Estate of Marsden

[2015] NZHC 2885

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-0817 [2015] NZHC 2885

UNDER	section 14 of the Wills Act 2007
IN THE MATTER OF	an Application declaring a Will valid
IN THE ESTATE OF	JACQUELINE HELEN MARSDEN

On the papers
Date:	19 November 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 19 November 2015 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Martelli McKegg, Auckland.

ESTATE OF JACQUELINE HELEN MARSDEN [2015] NZHC 2885 [19 November 2015]

[1]      The deceased, Jacqueline Helen Marsden, died on or about 5 April 2015.

[2]      The applicant and husband of the deceased, Robert Marsden, applies for an order that a document be declared the valid will of the deceased.

Evidence

[3]      In his affidavit, Mr Marsden explained that he located a document made by the deceased dated 6 May 2005 wherein she purported to appoint Mr Marsden her executor and leave the whole of her estate to him provided he survived her for one calendar month.  The deceased signed the document in the presence of one witness. For some reason which Mr Marsden cannot explain, she has also written the date of

18 November 2005 on the document.

[4]      Mr Marsden outlined the circumstances of the document being executed. The deceased prepared wills for herself and Mr Marsden in 2005 and they both signed them in front of one witness.  They were not aware a second witness was required. They understood that they had made valid wills and therefore, did not make new ones.

[5]      Mr Marsden said he believed the document reflected his wife’s testamentary wishes, that is, that the estate is left to him and, if he does not survive her, to her children.

[6]      Enquiries have been made to confirm that no other will was executed by the deceased.

[7]      The deceased and Mr Marsden have one child, a 12 year old boy.  As legal guardian, Mr Marsden consented to the application on his behalf.

[8]      Mr Marsden  does  not  elect  to  make  an  application  under  the  Property

(Relationship) Act 1976 for a division of the relationship property.1

1      Property (Relationship) Act 1976, s 61.

[9]      Mr Marsden  and  the  deceased  were  not  separated  at  the  time  of  the

deceased’s death.

[10]     Reasonable enquiries have been made as to the existence of any parent or child in addition to those already known to Mr Marsden who could claim an interest. Both parents of the deceased have died.

[11]     The affidavit of the deceased’s cousin, Catherine Atchison, is to the effect that she discussed the deceased’s personal affairs with her in 2008 and the deceased informed her that she and her husband, Mr Marsden, had wills in place.  From that conversation, Ms Atchison considered that the deceased believed she had signed a valid will in 2005.

Analysis

[12]     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.

[13]     I am satisfied that:

(a)       the applicant is the executor 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)the only other person who may be potentially affected by the granting of the order is the deceased’s son and it is appropriate in the circumstances  that  Mr Marsden  consents  to  the  application  on  his behalf.

[14]     Pursuant to s 14(2) Wills Act I make an order declaring the document to be the valid will of Jacqueline Helen Marsden.

Thomas J