RE OSBORNE (DECEASED) HC NAP CIV-2012-441-286

RE OSBORNE (DECEASED) HC NAP CIV-2012-441-286

The draft will was declared valid because admissible evidence established that the deceased clearly expressed testamentary intentions to the solicitor on 14 March 2012 and the only reason it remained unsigned was the deceased's medical deterioration; affected persons were identified and consents obtained, so validation under s 14 was appropriate.

Citation
openlaw-ea0987c0_6de6_46d9_bf4b_e497426b4334.pdf
Parties
Deceased: Graeme Malcolm Osborne; Applicant/solicitor: David Hugh McDonald; Beneficiary/son: Kyle Osborne; Beneficiary/daughter: Kelly Osborne; Deceased's Partner: Julie James; Executor Under Previous Will: Mr Hancock; Executor Under Previous Will: Mrs Duffell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 July 2012
Procedural Posture
Probate Validation of Informal Will Under S 14 Wills Act 2007 / Without‑notice Application for Declaration of Validity/final Judgment
Outcome
Order declaring the unsigned draft document valid as the deceased's last will and testament
Legal Topics
Validation of Informal Will, S 14 Wills Act 2007, Testamentary Intention, Without‑notice Procedure, Service and Notice
Wills and Estates Probate Trusts Family Law Validation of Informal Will S 14 Wills Act 2007 Testamentary Intention Without‑notice Procedure +1 more

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Parties

Graeme Malcolm Osborne

Deceased

David Hugh McDonald

Applicant/solicitor

Kyle Osborne

Beneficiary/son

Kelly Osborne

Beneficiary/daughter

Julie James

Deceased's Partner

Mr Hancock

Executor Under Previous Will

Mrs Duffell

Executor Under Previous Will

Procedural Posture

Probate Validation of Informal Will Under S 14 Wills Act 2007 / Without‑notice Application for Declaration of Validity/final Judgment

Legal Issues

  1. 1 Whether the unsigned draft document expressed the deceased's testamentary intentions within s 14 Wills Act 2007
  2. 2 Whether the matter could properly be heard without formal notice to affected persons under High Court Rules r 7.46(3)(e)
  3. 3 Whether the deceased had capacity to form testamentary intentions when instructions were given

Ratio Decidendi

The draft will was declared valid because admissible evidence established that the deceased clearly expressed testamentary intentions to the solicitor on 14 March 2012 and the only reason it remained unsigned was the deceased's medical deterioration; affected persons were identified and consents obtained, so validation under s 14 was appropriate.

Court Disposition

Order declaring the unsigned draft document valid as the deceased's last will and testament

Orders

  • Declare valid, as the last will of the deceased, the document annexed as exhibit A to the affidavit of David Hugh McDonald sworn 4 May 2012