RE ESTATE OF TOOMER [2016] NZHC 1615

RE ESTATE OF TOOMER [2016] NZHC 1615

The court declared the 6 February 2016 document to be the valid last will because the document plainly expressed the deceased's testamentary intentions and s 14 of the Wills Act 2007 authorises the court to cure the formal defects (only one witness who was not present at signing), supported by corroborating evidence and absence of opposition by affected parties.

Citation
[2016] NZHC 1615
Parties
Deceased: Dianne Frances Toomer; Applicant: Patrick Edward Gallagher; Beneficiary/interested Party: Michelle Patterson; Interested Party: Rex Gallagher; Interested Party: Society for the Prevention of Cruelty to Animals (SPCA); Interested Party: Salvation Army
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 July 2016
Procedural Posture
Application Under S 14 Wills Act 2007 / On the Papers; Application for Declaration of Validity of Will
Outcome
Order made under s 14 Wills Act 2007 declaring the document dated 6 February 2016 to be the last will and testament of Dianne Frances Toomer.
Legal Topics
Validity of Will, Section 14 Wills Act 2007, Testamentary Intention, Formal Execution Requirements
Wills and Estates Succession Civil Procedure Validity of Will Section 14 Wills Act 2007 Testamentary Intention Formal Execution Requirements

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Parties

Dianne Frances Toomer

Deceased

Patrick Edward Gallagher

Applicant

Michelle Patterson

Beneficiary/interested Party

Rex Gallagher

Interested Party

Society for the Prevention of Cruelty to Animals (SPCA)

Interested Party

Salvation Army

Interested Party

Procedural Posture

Application Under S 14 Wills Act 2007 / On the Papers; Application for Declaration of Validity of Will

Legal Issues

  1. 1 Whether the document dated 6 February 2016 expresses the testamentary intentions of the deceased
  2. 2 Whether s 14 of the Wills Act 2007 can validate a document that does not comply with s 11 formalities (insufficient witnessing)

Ratio Decidendi

The court declared the 6 February 2016 document to be the valid last will because the document plainly expressed the deceased's testamentary intentions and s 14 of the Wills Act 2007 authorises the court to cure the formal defects (only one witness who was not present at signing), supported by corroborating evidence and absence of opposition by affected parties.

Court Disposition

Order made under s 14 Wills Act 2007 declaring the document dated 6 February 2016 to be the last will and testament of Dianne Frances Toomer.

Orders

  • Under s 14 of the Wills Act 2007 the document dated 6 February 2016 is declared valid as the last will and testament of Dianne Frances Toomer.