IN THE ESTATE OF ALBERT SUTTON TUCKER (DECEASED) [2019] NZHC 2928

IN THE ESTATE OF ALBERT SUTTON TUCKER (DECEASED) [2019] NZHC 2928

The codicil is invalid on its cumulative defects (unwitnessed, reference to a prior will and introducing an uncertain forfeiture term); the forfeiture condition in clause 7 is conceptually uncertain because terms like 'De Facto, civil union, gay or lesbian, life style' do not identify with sufficient precision the event that defeats the vested gift, and accordingly that condition is void; probate of the 6 July 2016 will is granted to the applicants and the application was properly dealt with without notice because all affected parties consented.

Citation
[2019] NZHC 2928
Parties
Applicant; Executor and Trustee: Robert John Park; Applicant; Executor and Trustee: Stephen Mark Connolly; Deceased: Albert Sutton Tucker; Beneficiary (grandchild): Jasmine Jayne Tucker; Beneficiary/third Party (waived Interest): The Salvation Army
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 November 2019
Procedural Posture
Will Validity and Probate Under Wills Act 2007 and Administration Act 1969 / On the Papers; Application for Declaration of Invalidity of Codicil, Deletion of Clause and Grant of Probate (without Notice)
Outcome
Codicil declared invalid; forfeiture condition in clause 7 void for uncertainty; probate granted to the applicants; application determined without notice
Legal Topics
Codicil Validity, Testamentary Condition Uncertainty, Forfeiture Clause, Without Notice Procedure
Wills and Estates Probate Statutory Interpretation Codicil Validity Testamentary Condition Uncertainty Forfeiture Clause Without Notice Procedure

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Parties

Robert John Park

Applicant; Executor and Trustee

Stephen Mark Connolly

Applicant; Executor and Trustee

Albert Sutton Tucker

Deceased

Jasmine Jayne Tucker

Beneficiary (grandchild)

The Salvation Army

Beneficiary/third Party (waived Interest)

Procedural Posture

Will Validity and Probate Under Wills Act 2007 and Administration Act 1969 / On the Papers; Application for Declaration of Invalidity of Codicil, Deletion of Clause and Grant of Probate (without Notice)

Legal Issues

  1. 1 Whether the 10 July codicil is valid (witnessing, reference to correct will, uncertainty)
  2. 2 Whether clause 7's forfeiture condition is void for uncertainty
  3. 3 Whether probate should be granted to the applicants

Ratio Decidendi

The codicil is invalid on its cumulative defects (unwitnessed, reference to a prior will and introducing an uncertain forfeiture term); the forfeiture condition in clause 7 is conceptually uncertain because terms like 'De Facto, civil union, gay or lesbian, life style' do not identify with sufficient precision the event that defeats the vested gift, and accordingly that condition is void; probate of the 6 July 2016 will is granted to the applicants and the application was properly dealt with without notice because all affected parties consented.

Court Disposition

Codicil declared invalid; forfeiture condition in clause 7 void for uncertainty; probate granted to the applicants; application determined without notice

Orders

  • Codicil dated 10 July declared invalid
  • The forfeiture condition in clause 7 of the will dated 6 July 2016 is void for uncertainty and deleted