RE: CROSS [2023] NZHC 2497

RE: CROSS [2023] NZHC 2497

The Court was satisfied on the balance of probabilities that the handwritten amendments dated 31 July 2021 were in the deceased's handwriting, signed and dated, were consistent with contemporaneous statements to family and friends expressing an intention to change the will, and that the delay before death was reasonably explicable; accordingly the document expresses the deceased's testamentary intentions and the Court declares it to be the valid last will under s14 Wills Act 2007.

Citation
[2023] NZHC 2497
Parties
Applicant; Executor: Gary Francis Cross; Opponent: Daniel Cross; Deceased: Margaret Evelyn Cross
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 September 2023
Procedural Posture
Application for Declaration of Will Validity Under Wills Act 2007 S14 / Hearing on Application for Declaration; Costs Reserved for Memorandum
Outcome
Application granted; declaration that handwritten amendments dated 31 July 2021 constitute the deceased's last will and are valid for probate purposes
Legal Topics
Declaration of Validity of Will, Section 14 Wills Act 2007, Testamentary Intention, Execution and Witnessing, Delay Between Handwritten Amendment and Death
Wills and Estates Succession Probate High Court Procedure Declaration of Validity of Will Section 14 Wills Act 2007 Testamentary Intention Execution and Witnessing +1 more

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Parties

Gary Francis Cross

Applicant; Executor

Daniel Cross

Opponent

Margaret Evelyn Cross

Deceased

Procedural Posture

Application for Declaration of Will Validity Under Wills Act 2007 S14 / Hearing on Application for Declaration; Costs Reserved for Memorandum

Legal Issues

  1. 1 Whether the handwritten amendments dated 31 July 2021 express the deceased's testamentary intentions such that the High Court may declare the document a valid will under s14 of the Wills Act 2007
  2. 2 Whether the delay between the handwritten amendments and the deceased's death undermines the reliability of those testamentary intentions
  3. 3 Whether any adverse conduct by the opponent justifies wasted costs

Ratio Decidendi

The Court was satisfied on the balance of probabilities that the handwritten amendments dated 31 July 2021 were in the deceased's handwriting, signed and dated, were consistent with contemporaneous statements to family and friends expressing an intention to change the will, and that the delay before death was reasonably explicable; accordingly the document expresses the deceased's testamentary intentions and the Court declares it to be the valid last will under s14 Wills Act 2007.

Court Disposition

Application granted; declaration that handwritten amendments dated 31 July 2021 constitute the deceased's last will and are valid for probate purposes

Orders

  • Declare the handwritten amendments dated 31 July 2021 on the prior will dated 21 August 2007 to be the valid last will of Margaret Evelyn Cross
  • Costs reserved; parties to file memoranda on costs with submissions addressing a 2B scale and claimed wasted costs; tentative view costs to be paid from estate on a 2B basis