Estate of De Jong [2023] NZHC 3121 (3 November 2023)

Last Updated: 10 November 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2617 [2023] NZHC 3121

UNDER	Section 14 of the Wills Act 2007
IN THE MATTER AND IN THE MATTER	of an application to declare will valid of the Estate of TEUNIS DE JONG

Hearing:	On the papers
Counsel:	NTC Batts for applicant
Date of judgment:	3 November 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 3 November 2023 at 4.50pm.

Pursuant to Rule 11.5 of the High Court Rules.

.............................. Registrar/Deputy Registrar

Solicitors:

Molloy Hucker, Auckland

RE ESTATE OF TEUNIS DE JONG [2023] NZHC 3121 [3 November 2023]

• [1] By without notice originating application dated 30 October 2023, Reuben Edward Marcus de Jong seeks my declaration, under s 14 of the Wills Act 2007, a draft document in his possession is his father’s valid will.

Background

• [2] Teunis de Jong died at Ons Dorp Dutch Retirement Village in Auckland’s Henderson on 7 May 2023. I offer the Court’s condolence to his surviving children, Damien, Reuben and Chantelle, whose mother, Sharon, predeceased their father in 2010. Given the commonality of surname, I mean no disrespect in referring to them by their given names.

• [3] In or about December 2010, inferentially to address Sharon’s death, Mr de Jong instructed his solicitor to prepare a will, which he then signed in the presence of Reuben and Mr de Jong’s solicitor and her assistant. The solicitor and assistant formally witnessed Mr de Jong’s signature.

• [4] On Mr de Jong’s death, despite diligent searches, the executed will could not be found. Reuben — who assisted Mr de Jong with personal administration, including making arrangements for the solicitor’s and assistant’s attendance on Mr de Jong to execute the will, and was his attorney — retained in his possession and now exhibits what he understood to be an unsigned copy of the executed document obtained from that attendance.

• [5] The solicitor since has died, but her assistant confirms the unsigned document “is in the form and style to wills prepared in our office at the time”, which she would have typed out, and was “consistent with the sort of instructions that [Mr de Jong] would have given”. The unsigned document is to benefit Damien, Reuben and Chantelle “as tenants in common in equal shares” with the residue of Mr de Jong’s estate under Reuben’s trusteeship.

Without notice application

• [6] Because Mr de Jong’s survivors all consent to the application, and requiring Reuben to proceed on notice would cause him undue delay, I determine the application can properly be dealt with without notice.¹

Validation of wills

• [7] 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.

• [8] Section 14 applies to the unsigned document, because it:

(1) is a document;

(2) appears to be a will, in that it is to be made by Mr de Jong and seeks to dispose of property to which he was entitled when he died;² and

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

• [9] I may declare the unsigned document Mr de Jong’s valid will if I am satisfied the document expresses his testamentary intentions. The discretion conferred by s 14

¹ High Court Rules 2016, r 7.46(3)(b).

² Wills Act 2007, s 8(1).

is residual only: good reason would be required to refuse an order if so satisfied.³ I am essentially to “evaluate the relevant circumstances and reach a conclusion”.⁴ I am to take “a robust approach”.⁵

Does the document express Mr de Jong’s testamentary intentions?

• [10] The solicitor since has died, but her assistant confirms the unsigned document “is in the form and style to wills prepared in our office at the time” and “consistent with the sort of instructions that [Mr de Jong] would have given”.

• [11] I thus am satisfied the document expresses Mr de Jong’s testamentary intentions,⁶ for disposition of his property.⁷

Result

• [12] I declare the original of the document marked “C” annexed to the affidavit of Reuben Edward Marcus de Jong sworn 8 August 2023 is the valid will of his father, Teunis de Jong.

—Jagose J

³ Balchin v Hall [2016] NZHC 837 at [11].

⁴ Re Zhu (deceased) HC New Plymouth CIV-2010-443-21, 17 May 2010 at [7].

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

⁶ Wills Act, s 14(2).

⁷ Section 8(1)(b)(i).