Estate of Stuart-Menteath HC Rotorua CIV-2011-463-621

[2011] NZHC 1195

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2011-463-621

BETWEEN  IN THE ESTATE OF SIDNEY WALTER STUART-MENTEATH

Deceased

Hearing:         On the papers

Counsel:         J N Briscoe for applicant

Judgment:      6 October 2011 at 12:00 PM

JUDGMENT OF LANG J

[on without notice application for orders under s 14 Wills Act 2007]

This judgment was delivered by me on 6 October 2011 at 12 noon, pursuant to Rule

11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

IN THE ESTATE OF SIDNEY WALTER STUART-MENTEATH HC ROT CIV-2011-463-621 6 October 2011

[1]      This is a without notice application for an order under s 14 of the Wills Act

2007 (“the Act”) declaring a document valid as a will.  The document in question comprises three handwritten pages and is headed:

This will dated 28 April 2009 is the last will of me Sidney Walter Stuart–

Menteath of Waikuta Road Ngongotaha.

[2]      The document contains all the usual provisions that one would expect to find in a will.  It also complies with all of the requirements prescribed by the Act other than for the fact that the two persons who witnessed the will failed to record that they were each in the presence of the deceased when he signed the document.[1]   Both of these persons have, however, provided affidavits confirming that they were indeed present when the deceased signed the document.

[1] As required by s 11(4)(b) of the Act.

[3]      The only parties who will be materially affected in the event that probate is granted in respect of the document are the children of the deceased.  Some of them will have a smaller entitlement under the document than was the case under the previous will of the deceased dated 12 July 1993. All of the children of the deceased have, however, provided their written consents to the application.

[4]      I  am  satisfied  that  the  document  reflects  the  deceased’s  testamentary intentions,  and  that  all  persons  who  are likely to  be  materially affected  by the application consent to it being granted.

[5]      I therefore make an order under s 14 of the Wills Act 2007 declaring the document valid as the last will of the deceased.

Lang J

Solicitors:

Davys Burton, Rotorua