MACNEIL, DECEASED HC TIM CIV-2008-476-612

MACNEIL, DECEASED HC TIM CIV-2008-476-612

The document dated 20 January 2008 satisfied the statutory definition of a will (s8) and expressed clear testamentary intentions; although it did not comply with the witnessing formalities of s11, s14(2) empowered the Court to validate it, and given consent from the affected next of kin the order could properly be made without notice, so the first page was declared the deceased's last will.

Citation
openlaw-9e835003_b014_4848_9819_0c0ca966fbbf.pdf
Parties
Applicant (de Facto Partner): M K Cessford; Deceased: Therese MacNeil; Consenting Next of Kin (mother): M I Macneil
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 September 2009
Procedural Posture
Will Validation (s14 Wills Act 2007) / Judgment on the Papers; Without Notice Application
Outcome
First page of the document dated 20 January 2008 declared valid as the last will of Therese MacNeil.
Legal Topics
Informal Wills, Statutory Validation Under S14, Testamentary Intention, Witnessing Requirements, Jurisdictional Nexus (document Made Outside New Zealand)
Succession Wills Probate Informal Wills Statutory Validation Under S14 Testamentary Intention Witnessing Requirements Jurisdictional Nexus (document Made Outside New Zealand)

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Parties

M K Cessford

Applicant (de Facto Partner)

Therese MacNeil

Deceased

M I Macneil

Consenting Next of Kin (mother)

Procedural Posture

Will Validation (s14 Wills Act 2007) / Judgment on the Papers; Without Notice Application

Legal Issues

  1. 1 Whether the document dated 20 January 2008 constitutes a will within s8(1) of the Wills Act 2007
  2. 2 Whether the document fails the formal witnessing requirements of s11
  3. 3 Whether the document was made in or out of New Zealand

Ratio Decidendi

The document dated 20 January 2008 satisfied the statutory definition of a will (s8) and expressed clear testamentary intentions; although it did not comply with the witnessing formalities of s11, s14(2) empowered the Court to validate it, and given consent from the affected next of kin the order could properly be made without notice, so the first page was declared the deceased's last will.

Court Disposition

First page of the document dated 20 January 2008 declared valid as the last will of Therese MacNeil.

Orders

  • Declare the first page of the document dated 20 January 2008 (annexed as document B to the affidavit of Michael Keith Cessford sworn 2 December 2008) valid as the last will of Therese MacNeil.
  • Application determined without notice pursuant to High Court Rules r7.46 given consent of the affected next of kin.