Estate of Beattie

[2015] NZHC 570

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-11540 [2015] NZHC 570

UNDER	section 14 of the Wills Act 2007
IN THE MATTER	of an application declaring a Will valid
IN THE ESTATE	of GILBERT JOHNSTON MACKAY BEATTIE

On the papers
Counsel:	AW Johnston
Judgment:	26 March 2015

(ORAL) JUDGMENT OF FAIRE J

Solicitors:           Martelli McKegg, Auckland

Re  Beattie Estate [2015] NZHC 570 [26 March 2015]

[1]      A without notice application is made by the son of the deceased for an order

that a document dated 9 July 2003 be declared the valid Will of the deceased.

[2]      Gilbert Johnston MacKay Beattie died on 14 June 2014 in Hastings Hospital, Hawkes Bay, New Zealand.   He is survived by his three children, Irene Heather Lock, Gilbert Johnston MacKay Beattie and Robert Earnest Beattie.

[3]      His wife pre-deceased him, she having died on 14 July 2012.

[4]      At the time of his death the deceased was not living in a de facto relationship. [5]      The applicant has made reasonable inquiries for the purposes of the Status of

Children Act 1969 as to the existence of a parent or child of the deceased, in addition to those to whom I have made reference and who could claim an interest in the deceased’s estate by reason only of the Status of Children Act, and any enactment governing the distribution of intestate estates.

[6]      The result of those inquiries is that the applicant could not discover any living parent or child.

[7]      The document does not comply with the provisions of s 11(4)(b) of the Wills Act 2007, because it has been witnessed by one person only.  The document follows the form of a previous Will save for one matter, namely that the document appoints the applicant as executor in place of the Public Trustee.  The document leaves the residue of the deceased’s estate to his wife, now deceased, Johanna Louise Beattie and  in  the  event  that  she  died  prior  to  the deceased,  the  residue  is  left  to  the deceased’s children, who I have named previously in this judgment.  The children who I have referred to in this judgment are the only persons who would take if the deceased was found to have died intestate pursuant to the provisions of s 77 of Administration Act  1969.   The deceased’s  three children  have consented  to  the application.

[8]      Section 14 of the Wills Act provides:

14       High Court may declare will valid

(1)      This section applies to a document that—

(a)      appears to be a will; and

(b)      does not comply with section 11 and

(c)      came into existence in or out of New Zealand.

(2)       The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person's testamentary intentions.

(3)      The Court may consider—

(a)      the document; and

(b)      evidence on the signing and witnessing of the document; and

(c)      evidence on the deceased person's testamentary intentions;

and

(d)      evidence of statements made by the deceased person.

[9]      I am satisfied that the document complies with s 14(1).

[10]     The applicant has explained the circumstances surrounding the execution of the document.  The deceased and his wife advised the applicant that they wished the applicant to be their executor.   He advised that he was prepared to act in that capacity. As a result, new Wills were prepared in 2003. The document the subject of this application was signed by the deceased.   It records that it was signed by the deceased in the presence of a witness.   That witness signed the Will.   The only reason for non-compliance with s 11(4)(b) is the lack of an additional witness.  The document confirms the deceased’s previously expressed testamentary wishes as to the distribution of his estate.

[11]   I am satisfied that the document expresses the deceased’s testamentary intentions.  I am also satisfied that it was appropriate that this matter be dealt with on a without notice basis.

[12]     Accordingly, I order that the document dated 9 July 2003, a photocopy of which is attached to the Supplementary affidavit of the applicant, be declared the

valid will of Gilbert Johnston MacKay Beattie.

JA Faire J