ESTATE R T BENNETT [2017] NZHC 2481

ESTATE R T BENNETT [2017] NZHC 2481

Where the attesting witnesses were dead and direct witness affidavits could not be obtained, the court accepted affidavits from the executors and solicitors providing circumstantial evidence and applied the presumption of due execution on the balance of probabilities; that evidence established that the witnesses were most likely present when the testator signed, so s11(4) was satisfied and the document is therefore valid without recourse to s14.

Citation
[2017] NZHC 2481
Parties
Applicant: GRAHAN RONALD BENNETT; Applicant: MICHAEL RONALD BENNETT; Applicant: DAVID HUGH RISHWORTH; Deceased: RONALD THOMAS BENNETT
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 October 2017
Procedural Posture
Probate/will Validity / Application for Declaration of Will Validity (on the Papers) / Judgment
Outcome
Declared that the document purporting to be Ronald Bennett's last will complies with s11(4) of the Wills Act 2007 and appears to be a valid will; applicants' requested effect granted; application fee for renewed probate waived.
Legal Topics
Will Formalities, Attestation Clause, Presumption of Due Execution, Section 14 Declaration
Wills and Succession Probate Civil Procedure Will Formalities Attestation Clause Presumption of Due Execution Section 14 Declaration

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Parties

GRAHAN RONALD BENNETT

Applicant

MICHAEL RONALD BENNETT

Applicant

DAVID HUGH RISHWORTH

Applicant

RONALD THOMAS BENNETT

Deceased

Procedural Posture

Probate/will Validity / Application for Declaration of Will Validity (on the Papers) / Judgment

Legal Issues

  1. 1 Whether the will complied with the s 11 witnessing and signing requirements
  2. 2 Whether s 14 could be used to validate the will in circumstances where attesting witnesses are dead
  3. 3 Whether the presumption of due execution applies where direct witness evidence is unavailable

Ratio Decidendi

Where the attesting witnesses were dead and direct witness affidavits could not be obtained, the court accepted affidavits from the executors and solicitors providing circumstantial evidence and applied the presumption of due execution on the balance of probabilities; that evidence established that the witnesses were most likely present when the testator signed, so s11(4) was satisfied and the document is therefore valid without recourse to s14.

Court Disposition

Declared that the document purporting to be Ronald Bennett's last will complies with s11(4) of the Wills Act 2007 and appears to be a valid will; applicants' requested effect granted; application fee for renewed probate waived.

Orders

  • Declare the document purporting to be the last will of Ronald Thomas Bennett complies with s11(4) of the Wills Act 2007 and appears to be a valid will
  • Waive any application fee for a renewed application for probate on that basis