PUBLIC TRUST V CAPPER HC WN CIV-2012-485-000732

PUBLIC TRUST V CAPPER HC WN CIV-2012-485-000732

On the evidence (notably the deceased's 12 August 2011 email and supporting witness statements), the Court was satisfied the unsigned July 2011 draft expressed the deceased's testamentary intentions and met the s14 preconditions; the deceased's later contemplation of further changes did not negate the contemporaneous testamentary intention reflected in the draft, so the draft was declared his last will.

Citation
openlaw-46eb7beb_ac27_4438_8cfb_ec78d42d45a2.pdf
Parties
Plaintiff (executor of the Last Will of Phillip Henry Capper): Public Trust; First Defendant (son): John Eliot Capper; Second Defendant (son): Dairn Markell; Third Defendant (trustee of the F Jarvis Trust): Deborah Mary Jowitt; Third Defendant (trustee of the F Jarvis Trust): Mary Whaley; Fourth Defendant (trustee of the Phillip Capper Trust): Deborah Mary Jowitt
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 October 2012
Procedural Posture
Section 14 Application (will Validation) / Hearing (settlement Reached)
Outcome
The July 2011 draft will declared valid and the deceased's last will; no order as to costs.
Legal Topics
Will Validation, Testamentary Intention, Section 14 Wills Act 2007, Mutual Wills, Settlement
Wills and Succession Trusts Estates Civil Procedure Will Validation Testamentary Intention Section 14 Wills Act 2007 Mutual Wills +1 more

Case Brief

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Parties

Public Trust

Plaintiff (executor of the Last Will of Phillip Henry Capper)

John Eliot Capper

First Defendant (son)

Dairn Markell

Second Defendant (son)

Deborah Mary Jowitt

Third Defendant (trustee of the F Jarvis Trust)

Mary Whaley

Third Defendant (trustee of the F Jarvis Trust)

Deborah Mary Jowitt

Fourth Defendant (trustee of the Phillip Capper Trust)

Procedural Posture

Section 14 Application (will Validation) / Hearing (settlement Reached)

Legal Issues

  1. 1 Whether the unsigned July 2011 draft appears to be a will and fails to comply with s11 Wills Act 2007
  2. 2 Whether the July 2011 draft expresses the deceased's testamentary intentions for s14 purposes
  3. 3 Whether the January 2009 wills constituted mutual wills under s30 (raised but not determined)

Ratio Decidendi

On the evidence (notably the deceased's 12 August 2011 email and supporting witness statements), the Court was satisfied the unsigned July 2011 draft expressed the deceased's testamentary intentions and met the s14 preconditions; the deceased's later contemplation of further changes did not negate the contemporaneous testamentary intention reflected in the draft, so the draft was declared his last will.

Court Disposition

The July 2011 draft will declared valid and the deceased's last will; no order as to costs.

Orders

  • Declare the draft will prepared in July 2011 to be valid and to be the deceased's last will
  • No order as to costs