Re Smith (deceased) [2013] NZHC 2429

Re Smith (deceased) [2013] NZHC 2429

The 2012 document was found to accurately record Mr Smith's testamentary intentions as given to his solicitor on 20 December 2012, and the court was satisfied he would have signed it but for his death; accordingly the document is declared valid as his will under s 14, and the application could be heard without notice because affected parties were not sufficiently identifiable.

Citation
[2013] NZHC 2429
Parties
Applicant (solicitor/affiant): Peter Charles Dalziel; Deceased: Arnold Meredith Smith; Named Beneficiary: Lorraine McGillen; Named Beneficiary: Temuka RSA; Affiant/witness and Former Executor: Peter Hogg
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 September 2013
Procedural Posture
Application Under S 14 Wills Act 2007 / Without‑notice Interlocutory Application Determined on the Papers
Outcome
Application granted
Legal Topics
Validation of Informal Will, Section 14 Wills Act 2007, Testamentary Intention, Without Notice Proceedings
Wills and Estates Succession Civil Procedure Validation of Informal Will Section 14 Wills Act 2007 Testamentary Intention Without Notice Proceedings

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Parties

Peter Charles Dalziel

Applicant (solicitor/affiant)

Arnold Meredith Smith

Deceased

Lorraine McGillen

Named Beneficiary

Temuka RSA

Named Beneficiary

Peter Hogg

Affiant/witness and Former Executor

Procedural Posture

Application Under S 14 Wills Act 2007 / Without‑notice Interlocutory Application Determined on the Papers

Legal Issues

  1. 1 Whether an undated and unsigned document can be declared a valid will under s 14 Wills Act 2007
  2. 2 Whether interested parties required notice or the application can be determined without notice under High Court Rules r 7.46
  3. 3 Whether the 2012 document accurately records the deceased's testamentary intentions and would have been signed but for his death

Ratio Decidendi

The 2012 document was found to accurately record Mr Smith's testamentary intentions as given to his solicitor on 20 December 2012, and the court was satisfied he would have signed it but for his death; accordingly the document is declared valid as his will under s 14, and the application could be heard without notice because affected parties were not sufficiently identifiable.

Court Disposition

Application granted

Orders

  • The document attached as exhibit B to the affidavit of Peter Charles Dalziel sworn 3 May 2013 is declared valid as the will of Arnold Meredith Smith
  • The application is determined without notice under High Court Rules r 7.46 on the grounds that affected parties are not sufficiently identifiable and the interests of justice require determination without serving notice