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 in order to provide for their children in the event of their death. In September 2023, they contacted Buddle Findlay to assist with refinancing and the preparation of wills and enduring powers of attorney. At that time they were planning their wedding to take place in March 2025. Their wills were prepared in contemplation of their marriage.

[9]    Ms Cresswell was instructed on the matters set out above. She confirms that the instructions  she received for the draft  will were via a will  questionnaire that  Mr Whiten had completed and sent to Ms Cresswell on or around 20 September 2023. Ms Vanderhaven confirms that she and Mr Whiten discussed the questionnaires, filling them out together. Ms Vanderhaven confirms that she and Mr Whiten wanted to appoint each other as executors of their estates and wanted each other to receive the entirety of each other’s estates. They wanted to provide for their children after the age of 25 if one of them predeceased the other. Ms Cresswell deposes that the draft will was prepared in accordance with Mr Whiten’s express instructions.

[10]   By the end of September 2023, the refinancing had been completed and the Bentley Street property was transferred to Ms Vanderhaven and Mr Whiten as tenants in common in equal shares.

[11]   Ms Cresswell emailed Ms Vanderhaven and Mr Whiten on 9 November 2023 highlighting that their instructions that they would like their residuary estate to be passed to each other on death was consistent with clauses of the contracting out agreement where they had each agreed to have no claim on the separate property of the other unless otherwise specified in their wills.

[12]   In December 2023, Ms Cresswell emailed the draft will to Mr Whiten for his review. Following receipt of the draft will, Mr Whiten and Ms Vanderhaven discussed the contents of the draft will and Mr Whiten agreed that it reflected his testamentary intentions, save for the fact they both wished to specify the names of their children who were living at the time of executing the draft will and confirm who the guardian(s) would be for their children.

[13]   The draft will provides that Ms Vanderhaven be appointed sole executor and trustee. It provides that all chattels be gifted to the trustee, and the estate be held by the trustee to pay the debts, funeral expenses, duties and administration expenses of the estate, and pay the balance to Ms Vanderhaven, as well as providing for the event that Ms Vanderhaven predeceased Mr Whiten.

[14]   It was not long after completing the will questionnaires that Ms Vanderhaven learnt she was pregnant with their second child. That led to a delay in finalising the wills so that the baby’s name could be explicitly referenced. The couple’s second child was born in June 2024.

[15]   Mr Whiten’s health deteriorated, and they moved their wedding forward to January 2025. Mr Whiten re-engaged in treatment overseas. They discussed that once the wedding celebrations and further treatment was underway, they would return their focus to their affairs including finalising their wills. Sadly, within a very short time, Mr Whiten’s  health  took  a  turn  for  the  worst,  and  he  died  unexpectedly  on  20 March 2025. He was aged 31.

[16]Mr Whiten’s estate is estimated to be worth $210,000.

Legal principles

[17]Section 14 of the Act provides as follows:

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

(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.

1. 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.

[18]   Section 14 has been considered a remedial provision by the courts.1 In circumstances where there is evidence of the deceased’s testamentary intentions, it has been considered preferable to give effect to those intentions over the disposition of property which would take effect under a previous will or on intestacy.2

Discussion

[19]   The draft will was not signed or witnessed prior to Mr Whiten’s death and has remained in draft form. It was not compliant with s 11 of the Act. I am satisfied the document meets the threshold requirements of s 14(1) of the Act.

[20]   The crux of the application and the Court’s attention is focussed on the fourth requirement. I must be satisfied that the document claimed to be an expression of  Mr Whiten’s wishes is in fact a genuine expression of those wishes.

[21]   Having reviewed the evidence, including the exhibits, I am satisfied that the draft will is a genuine expression of Mr Whiten’s wishes and should be validated. I am also satisfied on the balance of probabilities that Mr Whiten had testamentary capacity and testamentary intention at the relevant time.

[22]   I consider the draft will  is  consistent  with  the position  reached  between Mr Whiten and Ms Vanderhaven in their contracting out agreement that they would

1      Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [18].

2 At [18].

provide for each other in their wills.   It is consistent with the clear instructions     Mr Whiten provided in the Buddle Findlay will questionnaire, the responses to which were incorporated into the draft will. I am satisfied that Mr Whiten intended for his residuary estate to pass to Ms Vanderhaven in its entirety if she survived him.

[23]   There was a delay of some 15 months between Mr Whiten being provided with the draft will and his death, but a delay, even a significant delay and ultimate failure by the deceased to sign their draft will, will not necessarily be fatal to an application under s 14.3 Appropriate inquiries as to why the will was not executed.4

[24]   I am satisfied that the reason the will was not signed was simply because    Mr Whiten became busy or distracted, reflecting the family focus on his health and treatment, their young children and wedding. It is clear that although Mr Whiten’s long-term prognosis was poor, he was expected to live significantly longer than he did. I accept that he had a number of other priorities having regard to the circumstances faced. I do not consider the delay of 15 months to be material and I accept there is no reason to think Mr Whiten might have had a change of mind. The evidence is quite to the contrary and reflected in the January 2025 marriage. There is no evidence suggesting the draft will does not reflect Mr Whiten’s testamentary intention.

[25]   Finally, I am assisted by the memorandum of Ms Scott-Toft. She advises that she visited Ms Vanderhaven and her two children and sets out the impact of the draft will on the minor beneficiaries compared to their impact under intestacy. She expresses her view that if Mr Whiten felt strongly about providing for his children at the time of his passing, he would have made specific gifts to them and given instructions to that effect.

[26]   Instead, Ms Scott-Toft states it is clear from Mr Whiten’s will questionnaire and email correspondence with his solicitor that he wanted the residue to go to     Ms Vanderhaven, and then to his children if she had predeceased him. She opines that this is standard practice in a “husband and wife” scenario where the parties have biological children together, and that wills are often drafted on this basis so that the

3      Amundson v Raos [2015] NZHC 2422, [2015] NZAR 1772 at [24].

4      Re Estate of Bishop [2014] NZHC 3355 at [6]; and Re Campbell (deceased) at [15].

surviving spouse inherits and continues to look after the children. Ms Scott-Toft acknowledges there is no suggestion testamentary capacity was an issue at the time Mr Whiten gave his will instructions. Considering the best interest of the children, Ms Scott-Toft supports the application.

[27]I am satisfied it is appropriate to make the orders sought.

Result

[28]   I order that the undated draft will of Carl Philip Whiten (a copy of which is marked “J” and attached to the affidavit of Beth Jolly Vanderhaven) be declared valid as the last will of Carl Philip Whiten.

[29]I order that the costs of the application be paid from the estate of Mr Whiten.

...................................................

Eaton J

Solicitors:

Buddle Findlay, Christchurch Summit Law Ltd, Christchurch