RE ESTATE OF CAPSTICK [2018] NZHC 359

RE ESTATE OF CAPSTICK [2018] NZHC 359

On the evidence the 18 February 2016 draft will together with the solicitor's 26 February 2016 file note, when read in combination, expressed Paula Jane Capstick's testamentary intentions; accordingly the Court, pursuant to s14(2) Wills Act 2007, declared those documents to be her valid will despite non‑compliance with s11 because the remedial purpose of s14 and the civil standard of proof were satisfied.

Citation
[2018] NZHC 359
Parties
Applicant: Jonathan Irwin Farquhar; Applicant: Kathryn Mary Sommers; Deceased: Paula Jane Capstick
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 March 2018
Procedural Posture
Application Under Wills Act 2007 S 14 for Declaration Validating a Document as a Will / Judgment
Outcome
Order under s14(2) Wills Act 2007 declaring the 18 February 2016 draft will and the 26 February 2016 solicitor's file note to be the valid will of Paula Jane Capstick
Legal Topics
Will Validation, Testamentary Intentions, Admissibility of Solicitor's File Notes, Remedial Interpretation of Statutory Formalities
Wills and Estates Succession Civil Procedure Will Validation Testamentary Intentions Admissibility of Solicitor's File Notes Remedial Interpretation of Statutory Formalities

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Parties

Jonathan Irwin Farquhar

Applicant

Kathryn Mary Sommers

Applicant

Paula Jane Capstick

Deceased

Procedural Posture

Application Under Wills Act 2007 S 14 for Declaration Validating a Document as a Will / Judgment

Legal Issues

  1. 1 Whether the unsigned 18 February 2016 draft will and the solicitor's 26 February 2016 file note, in combination, express the deceased's testamentary intentions
  2. 2 Whether the High Court may validate non‑compliant documents under s14 of the Wills Act 2007
  3. 3 Whether documents created after death can be relied on to evidence testamentary intention and the effect of minor post‑death drafting changes

Ratio Decidendi

On the evidence the 18 February 2016 draft will together with the solicitor's 26 February 2016 file note, when read in combination, expressed Paula Jane Capstick's testamentary intentions; accordingly the Court, pursuant to s14(2) Wills Act 2007, declared those documents to be her valid will despite non‑compliance with s11 because the remedial purpose of s14 and the civil standard of proof were satisfied.

Court Disposition

Order under s14(2) Wills Act 2007 declaring the 18 February 2016 draft will and the 26 February 2016 solicitor's file note to be the valid will of Paula Jane Capstick

Orders

  • Under s14(2) Wills Act 2007 the draft will annexed as "D" to the affidavit of Lorrin Currie sworn 19 January 2017 and the file note annexed as "LC1" to her second affidavit sworn 21 July 2017 are declared the valid will of the deceased, Paula Jane Capstick
  • Consolidated terms declared as the deceased's last will: (a) revocation of prior wills; (b) appointment of Jonathan Irwin Farquhar and Kathryn Mary Sommers as trustees and executors; (c) burial in Kaiapoi Public Cemetery in the family double plot; (d) jewellery and personal effects distribution allowing Ms Sommers...