ENDEAN v SMITH [2020] NZHC 2365

ENDEAN v SMITH [2020] NZHC 2365

The caveator failed to establish sufficient grounds to require a full inquiry or probate in solemn form because the 2 August 2019 will was executed when the testator had testamentary capacity, there was no credible evidence of undue influence affecting that will, and validation of the unsigned codicil under s14 Wills Act is a separate proceeding that does not justify delaying grant of probate in common form.

Citation
[2020] NZHC 2365
Parties
Applicant/respondent: William Arthur Endean; Caveator/applicant: Jocelyn Lois Smith; Deceased: George Clifford Smith
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 September 2020
Procedural Posture
Probate and Estate Administration / Return of Order Nisi on Caveat Under Ss 60–61 Administration Act (application for Probate in Common Form Contested)
Outcome
Caveat discharged; order nisi made absolute; grant of probate in common form to William Arthur Endean
Legal Topics
Probate, Caveat Against Grant, Order Nisi, Validation of Unexecuted Codicil (wills Act S14), Undue Influence, Solemn Form of Probate, Recall of Grant
Succession Wills and Probate Estate Administration Trusts Civil Procedure Probate Caveat Against Grant Order Nisi +4 more

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Parties

William Arthur Endean

Applicant/respondent

Jocelyn Lois Smith

Caveator/applicant

George Clifford Smith

Deceased

Procedural Posture

Probate and Estate Administration / Return of Order Nisi on Caveat Under Ss 60–61 Administration Act (application for Probate in Common Form Contested)

Legal Issues

  1. 1 Whether the caveator raised sufficient grounds to require probate be applied for in solemn form
  2. 2 Whether the unsigned codicil is a valid testamentary disposition or should be validated under s14 Wills Act 2007
  3. 3 Whether the will of 2 August 2019 was procured by undue influence

Ratio Decidendi

The caveator failed to establish sufficient grounds to require a full inquiry or probate in solemn form because the 2 August 2019 will was executed when the testator had testamentary capacity, there was no credible evidence of undue influence affecting that will, and validation of the unsigned codicil under s14 Wills Act is a separate proceeding that does not justify delaying grant of probate in common form.

Court Disposition

Caveat discharged; order nisi made absolute; grant of probate in common form to William Arthur Endean

Orders

  • Caveat lodged by Jocelyn Lois Smith discharged
  • Order nisi in relation to the will dated 2 August 2019 made absolute