Alexander

[2020] NZHC 1978

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-378

[2020] NZHC 1978

IN THE MATTER OF	Section 14 of the Wills Act 2007
AND
IN THE MATTER OF	DENIS JAMES ALEXANDER

.

Hearing:	On the papers
Counsel:	J M Burney for Applicant
Judgment:	7 August 2020

JUDGMENT OF CLARK J

[1]                  Denis James Alexander died in New Zealand in February 2020. Those with a beneficial interest in his estate are his three adult children: Zak Alexander, Kain Wilson (née Alexander) and Aza Alexander.

[2]Zak Alexander has filed an originating application without notice seeking:

(a)leave for the application to be made without notice; and

(b)an order under s 14  of  the Wills Act 2007  that  a  document  dated 17 December 2002 exhibited to his affidavit be declared the last valid will of the deceased.

Alexander [2020] NZHC 1978 [7 August 2020]

[3]The document in respect of which the order is sought states:

17-12-02

The will & testament Denis James Alexander in Sound Mind & Body. I Here By Leave My House & Contents

To:Zak James Alexander  28-7-83 Kain Charlotte Alexander 10-6-85 Aza Denis Alexander Born 29-4-87

To Do as they so wish

Witness

Eyvonne Sickamore  [Signed] Denis James Alexander

…

17-12-02

[4]                  The document is signed but only in the presence of one witness. In this regard it does not comply with s 11(4) of the Wills Act, which requires at least two witnesses to be together in the will-maker’s presence when signing the document and that the witnesses sign the document in the will-maker’s presence.

[5]                  If the High Court is satisfied that a document appears to be a will and that it expresses the testamentary intentions of the deceased, the Court may make an order declaring the document to be a valid will.1

[6]                  In determining an application under s 14, the Court may consider the document itself, any evidence as to the signing and witnessing of the document, evidence as to the deceased’s testamentary intentions and evidence of statements the deceased may have made that are relevant to the deceased’s testamentary intentions.2

[7]                  This application under s 14 might be viewed as straightforward but for some perplexing statements in the documentation. One of the grounds for the application under s 14 is that:

1      Wills Act 2007, s 14.

2      Section 14(3).

2.1 the applicant is the son of the deceased, and the two other children have consented to his appointment and no one else has higher authority to apply;

…

[8]                  That ground is not relevant to the making of an order declaring that the document expresses the deceased’s intentions.

[9]                  The affidavit filed in support, and the memorandum of counsel, illuminate that supposed ground but obscure the s 14 application. The applicant swears:

11.I would be entitled to succeed on the intestacy, with my siblings consent.

[10]              The applicant further deposes to attaching the consents of his siblings to his application under s 14 namely, that the document be declared a valid will. Putting aside for a moment the confusing reference to an entitlement to succeed on intestacy and the relevance of that statement, the consents themselves are not to the grant of an order under s 14. The consent document of Kain Wilson states that she consents

… to a grant of letters of administration with will annexed of all the deceased’s estate, effects and credits being made to Zak James Alexander, the applicant.

[11]The consent signed by Aza Alexander is in precisely the same terms.

[12]              A memorandum of counsel requests probate be granted alongside the s 14 order. Counsel suggests that the affidavit and exhibits required for a separate application for probate would contain the same information provided to the Court in support of the s 14 application.

[13]              A further infelicity is this: originating applications without notice must comply with the requirement in r 7.23 as to the correct form of the application and the requirement that the solicitor or counsel “certify” as to the matters in the form.3

[14]              It has been said that certification is more than a mere technicality. It is a mandatory precondition.4

3      The correct form is form G32.

4      Craig v Craig [2019] NZHC 414; High Court Rules 2016, HR7.23.01.

[15]              While the memorandum of counsel states that the applicant’s two siblings have consented to the application as I have pointed out, that is not what they have consented to.

[16]              Validating a will is not a matter of rubber stamping an application. It is a solemn matter and due consideration must be given to all aspects of the process. I understand that the estate is looking to sell property conditional upon probate being granted by 26 August 2020, but the formalities of applications under the Wills Act and (the formalities when probate is sought) must be observed.

[17]              The applicant’s affidavit in support of his s 14 application was sworn outside New Zealand. I note that counsel was advised by a registry officer that the affidavit had not met the requirement of r 9.86(1) of the High Court Rules, in that there was no statement in the jurat to the effect that the person administering the oath is qualified to do so.

[18]              The advice was properly given. Strict compliance with r 9.86(2) is expected. The basis for the person’s authority to administer the oath is to be clearly stated. The applicant’s affidavit was sworn in Western Australia before a Justice of the Peace who has provided:

(a)his full name;

(b)his signature (not stamped);

(c)confirmation that he is a Justice of the Peace; and

(d)his registration number.

[19]              Although it would not be expected that the Court undertake the task of verifying that the person administering the oath is authorised to do so, in the interests

of expedition I have checked the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). I am satisfied the affidavit has been properly sworn.5

[20]              My satisfaction as to the affidavit does not overcome the other issues I have identified. For the foregoing reasons, the application for leave to proceed by way of originating application is declined.

[21]              As the application to proceed by way of originating application is declined, it follows that an order under s 14 is unable to be granted. The applicant should resubmit the documentation bearing on the s 14 application in proper form. Following validation of the will, the next step would be the grant of letters of administration with the will annexed.

Karen Clark J

Solicitors:

Le Pine & Co Solicitors, Putaruru

5      Under r 9.86(3), an affidavit that appears to comply with r 9.86(1)(b) must be taken to be properly sworn unless the court requires verification by evidence or other means.