Re Estate of Margaret Anne Riwaka-Love [2023] NZHC 1088

Re Estate of Margaret Anne Riwaka-Love [2023] NZHC 1088

Probate was granted to the applicant alone because the co-executor failed to act or be engaged despite extensive efforts at service, the original will was lost after death, the photocopy reliably evidenced the deceased's testamentary intentions, and the statutory and procedural requirements under the Administration...

Source-derived case information.

Citation
[2023] NZHC 1088
Parties
Applicant / Named Executor / Grantee of Probate: Zara Taaikiwaiora Wills; Deceased: Margaret Anne Riwaka-Love (also known as Margaret Anne Riwaka and Margaret Anne Wills); Named Co Executor / Absent Executor / Interested Person: Nicholas Martin Riwaka
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 May 2023
Procedural Posture
Application for Grant of Probate Under the Administration Act 1969 and High Court Rules / Hearing and Judgment on Application for Probate and Declaration of Validity of Photocopy Will (order Nisi Issued; Service Attempted and Made)
Outcome
Probate granted to applicant Zara Taaikiwaiora Wills alone; photocopy of will declared valid
Legal Topics
Grant of Probate to Sole Executor, Lost Will and Probate of Photocopy, Declaration of Validity Under Wills Act S14, Service of Process Overseas and Order Nisi
Probate Wills Administration of Estates Civil Procedure Grant of Probate to Sole Executor Lost Will and Probate of Photocopy Declaration of Validity Under Wills Act S14 Service of Process Overseas and Order Nisi

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Parties

Zara Taaikiwaiora Wills

Applicant / Named Executor / Grantee of Probate

Margaret Anne Riwaka-Love (also known as Margaret Anne Riwaka and Margaret Anne Wills)

Deceased

Nicholas Martin Riwaka

Named Co Executor / Absent Executor / Interested Person

Procedural Posture

Application for Grant of Probate Under the Administration Act 1969 and High Court Rules / Hearing and Judgment on Application for Probate and Declaration of Validity of Photocopy Will (order Nisi Issued; Service Attempted and Made)

Legal Issues

  1. 1 Whether probate should be granted to one executor where the co-executor is absent and unresponsive
  2. 2 Whether a photocopy of a lost original will can be declared valid and treated as the will for probate purposes
  3. 3 Whether statutory requirements under the Administration Act 1969 and High Court Rules r27.4 have been met to grant probate without the co-executor's signature

Ratio Decidendi

Probate was granted to the applicant alone because the co-executor failed to act or be engaged despite extensive efforts at service, the original will was lost after death, the photocopy reliably evidenced the deceased's testamentary intentions, and the statutory and procedural requirements under the Administration Act and Wills Act were satisfied permitting a declaration of validity and the grant of probate to the sole applicant.

Court Disposition

Probate granted to applicant Zara Taaikiwaiora Wills alone; photocopy of will declared valid

Orders

  • Probate of the will of the deceased (being Exhibit A to the affidavit of Zara Taaikiwaiora Wills of 21 September 2022) is granted to Zara Taaikiwaiora Wills alone.
  • The photocopy of the will (Exhibit A) is declared to be the valid will of the deceased pursuant to Wills Act 2007 s14.