Estate of Robertson HC Napier CIV-2011-441-520

[2011] NZHC 1213

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2011-441-520

IN THE MATTER OF     The Estate of Kathleen Georgina Robertson

Counsel:         D H McDonald

Judgment:      12 October 2011 at 11:30 AM

I direct the Registrar to endorse this judgment with a delivery time of 11.30am on the

12th day of October 2011.

JUDGMENT OF MACKENZIE J

[1]      Counsel for the applicant has filed a memorandum addressing the matters raised in my minute of 19 August 2011.  Counsel has advised that there is an earlier will dated 11 March 1993, which counsel believes to be the latest preceding will. Counsel advises that the two wills are essentially the same, except that a provision in the earlier will which directed that the share of one beneficiary was to be charged with a debt of $10,000 which was owing to the testatrix does not appear in the new will.  The testatrix had advised at the time of making the new will that the debt had been repaid.

[2]      On the basis of counsel’s memorandum,  I am satisfied that there are no parties who will be adversely affected by the making of an order declaring the will valid.   I am accordingly satisfied that the application can properly be dealt with without notice under r 7.46(3)(e) of the High Court Rules.

[3]      Turning  to  the  substance  of  the  application,  the  order  has  been  sought because the attestation clause reads “signed by the testatrix Kathleen Georgina Robertson and attested by us in her presence”.  The signatures of the two witnesses appear below that attestation clause, and the testatrix’s signature.   The question

whether  that  form  of  attestation  clause,  and  signature  of  the  will,  meets  the

ESTATE OF KATHLEEN GEORGINA ROBERTSON HC NAP CIV-2011-441-520 12 October 2011

requirements  of s 11(4)  of the Wills Act  2007  has  been  considered  in  previous decisions of this Court.  In Re Lauer,[1]  Heath J considered that this form of words was not sufficient to give rise to the inference that the witnesses were present when the will was signed.   In Re Drury,[2]  I reached the conclusion (having considered Re Lauer that the statement that the witnesses attested the will in the presence of the will maker did amount to a statement by each of the witnesses that the document was signed by the will maker in their presence, having regard to the meaning of the word “attested”.

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

[2] Re Drury HC Auckland CIV-2009-404-2778, 30 September 2010.

[4]      If the decision in Re Drury is correct, then the will is valid and no order under s 14(2) of the Wills Act 2007 is required.  In view of the conflicting authority, there may potentially be uncertainty as to the validity of the will.  This will was made on

14 December 2007, so that s 14 applies to it.  I consider that, to remove any doubt as to the validity of the will, the proper course is to make the order sought under s 14(2) of the Act.

[5]      There will be an order declaring that the will of the above named deceased dated 14 December 2007, is valid.

“A D MacKenzie J”

Solicitors:         McDonald Brummer, Solicitors, Hastings.