Estate of Webster

[2016] NZHC 1834

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-577 [2016] NZHC 1834

IN THE ESTATE               of TRACEY ANN WEBSTER

Hearing:	On Papers
Counsel:	M J Inwood for Applicant
Judgment:	8 August 2016

JUDGMENT OF BROWN J

[1]      The applicant applies for an order under s 14 of the Wills Act 2007 declaring valid    a    document    apparently    written    and    signed    by    the    deceased, Tracey Ann Webster, dated 13 May 2016.  The applicant who is the widower of the deceased has provided an affidavit in support of the application.

[2]      The deceased died on or about 1 June 2016.  After her death the applicant found a document dated 13 May 2016 inside the deceased’s notebook.  The text of the document reads:

This is my last will in intestinat (sic).   I Tracey Webster agree that in my death that everything I have can be given to Jamie Webster.

[3]      The  applicant  confirms  that  the  document  was  written  in  the  deceased’s

handwriting and signed with her usual signature.

[4]      The applicant deposes that for a number of years prior to her death the deceased would talk to  him about making a will.   The general theme of those discussions was that the deceased wanted to ensure that the applicant would receive all her assets and she wanted to know that there would be sufficient assets for him to

survive.

IN THE ESTATE OF TRACEY ANN WEBSTER [2016] NZHC 1834 [8 August 2016]

[5]      The applicant has made full inquiries and searches for an earlier will made by the deceased and is satisfied that she did not execute an earlier will.  Consequently if the document the subject of the application is not declared to be a valid will, the deceased will be intestate.

[6]      The persons who would have a beneficial interest in the deceased’s estate on an intestacy are the applicant and the deceased’s parents, Robert Leslie Fargher and Susan Kay Fargher.   Attached to the applicant’s affidavit are consents by both the deceased’s parents to an order being made declaring the handwritten document to be a valid will of the deceased.

[7]      The Court may make an order declaring a document to be a valid will if it is satisfied that the document expresses the testamentary intentions of the deceased.  In deciding whether to make such an order the Court may consider the wording of the document, evidence as to the manner in which the document was signed and witnessed, evidence as to the testamentary intentions of the deceased and evidence of any statements that the deceased may have made relevant to the issue.1

[8]      In  Re  Estate  of  Feron  Whata J  observed  that  a  robust  approach  to  the application of s 14 is required because it is a remedial provision requiring the courts to validate documents provided they plainly express the wishes of the deceased person.2   As a result, s 14 may be used in any case to cure technical non-compliance with the requirements of the Act.  I agree with that approach.

[9]      I  am  satisfied  on  the  evidence  that  the  handwritten  document  dated

13 May 2016 is a document which appears to be a will, it does not comply with the requirements of s 11 (as it is not signed and witnessed by two witnesses as that section requires) and it expresses the deceased’s testamentary intentions at the time

that the document was signed by the deceased.

1      Wills Act 2007, s 14(3).

2      Re Estate of Feron [2012] NZHC 3155 at [11].

[10]     Accordingly I make an order under s 14 validating the document a copy of

which is annexed to the applicant’s affidavit marked “A”.

Brown J