SUTCLIFFE v SHANNON [2016] NZHC 1809

SUTCLIFFE v SHANNON [2016] NZHC 1809

The unsigned draft will met the s 14 requirements: it appeared to be a will, was created in New Zealand, did not comply with s 11 execution formalities, and on cogent evidence (solicitor's notes and correspondence) reflected the deceased's testamentary intentions; accordingly the Court declared the document to be the valid last will and testament and made costs orders.

Citation
[2016] NZHC 1809
Parties
Plaintiff (intended Trustee and Executor): Terence Michael Sutcliffe; Plaintiff (intended Trustee and Executor): Braden Kayne Matson; Defendant (trustee and Executor of the Last Will Dated 15 September 1975): Paul Justin Shannon; Deceased (testatrix): Elise Margaret Richards
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 August 2016
Procedural Posture
Application Under Section 14 of the Wills Act 2007 to Validate an Unsigned Will / Judgment on Application (on the Papers)
Outcome
Unsigned draft will declared valid as the Last Will and Testament of Elise Margaret Richards under section 14 of the Wills Act 2007; costs to be met from the estate.
Legal Topics
Validation of Unsigned Will, Testamentary Intention, Section 14 Wills Act 2007, Formalities of Execution
Wills and Succession Probate Estate Litigation Validation of Unsigned Will Testamentary Intention Section 14 Wills Act 2007 Formalities of Execution

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Parties

Terence Michael Sutcliffe

Plaintiff (intended Trustee and Executor)

Braden Kayne Matson

Plaintiff (intended Trustee and Executor)

Paul Justin Shannon

Defendant (trustee and Executor of the Last Will Dated 15 September 1975)

Elise Margaret Richards

Deceased (testatrix)

Procedural Posture

Application Under Section 14 of the Wills Act 2007 to Validate an Unsigned Will / Judgment on Application (on the Papers)

Legal Issues

  1. 1 Whether the unsigned document is a will for the purposes of s 14 Wills Act 2007
  2. 2 Whether the document reflects the deceased's testamentary intentions on the balance of probabilities
  3. 3 Whether the document came into existence in New Zealand

Ratio Decidendi

The unsigned draft will met the s 14 requirements: it appeared to be a will, was created in New Zealand, did not comply with s 11 execution formalities, and on cogent evidence (solicitor's notes and correspondence) reflected the deceased's testamentary intentions; accordingly the Court declared the document to be the valid last will and testament and made costs orders.

Court Disposition

Unsigned draft will declared valid as the Last Will and Testament of Elise Margaret Richards under section 14 of the Wills Act 2007; costs to be met from the estate.

Orders

  • The unsigned document annexed as exhibit DS3 to the affidavit of Mr Douglas John Sutcliffe dated 12 April 2016 is declared valid as the Last Will and Testament of Elise Margaret Richards.
  • The costs of and incidental to these proceedings are to be met from the Estate of the deceased.