Re Estate of Barker [2018] NZHC 2955

Re Estate of Barker [2018] NZHC 2955

The Court was satisfied the Amended 2004 Will and the August 2008 envelopes, taken together, expressed the deceased's testamentary intentions, that the amendments and envelopes were in the deceased's handwriting and reflected intentions falling within matters appropriate for a will, and that on the facts (including unanimous beneficiary consent) validation under s14 of the Wills Act 2007 was appropriate; accordingly the documents were declared the deceased's valid will.

Citation
[2018] NZHC 2955
Parties
Applicant/executor: Michael Clive Barker; Deceased: Clive Robert Newton Barker; Beneficiary: Rodney Taylor Barker; Beneficiary: Pamela Shirley Barker
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 November 2018
Procedural Posture
Application Under Section 14 Wills Act 2007 (will Validation) / Judgment on the Papers (final Determination)
Outcome
Court declared the Amended 2004 Will dated 17 July 2004 with amendments and the August 2008 envelopes to be the valid will of the deceased pursuant to s14 Wills Act 2007
Legal Topics
Will Validation, Witnessing Requirements, Testamentary Intentions, Executor Remuneration
Wills and Succession Estate Administration Probate Will Validation Witnessing Requirements Testamentary Intentions Executor Remuneration

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Parties

Michael Clive Barker

Applicant/executor

Clive Robert Newton Barker

Deceased

Rodney Taylor Barker

Beneficiary

Pamela Shirley Barker

Beneficiary

Procedural Posture

Application Under Section 14 Wills Act 2007 (will Validation) / Judgment on the Papers (final Determination)

Legal Issues

  1. 1 Whether documents that do not comply with s11 of the Wills Act 2007 nevertheless express the deceased's testamentary intentions and can be validated under s14
  2. 2 Whether amendments to a witnessed will and unswitnessed ancillary documents (envelopes) constitute testamentary instruments capable of validation
  3. 3 Whether the Court should exercise its discretion to validate given the circumstances and unanimous beneficiary consent

Ratio Decidendi

The Court was satisfied the Amended 2004 Will and the August 2008 envelopes, taken together, expressed the deceased's testamentary intentions, that the amendments and envelopes were in the deceased's handwriting and reflected intentions falling within matters appropriate for a will, and that on the facts (including unanimous beneficiary consent) validation under s14 of the Wills Act 2007 was appropriate; accordingly the documents were declared the deceased's valid will.

Court Disposition

Court declared the Amended 2004 Will dated 17 July 2004 with amendments and the August 2008 envelopes to be the valid will of the deceased pursuant to s14 Wills Act 2007

Orders

  • Declare the Amended 2004 Will to be the deceased's valid will pursuant to s14 Wills Act 2007
  • Declare the August 2008 envelopes to be part of the deceased's valid testamentary documentation pursuant to s14 Wills Act 2007