DAVID JOHN HUGHES AND MICHAEL JOHN FOLEY HC AK CIV-2011-404-3742

DAVID JOHN HUGHES AND MICHAEL JOHN FOLEY HC AK CIV-2011-404-3742

The Court was satisfied on the balance of probabilities that the unsigned draft will accurately reflected the deceased's testamentary intentions and that she would have executed it but for her sudden death; consequently, under s 14 the draft will is declared the valid last will.

Citation
openlaw-15ad39a8_f506_401e_9700_ee747f992ed5.pdf
Parties
Applicant (executor): David John Hughes; Applicant (executor): Michael John Foley; Deceased: Julia Diane Brundall
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 July 2011
Procedural Posture
Application for Declaration Under S 14 Wills Act 2007 (validation of Unexecuted Draft Will) / Originating Application on the Papers; Judgment Granting Declaratory Relief
Outcome
Application granted: leave to proceed by originating application and declaration that the draft will is the valid last will of the deceased.
Legal Topics
Validation of Unexecuted Will, Section 14 Wills Act 2007, Testamentary Intention, Originating Application Under High Court Rule 19.5
Wills and Estates Succession Civil Procedure Validation of Unexecuted Will Section 14 Wills Act 2007 Testamentary Intention Originating Application Under High Court Rule 19.5

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Parties

David John Hughes

Applicant (executor)

Michael John Foley

Applicant (executor)

Julia Diane Brundall

Deceased

Procedural Posture

Application for Declaration Under S 14 Wills Act 2007 (validation of Unexecuted Draft Will) / Originating Application on the Papers; Judgment Granting Declaratory Relief

Legal Issues

  1. 1 Whether the Court may declare an unsigned draft will valid under s 14 Wills Act 2007
  2. 2 Whether the evidence establishes the deceased's testamentary intention
  3. 3 Whether the originating application procedure was appropriate under High Court Rule 19.5

Ratio Decidendi

The Court was satisfied on the balance of probabilities that the unsigned draft will accurately reflected the deceased's testamentary intentions and that she would have executed it but for her sudden death; consequently, under s 14 the draft will is declared the valid last will.

Court Disposition

Application granted: leave to proceed by originating application and declaration that the draft will is the valid last will of the deceased.

Orders

  • Leave granted to applicants to bring and pursue this proceeding by originating application pursuant to High Court Rule 19.5.
  • The draft will appended as Exhibit E to the affidavit of D J Hughes dated 9 June 2011 is declared to be the valid last will of Julia Diane Brundall.