In the Matter of an application by Daimon Te Kanawa Pitiroi for an order that a document be declared a valid will of Te Kanawa Pitiroi Applicant

[2024] NZHC 2669

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2023-463-0021

[2024] NZHC 2669

UNDER

Section 14 of the Wills Act 2007

AND

IN THE MATTER

of an application by

DAIMON TE KANAWA PITIROI

for an order that a document be declared a valid will of TE KANAWA PITIROI Applicant

On the papers:	16 September 2024
Counsel:	C L Robertson for applicant
Date of judgment:	16 September 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 16 September 2024 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

MMC Law Ltd, Taupō Grantham Law, Taupō

RE PITIROI [2024] NZHC 2669 [16 September 2024]

[1]                 Te Kanawa Pitiroi died on 27 October 2022. The Court offers its condolence to his survivors.

[2]                 Te Kanawa Pitiroi left no will. Daimon Pitiroi, as successor on intestacy to his father’s estate, seeks my declaration, under s 14 of the Wills Act 2007, an evidenced document created in 2022 is his father’s valid will. Given the absence of opposition, and no further evidence from served parties, my decision is sought on the papers.

Background

[3]                 On 18 October 2022, Te Kanawa Pitiroi gave his solicitors instructions to draft his will. Before it could be finalised with him, Te Kanawa Pitiroi died.

[4]                 Danielle Aimee Malpas-Green, a registered  legal  executive  employed  by Te Kanawa  Pitiroi’s   solicitors,   has   filed   affidavit   evidence   she   met   with  Te Kanawa Pitiroi on 18 October 2022, and obtained his instructions of his testamentary wishes. His wishes broadly were to dispose of his estate primarily to benefit his wife, Kataraina Pitiroi — on whose death any residue was to be divided into two shares, one in respect of each of his sons, Daimon and Derek, for reasoned differential application between them — and otherwise to gift his te ao Māori and mātauranga property to the Waitetoko Marae. The document marked “B” annexed to Ms Malpas-Green’s affidavit sworn 6 April 2023, drafted by her in accordance with his instructions, expresses those wishes.

Validation of wills

[5]Section 14 of the Wills 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

(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.

(3)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.

[6]Section 14 applies to the evidenced document, because it:

(1)is a document;

(2)appears to be a will, in that it is to be made by Te Kanawa Pitiroi, and seeks to dispose of property to which he was entitled when he died;1 and

(3)does not comply with s 11 (which relevantly requires the document to be signed and witnessed).

[7]                 I may declare the document Te Kanawa Pitiroi’s valid will if I am satisfied the document expresses his testamentary intentions. The discretion conferred by s 14 is residual only: good reason would be required to refuse an order if so satisfied.2 I am essentially to “evaluate the relevant circumstances and reach a conclusion”.3 I am to take “a robust approach”.4

Does the document express Te Kanawa Pitiroi’s testamentary intentions?

[8]                 Given the circumstances  of the 2022 document’s making as explained by  Ms Malpas-Green, and her explanation of Te Kanawa Pitiroi’s objective in giving her instructions, I am satisfied the document expresses his testamentary intentions,5 for disposition of his property.6

1      Wills Act 2007, s 8(1).

2      Balchin v Hall [2016] NZHC 837 at [11].

3      Re Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].

4      Watt v Owston-Doyle [2015] NZHC 1292 at [12], citing Re Feron [2012] NZHC 44, [2012] 2 NZLR 551 at [11].

5      Wills Act, s 14(2).

6      Section 8(1)(b)(i).

Result

[9]                 I  declare  the   original   of   the   document   marked   “B”   annexed   to   Ms Malpas-Green’s affidavit sworn 6 April 2023 is the valid will of Te Kanawa Pitiroi. I direct the costs of this application be paid out of his estate.

—Jagose J