WELLS & OR V WELLS & OR HC AK CIV-2008-404-006379

WELLS & OR V WELLS & OR HC AK CIV-2008-404-006379

The handwritten document and diagram did not evince the requisite intention to partially revoke or vary the earlier duly executed will; the wording was conditional and ambiguous, the diagram was inconsistent with the memorandum and lacked formal testamentary status, and the extrinsic evidence was insufficient to establish a codicil, so probate was granted only for the will dated 10 February 2002.

Citation
openlaw-1ab20dd0_1e22_446b_9d71_baf63ea93d05.pdf
Parties
Plaintiff/executor: Susan Wells; Plaintiff/executor: Colin Boyes Mead; First Defendant/executor and Beneficiary Claimant: Daniel Trevor Wells; Second Defendant/beneficiary: Mata Esta Forbes; Interested Parties Represented by Court Appointed Counsel: Children (younger grandchildren)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 December 2009
Procedural Posture
Probate Dispute Validity of Handwritten Codicil to Will / Hearing and Reserved Judgment on Application for Probate in Solemn Form; Judgment Delivered
Outcome
Probate in solemn form granted for the will dated 10 February 2002; the handwritten document and diagram held not to be valid testamentary instruments or a codicil.
Legal Topics
Codicil, Revocation of Wills, Testamentary Intention, Incorporation by Reference, Execution Formalities, Holograph Documents
Wills and Estates Probate Codicil Revocation of Wills Testamentary Intention Incorporation by Reference Execution Formalities Holograph Documents

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Parties

Susan Wells

Plaintiff/executor

Colin Boyes Mead

Plaintiff/executor

Daniel Trevor Wells

First Defendant/executor and Beneficiary Claimant

Mata Esta Forbes

Second Defendant/beneficiary

Children (younger grandchildren)

Interested Parties Represented by Court Appointed Counsel

Procedural Posture

Probate Dispute Validity of Handwritten Codicil to Will / Hearing and Reserved Judgment on Application for Probate in Solemn Form; Judgment Delivered

Legal Issues

  1. 1 Whether the handwritten document executed the same day as the will constituted a valid codicil
  2. 2 Whether the testator had the requisite intention to partially revoke or vary the prior will
  3. 3 Whether the separately prepared diagram was incorporated by reference into the handwritten document/will

Ratio Decidendi

The handwritten document and diagram did not evince the requisite intention to partially revoke or vary the earlier duly executed will; the wording was conditional and ambiguous, the diagram was inconsistent with the memorandum and lacked formal testamentary status, and the extrinsic evidence was insufficient to establish a codicil, so probate was granted only for the will dated 10 February 2002.

Court Disposition

Probate in solemn form granted for the will dated 10 February 2002; the handwritten document and diagram held not to be valid testamentary instruments or a codicil.

Orders

  • Probate of the will dated 10 February 2002 granted in solemn form to Susan Wells and Colin Boyes Mead
  • The handwritten document dated 10 February 2002 and the diagram are declared not to be valid testamentary instruments and are not part of the will