Estate of Drury HC Auckland CIV 2009-404-2778

[2010] NZHC 1897

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-2778

IN THE MATTER OF     the Estate of FREDERICK LESLIE DRURY (Deceased)

Hearing:         (on the papers)

Counsel:         C Sparling for the applicants

Judgment:      30 September 2010 at 4.30pm

I direct the Registrar to endorse this judgment with a delivery time of 4.30pm on the

30th day of September 2010.

JUDGMENT OF MACKENZIE J

[1]      This is an application under r 2.11 of the High Court Rules for review of a registrar’s decision on this application for probate in common form.

[2]      The relevant part of the minute, of which review is sought, is as follows:

The attestation clause in the will is defective in that it does not disclose that the will was signed by the testator in the presence of the witnesses.

Section 11 of the Wills Act 2007 now requires that each witness to the will must state on the will that the witness was present when the will maker complied  with  the  formalities  of  executing  the  will.    Section 11  is  not affected by section 40 and therefore equally applies to wills made before

1 November 2007 if the will maker dies after that date.  This would appear to render ineligible for probate any will not containing any attestation clause

or containing an attestation clause with this essential element.  Please note that section 14 which enables the High Court to declare a will valid even

though   it   does   not   comply   with   section 11,  is,   by  section 40(2)(k), inapplicable to will made before 1 November 2007, therefore there is no ability for the High Court to declare such a will valid.   It may be that the

only way forward would be to apply for probate in solemn form.

ESTATE OF FREDERICK LESLIE DRURY HC AK CIV-2009-404-2778  30 September 2010

[3]      The attestation clause in the will reads as follows:

Signed by the Testator

The said Frederick Leslie Drury

On this 20th day of May

2005

and attested by us in his presence.

[4]      A  similar  form  of  attestation  clause  was  considered  by  this  Court  in Re Lauer.[1]    Heath J, after noting the requirements of s 11(4) of the Wills Act 2007 said:

[1] Re Lauer HC Auckland CIV-2009-404-6324, 2 December 2009.

[4]The legislation expressly provides that witnesses must state, when signing the Will, that they were together present when the will- maker  executed  the  document.     As  Mr  Allen,  for  the  named executors, accepts, a reference to the presence of the two witnesses when  the  will-maker  signed  the  Will  was  omitted  from  the attestation clause.

[5]In respect of Wills executed on or after 1 November 2007, there is jurisdiction to validate the Will, under s 14. However, because Ms Lauer’s Will was made before that date, jurisdiction does not exist. Unhappily, a lacuna has emerged as a result of the inapplicability of the validation provisions of s 14 to Wills executed before the Act came into force.

[6]       Mr Allen submits that the Court can infer, from the words used in the attestation clause, that the witnesses were present when the Will was signed.   Counsel also advises that an affidavit can be made available from the two witnesses, confirming their presence when the deceased signed the Will.

[7]Regrettably, I do not consider that the words used are sufficient to give  rise  to  that  inference.  Unlike  Re  Lincoln  (Deceased)  (High Court, Auckland, CIV 2009-404-3402, 17 July 2009, Asher J), there is no specific reference to presence of the two witnesses at the time the Will was signed. The attestation clause to Ms Lauer’s Will confirms that the witnesses executed the Will in the presence of the will-maker, but not that they were both present when she signed the Will. Because s 14 does not apply, I agree with the Registrar that there was no jurisdiction for him to grant probate.

[8]The availability of an affidavit confirming the  true position  will enable an application for probate in solemn form to be made, to overcome the difficulties: see, generally, McGechan on Procedure at para HR 27.6.01.

[5]      Counsel for the applicant frankly acknowledges that the registrar could not in this case have reached a conclusion different from that which he did.  Counsel seeks directions from the Court, and raises the possibility of the exercise of the inherent jurisdiction to enable probate to be granted.

[6]      Section 11(3) and (4) of the Wills Act provides:

(3)       The will-maker must—

(a)      sign the document; or

(b)       acknowledge that a person directed by the will-maker signed the document in the will-maker's presence.

(4)       At least 2 witnesses must—

(a)be together in the will-maker's presence when the will-maker complies with subsection (3); and

(b)each state on the document, in the will-maker's presence, that the witness was present when the will-maker complied with subsection (3); and

(c)      each sign the document in the will-maker's presence.

[7]      This will was executed before that Act came into force.  By virtue of s 40(2) the Act applies to it, save that ss 11(3)(a) and (b) must each be read as if the words “at its foot or end” appeared at the end of them.  At the time the will was executed, the relevant provision was s 9 of the Wills Act 1837 UK which provided:

No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned; (that is to say), it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.

[8]      In one respect, relevant in this case, there is a significant difference between the  old  and  the  new  requirements.     I  adverted  to  that  in  a  minute  dated

22 October 2009 in the Estate of Stevenson:[2]

[2] Estate of Stevenson HC New Plymouth CIV-2009-443-432, 22 October 2009.

[6]Under [s 9 of the Wills Act 1987 UK], as the final words indicate, no particular form of attestation was necessary to establish that these

requirements as to signature had been met.   The usual mode of establishing compliance was the use of an attestation clause containing a statement which was sufficient to establish that the requirements  were  met.     Where  there  was  a  will  which  had apparently been signed by the will-maker and two witnesses, but the attestation clause was deficient, in that it did not on its face assert facts as to presence and signature which met the requirements of s 9, probate practice was to require an affidavit of due execution, sworn by a person who could depose to the circumstances of the signing.

[7]       Paragraph  (b)  of  s 11(4)  effects  a  significant  alteration  to  the requirements.  It introduces a specific requirement that there must be a statement in the will itself of compliance with paragraph (a).  The issue in this case is whether the requirement that each witness state on  the  document  that the witness was present  when  the witness signed, has been complied with here.

[9]      The requirement that the witnesses must each state in the documents that they were present when the will maker signed the will raises uncertainty as to whether the previous practise of obtaining an affidavit of due execution is still available.   A statement in an affidavit of due execution that each of the witnesses was present when the will maker signed the will would be evidence to satisfy the requirement in s 11(4)(a).  It would not be sufficient to satisfy the requirement in s 11(4)(b).  That difficulty is of serious concern.  It opens up the possibility that a will which could have been proved to be validly executed in accordance with the law in force at the time that it was executed, may now be incapable of meeting the requirements for a valid will.  That possibility is particularly serious because the ability to correct a will, under s 14 of the Act, will not be available.

[10]     Those difficulties cause me to consider more closely the question whether the attestation clause does meet the requirements of s 11(4)(b).  Heath J accepted, in para [4] of Lauer, that a reference to the presence of the two witnesses was omitted.  That finding appears to have been based on a concession by counsel.  I consider that it is necessary to examine it more closely.

[11]     The attestation clause is brief.  The relevant part reads:  “and attested by us in his presence”.  Is that a statement in the will that the witness was present when the will maker signed the will, so as to comply with s 11(4)(b)?   The statement is an acknowledgement that the witnesses attested the will in the presence of the will maker.

[12]     What  is  attestation?    Jowitt’s  Dictionary  of  English  Law  (3rd   Edition)

contains the following definition of that term:

The signing by a witness to the signature of another of a statement that a document was signed by that other in the presence of the witness.  To attest is literally to witness any act or event, but the term is now exclusively applied to the signature or execution of a document. …

[13]     No authority is cited for that definition.  There is a statement to very similar effect as to the meaning of attestation by Dr Lushington in Hudson v Parker:[3]

Still further to elucidate the question, and not to escape from the difficulties of the case, and to shew that I have paid attention to every argument, and to every case cited, I will proceed to consider the remaining part of the section, “such witnesses shall attest, and shall subscribe the will in the presence of the testator.”  Here are two things which the witnesses are to do;  they are to attest, and they are to subscribe – mark the words!   Shall attest, and shall subscribe:  the word “shall” is repeated;  subscription alone will not do, it will not satisfy the state;  and it is a well established rule that you are to give, if possible, a rational meaning to every word of a statute.  Then if “attest” means something more than subscription, what does it mean?  “To attest” is to bear witness to a fact.  Take common example:  a notary public attests a protest;  he bears witness, not to the statements in that protest, but to the fact of the making of those statements;  so I conceive the witnesses in a will bear witness to all that the statute requires attesting witnesses to attest, namely, that the signature was made or acknowledged in their presence.

[3] Hudson v Parker (1844) 1 Rob Ecc 14, at 26; 163 ER 948, at 953.

[14]     Applying that definition, I consider that the words “attested by us” amount to a statement by each of the witnesses that the document was signed by the will maker in their presence.  Accordingly I consider that the attestation clause does meet the requirements  of  s 11(4)(b).    The  word  ‘attested’  is  a  sufficient  reference  to  the presence of the two witnesses when the will maker signed the will to comply with that provision.

[15]     For  these  reasons,  the  review  of  the  decision  of  the  deputy  registrar  is allowed.   The attestation clause in the will is not defective by reason of its not disclosing that the will was signed by the testator in the presence of the witnesses.

[16]     The application for probate is to be referred back to the registrar for further consideration.

“A D MacKenzie J”

Solicitors:           Steindle  Williams  Legal,  Barristers  &  Solicitors,  PO  Box  47-858,  Ponsonby, Auckland