RE COTTRELL (DECEASED) HC WN CIV-2012-485-665

RE COTTRELL (DECEASED) HC WN CIV-2012-485-665

The Court will validate a non‑compliant will under s14 Wills Act 2007 where the evidence shows the document expresses the deceased's testamentary intention and persons who would be affected by a contrary order have had a proper opportunity to be heard (here they were aware and consented); given those facts the defective witnessing was remedied by the statutory power and the document was declared the last will.

Citation
openlaw-a0cce60d_ed05_4414_8c32_503cc71f2bf0.pdf
Parties
Deceased: Phillip Alexander Cottrell; Applicant: Applicant; Interested Parties: Parents of Phillip Alexander Cottrell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 May 2012
Procedural Posture
Application Under S 14 Wills Act 2007 / Without‑notice Application Determined on the Papers
Outcome
Order under s14 Wills Act 2007 declaring the document dated 13 June 2010 to be the last will of the deceased, Phillip Alexander Cottrell.
Legal Topics
Execution of Wills, Validation of Defective Wills Under S14 Wills Act 2007, Witnessing Requirements (s11 Wills Act 2007), Without‑notice Procedure (high Court Rules), Intestate Succession to Parents (administration Act 1969)
Wills and Succession Civil Procedure Execution of Wills Validation of Defective Wills Under S14 Wills Act 2007 Witnessing Requirements (s11 Wills Act 2007) Without‑notice Procedure (high Court Rules) Intestate Succession to Parents (administration Act 1969)

Case Brief

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Parties

Phillip Alexander Cottrell

Deceased

Applicant

Applicant

Parents of Phillip Alexander Cottrell

Interested Parties

Procedural Posture

Application Under S 14 Wills Act 2007 / Without‑notice Application Determined on the Papers

Legal Issues

  1. 1 Whether a document that does not comply with s11 Wills Act 2007 can be declared the deceased's last will under s14
  2. 2 Whether the application could be properly heard without notice under High Court Rules r7.46 given persons who would be affected
  3. 3 Whether the document evidences the deceased's testamentary intention

Ratio Decidendi

The Court will validate a non‑compliant will under s14 Wills Act 2007 where the evidence shows the document expresses the deceased's testamentary intention and persons who would be affected by a contrary order have had a proper opportunity to be heard (here they were aware and consented); given those facts the defective witnessing was remedied by the statutory power and the document was declared the last will.

Court Disposition

Order under s14 Wills Act 2007 declaring the document dated 13 June 2010 to be the last will of the deceased, Phillip Alexander Cottrell.

Orders

  • Declare valid as the last will of the deceased the original document dated 13 June 2010 (annexed as exhibit C to the affidavit of Sashi Kant Meanger)
  • Admit and receive the affidavit of the deceased's parents despite pages not being initialled pursuant to High Court Rules r9.79