Is your will in draft form?  High Court refuses to exercise its discretionary power to validate a draft will notwithstanding beneficiaries’ consent

The High Court’s recent decision in Re: An application to validate the will of Olive Ruby Piper [2021] NZHC 534 serves as a valuable reminder to make sure that your estate planning documents are up to date and finalised.

In the Olive Ruby Piper case, the Court refused an application by the Public Trust to exercise its discretion to declare Ms Piper’s otherwise invalid will to be valid.  The Court made this ruling despite the fact that the beneficiaries under Ms Piper’s previous will gave their written consent to the Public Trust’s application.


Ms Piper’s last will was signed on 7 March 2011 (Old Will). In her Old Will, the Public Trust was appointed as both executor and trustee. It provided that Ms Piper’s estate was to be distributed as follows:

  • $50,000 to each of her three nephews;
  • the residue (what is left over) to be divided in equal shares between her five siblings.

On 6 March 2020, Ms Piper contacted the Public Trust to arrange an appointment to update her will.  The Public Trust scheduled a telephone consultation with her on 23 March 2020 accordingly.

On 18 March 2020, Ms Piper sent the Public Trust a list of prospective beneficiaries she wanted to include in her will.  Like her Old Will, the list named her three nephews and her five siblings as beneficiaries. It did not specify however, what share of her estate each beneficiary was to receive.

At the scheduled telephone consultation on 23 March 2020, Ms Piper told the Public Trust that she was close to her three nephews, and that she wanted each of them and her five siblings to receive an equal share of her residuary estate.  Handwritten notes were taken from Ms Piper’s consultation but were ultimately destroyed.  No copies were retained.

The Public Trust prepared Ms Piper’s draft will on 30 March 2020 and emailed it to her on 22 April 2020 (Draft Will).  Contrasting significantly from the Old Will, the Draft Will provided that Ms Piper’s $1.7 million estate was to be distributed as follows:

  • $287,500 to each of her three nephews (as opposed to $50,000 each under the Old Will); and
  • $287,500 to each of her siblings (as opposed to a one fifth share of the residue each (approximately $430,000 each) under the Old Will).

In The Public Trust’s email to Ms Piper, she was asked to review the Draft Will and confirm it may be finalised and sent to her for signing.  Ms Piper never responded to the Public Trust’s email. The Public Trust likewise did not follow up Ms Piper for a response.  She passed away on 3 July 2020 without signing the Draft Will.

The Public Trust filed an application to the Court seeking an order declaring that the Draft Will be validated.  Ms Piper’s three nephews and each of her siblings provided written consent to the application. 

Court’s decision 

The Court was required to determine whether the Old Will expressed Ms Piper’s testamentary intentions on the balance of probabilities. It was not persuaded for the following reasons:

  • There was a significant time lapse between Ms Piper giving her will instructions (23 March 2020), sending the draft to Ms Piper for her consideration (22 April 2020), and Ms Piper’s death (3 July 2020).
  • The handwritten notes recording her instructions at the meeting on 23 March 2020 had been destroyed and were not recoverable.
  • Ms Piper never confirmed that the Draft Will accurately recorded her testamentary intentions. She may have changed her mind about the distribution of her estate, and it was possible she may have changed her mind about making a new will entirely.
  • It is unlikely Ms Piper would have overlooked the need to sign a new will if that had been her intention.
  • The fact Ms Piper did not respond to the Public Trust’s email of 22 April 2020 suggested to the Court that Ms Piper did not want to proceed with the Draft Will.

The Court commented that it may have been inclined to validate the Draft Will, if:

  • Ms Piper had replied to the Public Trust and confirmed that the Draft Will accurately recorded her testamentary intentions.
  • If there had been a much shorter time lapse between Ms Piper giving her instructions, the email enclosing the Draft Will being sent to her, and Ms Piper’s death.

Key Point

The Olive Ruby Piper case demonstrates the importance of clearly communicating one’s testamentary intentions, and the significance of ensuring estate planning documents are finalised and correctly executed.  While the Court has a discretionary power to validate an otherwise invalid will, it will exercise a great level of care to ensure the document before it expresses the deceased person’s testamentary intentions, irrespective of whether the ultimate beneficiaries of the deceased’s estate have given their prior written consent.

If you have any questions about this article, please get in touch with our Private Wealth Team or your usual contact at Hesketh Henry.


Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.

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