Estate N J Watson [2014] NZHC 874

Estate N J Watson [2014] NZHC 874

Where there is credible doubt about testamentary capacity in relation to a later will and the same executor is appointed under both wills, the executor must propound both wills (apply for probate of both alternatives) so the Court can determine which is the last valid will; beneficiary consent cannot displace that duty and the court must not grant final probate until the capacity issue is determined.

Citation
[2014] NZHC 874
Parties
Deceased/testator: Noreen Joyce Watson; Applicant/executrix/trustee: Mary Brothers; Beneficiary/daughter: Elizabeth Watson; Beneficiary/daughter: Dianne Murray; Witness: Janice Stirling; Witness: Jennifer Tait; Will Drafter/witness: Peter Stratford; Medical Practitioner: Dr Charles Williams
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 April 2014
Procedural Posture
Application for Grant of Probate Under High Court Rules R27.5 / On the Papers — Interlocutory Direction Requiring Executor to Propound Both Wills and to Apply Under Administration Act S53 If Necessary
Outcome
Order made directing applicant to apply for probate of both wills in the alternative pursuant to High Court Rules r27.5(4) to enable determination of testamentary capacity before any final grant of probate.
Legal Topics
Testamentary Capacity, Probate, Executor Duties, Administration Act S53, High Court Rules R27.5
Succession/probate Civil Procedure Medical/capacity Testamentary Capacity Probate Executor Duties Administration Act S53 High Court Rules R27.5

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Parties

Noreen Joyce Watson

Deceased/testator

Mary Brothers

Applicant/executrix/trustee

Elizabeth Watson

Beneficiary/daughter

Dianne Murray

Beneficiary/daughter

Janice Stirling

Witness

Jennifer Tait

Witness

Peter Stratford

Will Drafter/witness

Dr Charles Williams

Medical Practitioner

Procedural Posture

Application for Grant of Probate Under High Court Rules R27.5 / On the Papers — Interlocutory Direction Requiring Executor to Propound Both Wills and to Apply Under Administration Act S53 If Necessary

Legal Issues

  1. 1 Whether the testator had testamentary capacity when executing the later will on 18 July 2013
  2. 2 Whether the executor must propound both wills when there is doubt about the validity of the later will
  3. 3 Whether beneficiary consent allows the court to dispense with proving a possibly later valid will

Ratio Decidendi

Where there is credible doubt about testamentary capacity in relation to a later will and the same executor is appointed under both wills, the executor must propound both wills (apply for probate of both alternatives) so the Court can determine which is the last valid will; beneficiary consent cannot displace that duty and the court must not grant final probate until the capacity issue is determined.

Court Disposition

Order made directing applicant to apply for probate of both wills in the alternative pursuant to High Court Rules r27.5(4) to enable determination of testamentary capacity before any final grant of probate.

Orders

  • Pursuant to r27.5(4) of the High Court Rules the applicant is directed to apply to prove both wills in the alternative; determination of testamentary capacity is required before final probate is granted.