GRIFFIN HC AK CIV-2010-404-006302

GRIFFIN HC AK CIV-2010-404-006302

The Court found uncontested affidavit evidence established that the deceased signed the will in the presence of two witnesses who attested in each other's presence, satisfying the formal execution requirements; because statutory relief under s14 was unavailable to wills made before 1 November 2007 but the testator died after that date, the Court granted leave under High Court Rules r19.5 to proceed by originating application in solemn form, declared the 5 March 2000 will validly executed and attested, refused to exercise s31 correction (not a clerical error case), and granted probate to Patrick James Griffin.

Citation
openlaw-8ae07d69_5609_4a5b_a119_69a0d8b3c561.pdf
Parties
Applicant; Named Executor and Sole Beneficiary: Patrick James Griffin; Deceased; Testator: Frans Rudolf Hazenberg; Former Beneficiary of Prior Will; Consenting Interested Party: Ronald Dijkmans; Attesting Witness (affidavit Filed): C J Reintjes; Attesting Witness (deceased): P Vleesch du Bois
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 March 2011
Procedural Posture
Grant of Probate / Will Validity / Determined on the Papers; Judgment on Originating Application for Probate in Solemn Form
Outcome
Will declared valid; grant of probate in solemn form to Patrick James Griffin; leave granted to proceed by originating application; s31 correction not applied.
Legal Topics
Validity of Will, Attestation Requirements, Solemn Form Probate, Wills Act 2007 Interpretation, High Court Corrective and Procedural Powers
Wills and Estates Succession Law Civil Procedure Validity of Will Attestation Requirements Solemn Form Probate Wills Act 2007 Interpretation High Court Corrective and Procedural Powers

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Parties

Patrick James Griffin

Applicant; Named Executor and Sole Beneficiary

Frans Rudolf Hazenberg

Deceased; Testator

Ronald Dijkmans

Former Beneficiary of Prior Will; Consenting Interested Party

C J Reintjes

Attesting Witness (affidavit Filed)

P Vleesch du Bois

Attesting Witness (deceased)

Procedural Posture

Grant of Probate / Will Validity / Determined on the Papers; Judgment on Originating Application for Probate in Solemn Form

Legal Issues

  1. 1 Whether the 5 March 2000 will was validly executed despite errors in the printed attestation clause
  2. 2 Whether statutory relief under s14 Wills Act 2007 was available given s40(2)(k) and s39 and whether s9 Wills Act 1837 could be relied on
  3. 3 Whether the High Court should grant probate in solemn form by originating application under r19.5 of the High Court Rules

Ratio Decidendi

The Court found uncontested affidavit evidence established that the deceased signed the will in the presence of two witnesses who attested in each other's presence, satisfying the formal execution requirements; because statutory relief under s14 was unavailable to wills made before 1 November 2007 but the testator died after that date, the Court granted leave under High Court Rules r19.5 to proceed by originating application in solemn form, declared the 5 March 2000 will validly executed and attested, refused to exercise s31 correction (not a clerical error case), and granted probate to Patrick James Griffin.

Court Disposition

Will declared valid; grant of probate in solemn form to Patrick James Griffin; leave granted to proceed by originating application; s31 correction not applied.

Orders

  • Leave granted under r19.5 of the High Court Rules to seek a grant of probate in solemn form by way of originating application
  • Declaration that the deceased's will dated 5 March 2000 is a validly executed and attested will