Estate of Lee

[2023] NZHC 207

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-041

[2023] NZHC 207

UNDER

Section 14 of the Wills Act 2007 and r 27.4 of the High Court Rules 2016

ESTATE OF DORIS CECILY LEE

WILLIAM ALFRED LEE AND GREGORY MARK LEE

Applicants

On the papers
Counsel:	J Tng for Applicants
Judgment:	16 February 2023

JUDGMENT OF THOMAS J (VALIDITY OF WILL)

[1]The deceased, Doris Cecily Lee, died on or about 6 June 2022 at Hamilton.

[2]        The applicants, William Alfred Lee and Gregory Mark Lee, have applied for an order that a document, a copy of which is exhibited to their affidavit, be declared a valid will of the deceased.

Application

[3]        The deceased executed a document dated 24 July 2008 that was stored at the premises of McBreens, Solicitors. The document is signed by the deceased but

RE ESTATE LEE [2023] NZHC 207 [16 February 2023]

witnessed by only one witness. The applicants believe that the deceased intended this document to be her last will.

[4]        The applicants have also located an earlier will executed on 18 July 1997. Those with a beneficial interest in the earlier will are the applicants, Howard William Lee and Christina Jane Lee. Howard Lee and Christina Lee have both consented to the grant of the application.

[5]        It is apparent from the supplementary affidavits from Robert Morse, formerly a solicitor and now retired, and Donna Gifford, previously employed as a secretary in the law firm of McBreens, that the document does not record the signature of the second witness through oversight. Mr Morse witnessed the signing of the document by the deceased and endorsed the will of the deceased as witness. Ms Gifford was the second witness to the signing of the document but, due to the number of documents being signed at the time, she inadvertently overlooked endorsing the witnessing on the will.

Analysis

[6]        This Court may declare a document to be a valid will of a deceased pursuant to s 14 of the Wills Act 2007 which 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.

[7]I am satisfied that:

(a)the applicants are the executors named in the document;

(b)the document has not been executed in the manner prescribed in s 11(4) of the Wills Act 2007;

(c)the document expresses the deceased’s testamentary intentions; and

(d)consent from those potentially affected by the granting of the order has been obtained.

[8]        Pursuant to s 14(2) of the Wills Act, I make an order declaring the document to be the valid will of Doris Cecily Lee.

Thomas J

Solicitors:

McBreens, Hamilton