Estate of Mann

[2013] NZHC 1201

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2013-470-000338 [2013] NZHC 1201

UNDER  Section 14 of the Wills Act 2007

IN THE MATTER OF     the Estate of GLENYS FREDA MANN (deceased)

AND

IN THE MATTER OF     an application by RALPH GARY MANN and KATRINA MANN for a declaration as to the validity of a Will

Hearing:         On the papers. Judgment:  24 May 2013

JUDGMENT OF ANDREWS J

Solicitors:

Lyon O’Neale Donald, Tauranga:               PO Box 746, Tauranga

ESTATE MANN HC TAU CIV 2013-470-000338 [24 May 2013]

[1]      The applicants, who are the executors of the estate of Glenys Freda Mann, who died on 21 February 2013, have applied for an order under s 14 of the Wills Act

2007 for an order that a document signed by the deceased on 6 October 1997 is the valid last Will of the deceased.

[2]      In support of the application, Mr Douglas John Lyon of Tauranga has sworn an  affidavit  stating  that  he  is  a  Director  of  the  firm  of  Lyon  O’Neale Arnold, solicitors of Tauranga, who are acting in the estate of the deceased.  He is one of the witnesses  to  the  document  signed  by  the  deceased  on  6  October  1997.    That document appears to be a Will, in a standard format.  Mr Lyon says that he attended on the deceased (who was with her husband, who has since passed away) on 6

October 197, to sign her Will.  Both the deceased and her husband signed Wills in the presence of Mr Lyon, and also in the presence of his then secretary, Ms Scott. Mr Lyon states that he and Ms Scott both witnessed Mr Mann’s Will, but while he witnessed  the  deceased’s Will,  Ms  Scott  did  not.    Mr  Lyon  says  that  this  was overlooked by him at the time the deceased signed her Will.  Further, Mr Lyon says that he believes the Will expresses the deceased’s testamentary intentions.

[3]      I have reviewed both the document signed by the deceased, and Mr Mann’s

Will. They are in “mirror” terms.

[4]      Under s 11 of the Wills Act, a Will must be in writing, and must be signed and witnessed in accordance with s 11(3) and (4).  However, under s 14 of the Act, the High Court may make an order declaring that at document that appears to be a Will, but does not comply with s 11, is valid.  In order to make such an order, the Court must be satisfied that the document expresses the deceased person’s testamentary intentions.  In deciding whether to make such an order, the Court may consider  the  document,  evidence  as  to  signing  and  witnessing  the  document, evidence as to the deceased’s testamentary intentions, and evidence of statements made by the deceased person.

[5]      In  the  present  case,  I  have  no  doubt  that  the  document  signed  by  the deceased, and witnessed by Mr Lyon, was intended to be the deceased’s Will, and

expresses her testamentary intentions.   I am also satisfied that the absence of a second witness’s signature is inadvertent, and does not indicate any change of the deceased’s testamentary intentions.

[6]      Accordingly, I am satisfied that it is appropriate to make an order under s 14, that the document signed by the deceased on 6 October 1997 is the deceased’s valid last Will.

[7]      I so order.

Andrews  J