WILL OF GERALD EDWARD JAMES WALSH [2017] NZHC 2693

WILL OF GERALD EDWARD JAMES WALSH [2017] NZHC 2693

The Court was satisfied the document expressed the deceased's testamentary intentions despite the 2013 additions lacking two witnesses, and therefore declared the 1995 document valid under s14; furthermore, because the drafting order conflicted with the testator's intention to pay two specific bequests and then the residue to his sister, the Court corrected the will under s31 by reordering and deleting terms so the specific bequests are paid and the balance goes to the sister.

Citation
[2017] NZHC 2693
Parties
Applicant: Paul John Bucknell; Deceased: Gerald Edward James Walsh
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 November 2017
Procedural Posture
Application Under Wills Act 2007 (validation and Correction) / Application (without Notice), on the Papers
Outcome
Document dated 25 October 1995 declared valid as the last will of Gerald Edward James Walsh and will corrected under s31 to give effect to the testator's intentions.
Legal Topics
Section 14 Declaration of Will Validity, Section 31 Correction of Will, Testamentary Intention, Execution and Witnessing
Wills and Probate Succession Estate Administration Section 14 Declaration of Will Validity Section 31 Correction of Will Testamentary Intention Execution and Witnessing

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Parties

Paul John Bucknell

Applicant

Gerald Edward James Walsh

Deceased

Procedural Posture

Application Under Wills Act 2007 (validation and Correction) / Application (without Notice), on the Papers

Legal Issues

  1. 1 Whether the document expresses the deceased's testamentary intentions under s 14 of the Wills Act 2007
  2. 2 Whether unwitnessed additions to the will can be validated under s 14
  3. 3 Whether the will contains a drafting error such that it does not give effect to the will-maker's instructions and requires correction under s 31

Ratio Decidendi

The Court was satisfied the document expressed the deceased's testamentary intentions despite the 2013 additions lacking two witnesses, and therefore declared the 1995 document valid under s14; furthermore, because the drafting order conflicted with the testator's intention to pay two specific bequests and then the residue to his sister, the Court corrected the will under s31 by reordering and deleting terms so the specific bequests are paid and the balance goes to the sister.

Court Disposition

Document dated 25 October 1995 declared valid as the last will of Gerald Edward James Walsh and will corrected under s31 to give effect to the testator's intentions.

Orders

  • Declare the document dated 25 October 1995 marked A to the applicant's affidavit valid as the last will of Gerald Edward James Walsh.
  • Correct the will by shifting the terms of the 'Addition Bequest' on page two to immediately under the words 'I give and bequeath'.