Will of Clark

[2025] NZHC 56

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-4

[2025] NZHC 56

IN THE MATTER OF

s 14 of the Wills Act 2007

AND

IN THE MATTER OF

The estate of KATARAINA JUNE CLARK (deceased)

AND

IN THE MATTER OF

An application by NGAHUIA AROHA CLARK

Applicant

Hearing:	On the Papers
Counsel:	K Hatzidakis for Applicant
Judgment:	4 February 2025

JUDGMENT OF CHURCHMAN J

The application

[1]                 Ngahuia Aroha Clark (the applicant) has applied on a without notice basis for an order declaring that a document dated 28 August 2017, a copy of which was attached to the affidavit of the applicant, be declared to be a valid Will pursuant to s 14 of the Wills Act 2007.

Without notice application

[2]                 Rule 19.2(xa) of the High Court Rules 2016 (HCR) permits applications for orders under s 14 of the Wills Act 2007 to be made by originating application.

Validation of a document as a Will of Clark [2025] NZHC 56 [4 February 2025]

[3]                 HCR 7.23 permits applications to be made on a without notice basis. Such applications can be made where the application affects only the applicant.1 The applicant relies on this ground.

[4]                 The applicant is the sole beneficiary of the document sought to be validated as a Will.

[5]                 The application is supported by a memorandum of counsel who certifies that all reasonable inquiries and all reasonable steps have been made or taken to ensure that the application contains all relevant information, including any opposition or defence that might be relied on by any other party or any facts that would support position of any other party.

[6]                 In these circumstances I am  satisfied  that  the  application  falls  within  HCR 7.23(2)(a)(ii) and grant leave for it to be filed on a without notice basis.

The Wills Act 2007

[7]                 Section 14 of the Wills Act 2007 authorises the High Court to declare a document which appears to be a Will but does not comply with s 11 of that Act to be a valid Will if it is satisfied that the document expresses the deceased person’s testamentary intentions.

[8]                 The document in question fails to comply with s 11(4) of the Wills Act in that it is witnessed by only one witness.

[9]                 Normally the Court would expect to see an affidavit from the solicitor who drafted the Will confirming that the contents of the document which was applied to be validated under s 14 represented the testamentary instructions given by the deceased to the solicitor. The Court would normally also expect an explanation as to how or why the Will was witnessed only by one witness. In the absence of such information, I am unable to include that the document sought to be validated does reflect the deceased testamentary intentions.

1      HCR 7.23 (2)(a)(ii).

[10]              I direct that the applicant file an affidavit from the person who drafted the document sought to be validated confirming that the contents of the Will reflected the instructions given by the deceased to the Will drafter as to the deceased’s testamentary intentions. The affidavit should also explain the circumstances in which the Will was witnessed by only one person.

[11]              Upon receipt of this information, I will reconsider the application for validation.

Churchman J

Solicitors:

Accessible Law, Whangārei for Applicant