POTEZ AND HEMINGWAY [2017] NZHC 3296

POTEZ AND HEMINGWAY [2017] NZHC 3296

Although the document did not comply with s 11 (it was witnessed by only one person), the Court was satisfied on the evidence of the solicitor and the affidavits of the witness and the applicant that the document, prepared on the deceased's instructions and signed by him, expressed his testamentary intentions; accordingly the Court declared the document to be the valid will under s 14.

Citation
[2017] NZHC 3296
Parties
Applicant; Appointed Executor and Trustee: Rebecca Caroline Potez; Applicant; Appointed Executor and Trustee: Jeremy Dana Hemingway; Deceased; Subject of Estate: Timothy Darryl Hemingway
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 December 2017
Procedural Posture
Will Validation Under the Wills Act 2007 / Application for Declaration Under S 14 on the Papers (judgment)
Outcome
Order declaring the document dated 23 May 2017 to be the valid will of Timothy Darryl Hemingway
Legal Topics
Formal Validity of Wills, Section 14 Declaration, Execution and Witnessing Requirements
Wills and Succession Probate Formal Validity of Wills Section 14 Declaration Execution and Witnessing Requirements

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Parties

Rebecca Caroline Potez

Applicant; Appointed Executor and Trustee

Jeremy Dana Hemingway

Applicant; Appointed Executor and Trustee

Timothy Darryl Hemingway

Deceased; Subject of Estate

Procedural Posture

Will Validation Under the Wills Act 2007 / Application for Declaration Under S 14 on the Papers (judgment)

Legal Issues

  1. 1 Whether the document qualifies as a will under s 14 despite non-compliance with s 11
  2. 2 Whether the document expresses the deceased's testamentary intentions
  3. 3 Whether the High Court should exercise its discretion to declare the document valid

Ratio Decidendi

Although the document did not comply with s 11 (it was witnessed by only one person), the Court was satisfied on the evidence of the solicitor and the affidavits of the witness and the applicant that the document, prepared on the deceased's instructions and signed by him, expressed his testamentary intentions; accordingly the Court declared the document to be the valid will under s 14.

Court Disposition

Order declaring the document dated 23 May 2017 to be the valid will of Timothy Darryl Hemingway

Orders

  • Declare the document signed at Invercargill on 23 May 2017 to be the valid will and testament of the late Timothy Darryl Hemingway.