Re WHEELER [2021] NZHC 3437

Re WHEELER [2021] NZHC 3437

The December 5 2020 document satisfied the statutory prerequisites of s14 (it appeared to be a testamentary document, did not comply with s11 formalities, and was created in New Zealand); contemporaneous evidence supported that it reflected the deceased's testamentary intentions and affected beneficiaries had legal advice and consented to dispense with service, therefore the Court validated the document as a codicil and ordered it to be read as a new clause 4B with clause 4A revoked.

Citation
[2021] NZHC 3437
Parties
Applicant/executrix: Nancy Jane Wheeler; Deceased: Judith Ann Souster; Beneficiary: Charles Ross Souster; Beneficiary: Deane Harlen Trethewey; Beneficiary: Lara Natalie Souster
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 December 2021
Procedural Posture
Application Under S14 Wills Act 2007 to Validate a Testamentary Document (codicil) / Hearing on the Papers; Judgment on a Without‑notice Application
Outcome
Application granted; December 5 2020 document validated as a codicil and read as a new clause 4B; clause 4A revoked; proceeding dealt with without notice
Legal Topics
Validation of Will/codicil, Dispensation of Service, Probate
Wills and Succession Civil Procedure Validation of Will/codicil Dispensation of Service Probate

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Parties

Nancy Jane Wheeler

Applicant/executrix

Judith Ann Souster

Deceased

Charles Ross Souster

Beneficiary

Deane Harlen Trethewey

Beneficiary

Lara Natalie Souster

Beneficiary

Procedural Posture

Application Under S14 Wills Act 2007 to Validate a Testamentary Document (codicil) / Hearing on the Papers; Judgment on a Without‑notice Application

Legal Issues

  1. 1 Whether the December 5 2020 document is a testamentary document/codicil
  2. 2 Whether the document, non‑compliant with s11 formalities, can be validated under s14
  3. 3 Whether the document manifested the deceased's testamentary intention

Ratio Decidendi

The December 5 2020 document satisfied the statutory prerequisites of s14 (it appeared to be a testamentary document, did not comply with s11 formalities, and was created in New Zealand); contemporaneous evidence supported that it reflected the deceased's testamentary intentions and affected beneficiaries had legal advice and consented to dispense with service, therefore the Court validated the document as a codicil and ordered it to be read as a new clause 4B with clause 4A revoked.

Court Disposition

Application granted; December 5 2020 document validated as a codicil and read as a new clause 4B; clause 4A revoked; proceeding dealt with without notice

Orders

  • Proceeding to be dealt with on a without notice basis
  • Declare the document dated 5 December 2020 to be a valid codicil to the probated will of Judith Anne Souster, deceased