Estate of Maddox HC Auckland CIV 2009-404-8025

[2009] NZHC 2607

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-8025

IN THE ESTATE OF      Ernest Walter Maddox, of Auckland in

New Zealand, Retired, Deceased

Judgment:      22 December 2009

JDUGMENT OF HARRISON J

SOLICITORS

Steindle Williams Legal Ltd, Auckland

ESTATE OF MADDOX HC AK CIV 2009-404-8025  22 December 2009

[1]      Mr Peter Andrew, barrister, has applied for orders declaring the will of the late Ernest Walter Maddox dated 14 August 2008 to be valid and for the costs of the application to be met by the deceased's estate.   Mr Andrew has made a separate application for probate of Mr Maddox's will.

[2]      The relevant facts fall within a brief compass.  Mr Maddox plainly signed his will.   Two witnesses attested to his signature.   Both were solicitors employed by Steindle Williams Legal Ltd at Auckland.  Each has sworn an affidavit confirming that Mr Maddox signed the will in their joint presence.   However, the witnesses failed to state on the will, in Mr Maddox's presence, that they were present together when he signed.

[3]      This omission would not have invalidated the will under s 9 Wills Act 1837. However, it fails to meet the legal requirements of s 11(4)(b) Wills Act 2007 which was in force at the relevant time (questions arise about whether that provision is an accurate reflection of its predecessor, s 9 Wills Act 1837).

[4]      As a result of the omission to comply with s 11(4)(b), the nominated trustee and executor, Mr Andrew, has to apply for an order validating the will: s 14(1). Having read the affidavits of both witnesses, I am in no doubt that the witnesses' failure to comply with s 11(4)(b) was an oversight and that the document expresses Mr Maddox's testamentary intentions: s 14(2).

[5]      Accordingly I make orders declaring the will of Ernest Walter Maddox dated

14 August 2008 to be valid and directing the costs of this application to be met by his estate.

Rhys Harrison J