RE CLAYTON (DECEASED) HC HAM CIV 2009-419-963

RE CLAYTON (DECEASED) HC HAM CIV 2009-419-963

Although the attestation clause omitted prescribed wording, the court was satisfied under s 14(2) that the codicil objectively expressed the deceased's testamentary intention to appoint two additional executors; accordingly the court declared the document a valid codicil and granted probate.

Citation
openlaw-1c02bf96_2c66_44bb_a7d0_2a07a016f39c.pdf
Parties
Deceased: Sidney Joseph Clayton; Applicants: Executors named in will (wife and three daughters); Co Applicants: Solicitor and accountant named in codicil; Witness/affiant: Tomasina Margaret Elliot Antunovich; Witness: Melissa Jayne Coate
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 September 2009
Procedural Posture
Will/probate / Application Under S 14 Wills Act 2007 (on Papers)
Outcome
Order declaring the document dated 11 December 2007 a valid codicil to the will dated 11 June 2003; probate granted.
Legal Topics
Codicil Validation, Wills Act 2007 S11 Attestation Requirements, Wills Act 2007 S14 Court Validation, Probate Application
Succession Wills Probate Equity Codicil Validation Wills Act 2007 S11 Attestation Requirements Wills Act 2007 S14 Court Validation Probate Application

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Parties

Sidney Joseph Clayton

Deceased

Executors named in will (wife and three daughters)

Applicants

Solicitor and accountant named in codicil

Co Applicants

Tomasina Margaret Elliot Antunovich

Witness/affiant

Melissa Jayne Coate

Witness

Procedural Posture

Will/probate / Application Under S 14 Wills Act 2007 (on Papers)

Legal Issues

  1. 1 Whether the codicil dated 11 December 2007 is valid despite an incomplete attestation clause under s 11 Wills Act 2007
  2. 2 Whether the High Court may declare the codicil valid under s 14 Wills Act 2007 by finding it expresses the testator's testamentary intentions

Ratio Decidendi

Although the attestation clause omitted prescribed wording, the court was satisfied under s 14(2) that the codicil objectively expressed the deceased's testamentary intention to appoint two additional executors; accordingly the court declared the document a valid codicil and granted probate.

Court Disposition

Order declaring the document dated 11 December 2007 a valid codicil to the will dated 11 June 2003; probate granted.

Orders

  • Declare valid as a codicil to the will dated 11 June 2003 the document dated 11 December 2007 described as a codicil to the will of Sidney Joseph Clayton
  • Order for probate as sought is made