RE SMITH (DECEASED) HC WN CIV-2012-485-1262

RE SMITH (DECEASED) HC WN CIV-2012-485-1262

The document executed 15 December 2009, although witnessed by only one person and thus non‑compliant with s11, was held to express the deceased's testamentary intentions and, with evidence of inquiries locating no other will and consent from those who would be affected on intestacy, the Court validated the document under s14(2) of the Wills Act 2007.

Citation
openlaw-693fdd94_82ed_4b52_a82c_c3b8472e409d.pdf
Parties
Deceased: Leon Kristopher Smith; Applicant/executor: Deceased's brother (applicant and one of the executors); Witness (justice of the Peace): T W Thomas; Solicitors for Applicant: Sievwrights Law
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 August 2012
Procedural Posture
Application Under Section 14(2) of the Wills Act 2007 / Without‑notice Application Decided on the Papers (final Judgment)
Outcome
Order declaring the document dated 15 December 2009 to be the valid will of Leon Kristopher Smith pursuant to s14(2) Wills Act 2007; application dealt with without notice
Legal Topics
Testamentary Formalities, Court Validation of Informal Wills, Intestacy, Witnessing Requirements, Without‑notice Procedure
Wills and Succession Estate Administration Civil Procedure Testamentary Formalities Court Validation of Informal Wills Intestacy Witnessing Requirements Without‑notice Procedure

Case Brief

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Parties

Leon Kristopher Smith

Deceased

Deceased's brother (applicant and one of the executors)

Applicant/executor

T W Thomas

Witness (justice of the Peace)

Sievwrights Law

Solicitors for Applicant

Procedural Posture

Application Under Section 14(2) of the Wills Act 2007 / Without‑notice Application Decided on the Papers (final Judgment)

Legal Issues

  1. 1 Whether the court may hear the application without notice
  2. 2 Whether the document executed 15 December 2009 expresses the deceased's testamentary intentions so as to be validated under s14(2) of the Wills Act 2007
  3. 3 Effect of non‑compliance with s11 (only one witness)

Ratio Decidendi

The document executed 15 December 2009, although witnessed by only one person and thus non‑compliant with s11, was held to express the deceased's testamentary intentions and, with evidence of inquiries locating no other will and consent from those who would be affected on intestacy, the Court validated the document under s14(2) of the Wills Act 2007.

Court Disposition

Order declaring the document dated 15 December 2009 to be the valid will of Leon Kristopher Smith pursuant to s14(2) Wills Act 2007; application dealt with without notice

Orders

  • Declare valid as the will of the deceased the document signed by the deceased and witnessed by T W Thomas, JP, on 15 December 2009
  • Record that the document is annexed as exhibit A to the affidavit of Mr T W Thomas dated 2 February 2012