RE FRASER (DECEASED) HC NAP CIV-2011-441-700

RE FRASER (DECEASED) HC NAP CIV-2011-441-700

On the evidence the draft will drafted in accordance with the deceased's instructions of 27 April 2011 reflected his testamentary intentions at the time of death and the absence of signature was due to oversight or illness rather than a change of mind; accordingly the draft is valid as the deceased's will under s 14 Wills Act 2007 and the without‑notice hearing was justified because affected beneficiaries consented and justice favored expedition.

Citation
openlaw-0b4d2041_224a_4629_92fa_c2cf804a4656.pdf
Parties
Deceased: Warren Edward Fraser; Applicant/solicitor: D H McDonald
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 December 2011
Procedural Posture
Application Under S 14 Wills Act 2007 to Declare a Draft Will Valid / Interlocutory Without Notice Application (hearing and Declaration)
Outcome
Draft will (exhibit A to McDonald affidavit sworn 17 October 2011) declared valid as the last will of Warren Edward Fraser pursuant to s 14 Wills Act 2007; probate application to be considered by the Registrar
Legal Topics
Validity of Will, Unsigned Draft Will, Section 14 Wills Act 2007, Interlocutory Without Notice Application
Wills and Succession Probate Validity of Will Unsigned Draft Will Section 14 Wills Act 2007 Interlocutory Without Notice Application

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 5 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Warren Edward Fraser

Deceased

D H McDonald

Applicant/solicitor

Procedural Posture

Application Under S 14 Wills Act 2007 to Declare a Draft Will Valid / Interlocutory Without Notice Application (hearing and Declaration)

Legal Issues

  1. 1 Whether an unsigned draft will can be declared valid as the deceased's last will under s 14 Wills Act 2007
  2. 2 Whether the application could properly be heard without notice under High Court Rules r 7.46
  3. 3 Whether the absence of signature indicated a change of mind or mere oversight/illness

Ratio Decidendi

On the evidence the draft will drafted in accordance with the deceased's instructions of 27 April 2011 reflected his testamentary intentions at the time of death and the absence of signature was due to oversight or illness rather than a change of mind; accordingly the draft is valid as the deceased's will under s 14 Wills Act 2007 and the without‑notice hearing was justified because affected beneficiaries consented and justice favored expedition.

Court Disposition

Draft will (exhibit A to McDonald affidavit sworn 17 October 2011) declared valid as the last will of Warren Edward Fraser pursuant to s 14 Wills Act 2007; probate application to be considered by the Registrar

Orders

  • Declare exhibit A (draft will attached to McDonald affidavit sworn 17 October 2011) valid as the last will of Warren Edward Fraser pursuant to s 14 Wills Act 2007
  • Order that the application be heard and determined without notice