New Zealand Case Law: Decisions & Judgments | LexChat

Topic

Presumption of due execution

Legal area

Court

11 Oct 2017

ESTATE R T BENNETT [2017] NZHC 2481

Citation

[2017] NZHC 2481
Court

High Court

Where the attesting witnesses were dead and direct witness affidavits could not be obtained, the court accepted affidavits from the executors and solicitors providing circumstantial evidence and applied the presumption of due execution on the balance of probabilities; that evidence established that the witnesses were most likely present when the testator signed, so s11(4) was satisfied and the document is therefore valid without recourse to s14.
5 Dec 2011

RE LEITH (DECEASED) HC INV CIV-2011-425-3379

Citation

openlaw-bfd36854_cc55_4f38_a630_0cfdb1faa0ba.pdf
Court

High Court

The Registrar's dismissal was set aside because, while the heading 'Attestation' alone did not satisfy s11(4)(b), the solicitor-witness affidavit established the omission of a conventional attestation clause was a clerical error; s14 relief is unavailable for pre-1-Nov-2007 wills, but s31 may permit correction to insert an appropriate attestation clause, and the proper procedure is a formal interlocutory s31 application with service on potentially affected persons.