not have a will.

[7] Ms Vanderhaven and Mr Whiten’s first child was born in May 2022. In September 2022, Mr Whiten was diagnosed with terminal brain cancer. In May 2023, Ms Vanderhaven and Mr Whiten were engaged.

[8] They then decided they should each prepare wills…

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 Whiten

Details

AGLC: Whiten [2025] NZHC 2839
Case: [2025] NZHC 2839
Decision Date: 29 September 2025

CaseChat Overview and Summary

Beth Jolly Vanderhaven applied to the High Court of New Zealand, Christchurch Registry, seeking a declaration that a draft will prepared by her late husband, Carl Philip Whiten, be recognised as his valid will. The application was made under section 14 of the Wills Act 2007, which allows the court to declare a document as a valid will if it satisfies certain conditions. The primary issue for the court was whether the draft will truly reflected Mr Whiten's testamentary intentions, despite not being formally executed before his death.

The court examined the evidence provided, including the draft will, affidavits from Ms Vanderhaven and a solicitor who prepared the draft will, and the contracting out agreement between the couple. The court found that the draft will was consistent with Mr Whiten's instructions and intentions as gathered from a will questionnaire and subsequent discussions with Ms Vanderhaven. The delay in signing the draft will, due to Mr Whiten's deteriorating health and other family commitments, did not negate his clear testamentary intentions as expressed in the draft will. The court was satisfied that Mr Whiten intended for his residuary estate to pass to Ms Vanderhaven if she survived him.

The court concluded that the draft will was a genuine expression of Mr Whiten's wishes and ordered that it be declared as his valid will. The court also ordered that the costs of the application be paid from Mr Whiten's estate. This decision ensures that Mr Whiten's expressed intentions are honoured, and his estate is distributed accordingly.

Orders