Tutaki M W Estate

JurisdictionNew Zealand
CourtHigh Court
JudgeAndrews J
Judgment Date13 May 2011
Docket NumberCIV 2010-419-001208



CIV 2010-419-001208

Under the Wills Act 2007

In the Matter of the Estate of Mary Waikahua Tutaki (Deceased)

Nancy Tutaki

P F Gorringe for Applicant

B M Nathan for D L H Golding

P F Gorringe, PO Box 7098, Hamilton East, Hamilton 3247.

Application under s14 Wills Act 2007 to have a will declared valid — deceased instructed solicitor to make alterations to previous will but died before she signed the new will — non-compliance with s11 — whether deceased had capacity — onus and standard of proof.

Held: This appeared to be the first time on which there had been an application under s14 that was opposed. In considering this matter, Australian case law on its statutory equivalent had to be treated with caution, as the Australian provision contained different wording. The focus under s14 was on the substance of the document, and not its form. It was on whether it expressed the deceased's intentions, rather than whether it was intended to be the deceased's will. The onus to satisfy the Court that the document expressed the deceased's intentions was on the applicant. While s14 WA was silent as to the standard of proof, the ordinary civil standard of balance of probabilities was adopted ( Re Hickford).

The document appeared to be a will. It had been prepared by a solicitor and was in a conventional will format. The evidence showed to the required standard of cogency that the draft expressed the deceased's intentions. The only changes made from the 2008 will were to incorporate the instructions recorded in W's file notes and W's evidence as to the deceased's instructions was reliable. W had prepared two wills for the deceased already and was therefore known to her. The deceased's mistake regarding Topine did not call into question whether she had intended to give the instructions she had. There was no question as to her capacity when she spoke to W and the mistake did had not raise an issue as to whether she had intended to exclude her nephew from the will.

On the basis of the evidence, the deceased had intended to make a will, had intended to sign it and knew the will had to be signed and witnessed. Although Re Hickford had set out three alternatives as to why a deceased had not signed a will, these were not exhaustive. In this case, the most likely explanation for her failing to sign the will was that she simply had not had enough time between receiving the will and becoming ill.

Application allowed. The draft will was valid as the last will of the deceased.



The applicant, Nancy Tutaki, has applied for an order directing that a document is the last will of Mary Waikahua Tutaki, who died in Hamilton on 11 August 2009. The application is made under s 14 of the Wills Act 2007 (“the Act”).


The application is opposed by Dean Leonard Huriama Golding, a nephew of Mary Tutaki.

Factual background
The 2008 Will

Mary Tutaki made a will on 1 December 2008 (“the 2008 will”). It was prepared by a solicitor, Ms Wake, and is a valid will under s 11 of the Act, as it is in writing, and was signed and witnessed in accordance with subs ( 3) and (4) of s 11.


Under the 2008 will, Mary Tutaki's niece, Nancy Tutaki, was appointed executor and trustee. There were specific bequests including a gift of $10,000 to Mary Tutaki's friend Rosemary Topine, provided Ms Topine survived her. If that did not occur, the gift was to go to Ms Topine's son.


The 2008 will also dealt with among other things, Mary Tutaki's home in Hamilton. This was to be sold and the net proceeds given in equal shares to Nancy Tutaki and Dean Golding. If Nancy Tutaki pre-deceased Mary Tutaki, her share was to go in equal shares to three named persons. If Dean Golding pre-deceased MaryTutaki, his share was to be added to the other share.


The residue of the estate was left to Nancy Tutaki, with a similar gift over provision.

The August 2009 document

On Monday 3 August 2009 Mary Tutaki telephoned Ms Wake. In her affidavit sworn on 22 October 2009, Ms Wake said that Ms Tutaki said she wanted to make two alterations to the 2008 will. These were to remove the gift to Ms Topine and to give her home to Nancy Tutaki – that is, to remove Dean Golding as a beneficiary. The two alterations were briefly recorded by Ms Wake in a file note dated 3 August 2009:

Mary Tutaki

Nancy – have the [house] Money to Rosemary

→ she has died

→ not to her son

Goes back to [residuary estate] [House] – to Nancy

Take out Dean

Nancy will distribute to nieces and nephews as per Mary's instructions 8478870

“J N Wake”


Ms Wake said further:

  • (a) In addition to the 2008 will, she had prepared a will for Mary Tutaki, which was signed and witnessed correctly, on 6 October 1999.

  • (b) Regarding the gift to Ms Topine, Mary Tutaki had informed her that Ms Topine had died since the 2008 will and she did not, after all, wish there to be a gift over to Ms Topine's son. Ms Wake had advised Mary Tutaki that the sum of $10,000 would therefore form part of the residue of the estate.

  • (c) Regarding the gift of a half share in her home to Dean Golding, Mary Tutaki had asked that all of her home was to be gifted to Nancy Tutaki, and that Mr Golding was not to remain as a beneficiary of any interest in the home. Ms Wake recorded that Mary Tutaki had told her she had had no recent contact with him and did not wish him to receive a half share.

  • (d) Mary Tutaki had told her that Nancy Tutaki would make a distribution from the residuary estate to Mary Tutaki's nieces and nephews, in accordance with instructions that she had given, or would give, to Nancy Tutaki.


Ms Wake could not recall the time of day of Mary Tutaki's call, but expected it would have been earlier rather than later in the day, as she was able to have a draft of an altered will sent out in the post to Mary Tutaki that evening. Ms Wake drafted a new will (“the August document”) in accordance with Mary Tutaki's instructions and posted it to her in that day's mail. In her covering letter, Ms Wake asked Mary Tutaki to read through the draft and ensure that it was in accordance with her instructions. Ms Wake also asked Mary Tutaki to ring her to either discuss any changes or to make arrangements for signing.

Ms Tutaki's illness and death

During the afternoon of Monday 3 August 2009, Mary Tutaki telephoned her niece Phillalena Kereopa. In her affidavit sworn on 8 October 2009, Ms Kereopa said that Mary Tutaki told her in that telephone call that she was to be admitted to Waikato Hospital the next day (Tuesday 4 August 2009). The hospital admission had been requested by Mary Tutaki's doctor, after she had had a fall that day.


Ms Kereopa and her daughter visited Mary Tutaki in hospital each day from Tuesday 4 August to Monday 10 August 2009. Generally, Mary Tutaki was in good spirits, alert, and interested in members of her family. However, on Monday 10 August 2009 Ms Kereopa noticed that Mary Tutaki had lost a lot of energy and seemed tired.


During her first week in hospital, Mary Tutaki told Ms Kereopa that she was waiting to receive a new will prepared by Ms Wake. Up to that day, Ms Kereopa had not been taking mail to Mary Tutaki but at her request, on Friday 7 August 2009, Ms Kereopa and her daughter went to Mary Tutaki's house and uplifted mail. They took the mail to the hospital on Saturday 8 August 2009. One piece of mail was an envelope from North End Law (Ms Wake's firm), containing the August document.


Ms Kereopa said that Mary Tutaki was excited to receive the envelope from North End Law and said it was what she had been waiting for. She asked for, and was given, a pen. However, because dinner was about to be delivered, Mary Tutaki decided not to do anything further with the envelope and it and the pen were put on a cabinet beside her bed, at her request. Before Ms Kereopa and her daughter left that evening, Mary Tutaki told them she would look at the new will later then, when she was ready, she would ask Ms Kereopa to ring Ms Wake to ask her to come to see her about the will.


Ms Kereopa visited Mary Tutaki on Sunday 9 August and Monday 10 August 2009. Mary Tutaki did not refer to the will, and the envelope from North End Law was not on the cabinet where they had put it. Ms Kereopa intended to visit Mary Tutaki on Monday 11 August, but was advised by family members that she had died at about 8 or 8:30am that day.


Ms Kereopa and her daughter collected Mary Tutaki's possessions from the hospital. The envelope from North End Law had been opened. They did not look inside the envelope and it was subsequently returned to Ms Wake.


Nancy Tutaki was not in New Zealand at the time of her aunt's death. In her affidavit sworn on 2 October 2009, she said that she is a nurse and was working in Saudi Arabia. She had had a lot of contact with Mary Tutaki during a visit to New Zealand in April–June 2009. Mary Tutaki had told her about the 2008 will. She said Mary Tutaki told her she intended to make a new will, in which she would remove Dean Golding as a half-share beneficiary of her home.


Nancy Tutaki said that her aunt's death came as a great surprise to her. She had accompanied Mary Tutaki on appointments with medical specialists and she had been declared to be in relatively good health.


Nancy Tutaki also said that Mary Tutaki's friend, Ms Topine, had not died, as she had told Ms Wake. She said that Mary Tutaki had not mentioned altering her will in this respect.


In a second affidavit sworn on 18 January 2011, Nancy Tutaki said that she learned on Wednesday 5 August 2009 that Mary Tutaki was in hospital. She spoke with Mary Tutaki...

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