ESTATE OF MADDOX HC AK CIV 2009-404-8025

ESTATE OF MADDOX HC AK CIV 2009-404-8025

Although the attesting witnesses failed to state in the will that they were present together when the testator signed as required by s11(4)(b) Wills Act 2007, their affidavits established the omission was an oversight and the document clearly expressed the testator's testamentary intentions; accordingly the Court validated the will under s14(1) and s14(2) and ordered costs to be paid by the estate.

Citation
openlaw-47304161_bd9e_4b25_bf1b_70ed308540f8.pdf
Parties
Deceased: Ernest Walter Maddox; Applicant and Nominated Trustee/executor: Peter Andrew
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 December 2009
Procedural Posture
Probate/will Validation / Application for Declaration of Validity of Will and Costs Order
Outcome
Will declared valid; costs of the application to be met by the deceased's estate
Legal Topics
Will Formalities, Validation Under Wills Act 2007, Witnessing Requirements S11(4)(b), Court Validation S14(1) (2)
Wills and Estates Probate Law Succession Law Will Formalities Validation Under Wills Act 2007 Witnessing Requirements S11(4)(b) Court Validation S14(1) (2)

Case Brief

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Parties

Ernest Walter Maddox

Deceased

Peter Andrew

Applicant and Nominated Trustee/executor

Procedural Posture

Probate/will Validation / Application for Declaration of Validity of Will and Costs Order

Legal Issues

  1. 1 Whether omission to state witnesses were present together rendered the will invalid under s11(4)(b) Wills Act 2007
  2. 2 Whether the Court should validate the will under s14(1) given evidence of testamentary intention
  3. 3 Whether the omission was an oversight or fatal defect

Ratio Decidendi

Although the attesting witnesses failed to state in the will that they were present together when the testator signed as required by s11(4)(b) Wills Act 2007, their affidavits established the omission was an oversight and the document clearly expressed the testator's testamentary intentions; accordingly the Court validated the will under s14(1) and s14(2) and ordered costs to be paid by the estate.

Court Disposition

Will declared valid; costs of the application to be met by the deceased's estate

Orders

  • Order declaring the will of Ernest Walter Maddox dated 14 August 2008 to be valid
  • Order directing the costs of this application to be paid from the deceased's estate