RE ELLICOCK ESTATE [2014] NZHC 781

RE ELLICOCK ESTATE [2014] NZHC 781

The court validated the document because credible witness and solicitor evidence established that the deceased had signed the document intending it to operate as her will, the apparent unstapling/re-stapling and loss of a staple did not undermine the integrity or completeness of the pages, and known interested parties consented, so the document expressed the deceased's testamentary intentions despite the imperfect witnessing formalities.

Citation
[2014] NZHC 781
Parties
Applicant; Executor and Trustee: Yardena Bolten-Pedersen; Deceased: Sylvia Dawn Ellicock (formerly Sylvia Dawn Bolten Pedersen); Widower and Interested Party: William Terence Ellicock
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 April 2014
Procedural Posture
Probate/validation of Will / Application for Order Validating Will (on the Papers)
Outcome
Order declaring the document dated 11 February 2012 to be the valid will of Sylvia Dawn Ellicock
Legal Topics
Validation of Will, Execution and Witnessing Formalities, Document Integrity/plight, Without Notice Application, Testamentary Intention
Succession Probate Civil Procedure Evidence Validation of Will Execution and Witnessing Formalities Document Integrity/plight Without Notice Application +1 more

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Parties

Yardena Bolten-Pedersen

Applicant; Executor and Trustee

Sylvia Dawn Ellicock (formerly Sylvia Dawn Bolten Pedersen)

Deceased

William Terence Ellicock

Widower and Interested Party

Procedural Posture

Probate/validation of Will / Application for Order Validating Will (on the Papers)

Legal Issues

  1. 1 Whether the will is valid although the testator signed separately before each witness rather than in the simultaneous presence of two witnesses
  2. 2 Whether unstapling/re-stapling and the loss of a staple undermined the integrity of the will or pages
  3. 3 Whether the validation application could be heard without formal notice to all potential interested parties

Ratio Decidendi

The court validated the document because credible witness and solicitor evidence established that the deceased had signed the document intending it to operate as her will, the apparent unstapling/re-stapling and loss of a staple did not undermine the integrity or completeness of the pages, and known interested parties consented, so the document expressed the deceased's testamentary intentions despite the imperfect witnessing formalities.

Court Disposition

Order declaring the document dated 11 February 2012 to be the valid will of Sylvia Dawn Ellicock

Orders

  • The document dated 11 February 2012 bearing two signatures of S D Ellicock with the signatures of witnesses Dale V Thurston and Pat Gilling, and produced by Yardena Bolten-Pedersen, does express the testamentary intentions of the deceased Sylvia Dawn Ellicock and is declared a valid will.