Leith

[2012] NZHC 1190

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2011-425-379 [2012] NZHC 1190

In the Estate of                 DOUGLAS CAMPBELL LEITH (DECEASED)

Hearing:         On the papers Counsel:  A E Henderson Judgment:   30 May 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 10.30am on the 30th day of May 2012.

JUDGMENT OF MACKENZIE J

[1]      On 5 December 2011, I delivered a judgment which addressed issues as to the validity of the will, so far as compliance with the requirements as to signature and attestation in s 11 of the Wills Act 2007 is concerned.  In that judgment, I concluded that the requirement of s 11(4)(b), that there be a statement on the documentation that the witnesses were present when the will-maker signed, was not met.   I considered that the will would be invalid, and that that invalidity could not be cured by a declaration under s 14 of the Act, because the will was  executed prior to

1 November 2007.  By s 40(1)(k), s 14 did not apply to the will.

[2]      I suggested that an application for an order correcting the will under s 31 might be made.  That application was made.   In a subsequent minute, I addressed some procedural issues relating to that application.  These have now been addressed by counsel, and the matter comes before me once more for consideration of the s 31

application.

RE LEITH (DECEASED) HC INV CIV-2011-425-379 [30 May 2012]

[3]      Since my judgment delivered on 5 December 2011, the law has changed. The Wills Amendment Act 2012 came into force on 25 February 2012.   That amended s 11(4), from its commencement.  The requirement that there be a statement on the face of the will that the witnesses were present when the will-maker signed no longer applies.   I consider that the form of attestation used in this will complies with the new requirements of s 11.

[4]      The Wills Amendment Act 2012 also repealed s 40(1)(k) of Act, as from its commencement.  Accordingly, to the extent that the attestation might not meet the new requirements of s 11, the will can now be declared valid.

[5]      In the circumstances, and having regard to that change in the law, I consider that it is now unnecessary for me to deal with the application for correction.   I consider that, to avoid any doubt as to whether the requirements of s 11, as amended by the 2012 amendment, have been complied with, the appropriate course is to make an order declaring the will valid under s 14.

[6]      The only persons who will be affected by an order declaring the will valid are the beneficiaries under the deceased’s previous will.   My earlier minute addressed that issue.   I am satisfied that all persons affected have consented.  Accordingly, I consider that it is in the interests of justice to proceed on a without notice basis.

[7]      There will be an order declaring as valid the will of the deceased dated

6 December 2002, marked A and referred to in the affidavits of Peter Hamish Leith sworn on 2 August 2011 and Anne Elizabeth Henderson sworn on 25 August 2011.

[8]      This has been a somewhat tortuous route to what is, in the result, the just and appropriate outcome.

“A D MacKenzie J”

Solicitors:         AWS Legal, Solicitors, Invercargill