HENDERSON & Ors V HENDERSON & Ors HC CHCH CIV-2012-409-002370

HENDERSON & Ors V HENDERSON & Ors HC CHCH CIV-2012-409-002370

The court found the circumstances existing when the Will was made (including a subsequent proposal during the overseas trip and the deceased's expressed intent to marry) demonstrated the Will was made in contemplation of marrying Helen Baker, therefore s18(3)(a)(ii) applied and the marriage did not revoke the Will; probate was granted to the named executors.

Citation
openlaw-cf155265_9316_45d6_a456_4bac82a0dc7b.pdf
Parties
Plaintiff / Executor: Helen Jean Henderson (named in the Will as Helen Jean Baker); Plaintiff / Executor: Melissa Jane Henderson; Plaintiff / Executor: Anna Louise Fox; Deceased: Andrew Bruce Henderson; First Defendants / Beneficiary (trust): Helen Jean Henderson and Anna Louise Fox (surviving trustees of the BHB Family Trust); Second Defendant / Beneficiary: Helen Jean Henderson (named in the Will as Helen Jean Baker) (Administrator of Christchurch); Third Defendants / Beneficiaries: James Henderson and Iera Henderson; Fourth Defendant / Beneficiary: Janet Lesley Makiv; Fifth Defendant / Beneficiary: Melissa Jane Henderson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 March 2013
Procedural Posture
Probate / Will Validity / Hearing and Judgment (application for Probate)
Outcome
Will of Andrew Bruce Henderson dated 24 August 2010 proved in solemn form; probate granted to the plaintiffs (named executors).
Legal Topics
Revocation of Will by Marriage, Contemplation of Marriage, Wills Act S18, Power of Appointment
Wills and Probate Trusts Succession/inheritance Revocation of Will by Marriage Contemplation of Marriage Wills Act S18 Power of Appointment

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Parties

Helen Jean Henderson (named in the Will as Helen Jean Baker)

Plaintiff / Executor

Melissa Jane Henderson

Plaintiff / Executor

Anna Louise Fox

Plaintiff / Executor

Andrew Bruce Henderson

Deceased

Helen Jean Henderson and Anna Louise Fox (surviving trustees of the BHB Family Trust)

First Defendants / Beneficiary (trust)

Helen Jean Henderson (named in the Will as Helen Jean Baker) (Administrator of Christchurch)

Second Defendant / Beneficiary

James Henderson and Iera Henderson

Third Defendants / Beneficiaries

Janet Lesley Makiv

Fourth Defendant / Beneficiary

Melissa Jane Henderson

Fifth Defendant / Beneficiary

Procedural Posture

Probate / Will Validity / Hearing and Judgment (application for Probate)

Legal Issues

  1. 1 Whether s18(3)(a)(ii) of the Wills Act applies so that the Will was not revoked by the will-maker's subsequent marriage
  2. 2 Whether the Will was made in contemplation of a particular marriage such that marriage does not revoke the Will

Ratio Decidendi

The court found the circumstances existing when the Will was made (including a subsequent proposal during the overseas trip and the deceased's expressed intent to marry) demonstrated the Will was made in contemplation of marrying Helen Baker, therefore s18(3)(a)(ii) applied and the marriage did not revoke the Will; probate was granted to the named executors.

Court Disposition

Will of Andrew Bruce Henderson dated 24 August 2010 proved in solemn form; probate granted to the plaintiffs (named executors).

Orders

  • Probate of the Will of Andrew Bruce Henderson dated 24 August 2010 granted to the plaintiffs Helen Jean Henderson, Melissa Jane Henderson and Anna Louise Fox.
  • Order dismissing service on Scott Henderson.