Leith (deceased) HC Invercargill CIV-2011-425-3379

[2011] NZHC 1779

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2011-425-3379

UNDER  IN THE ESTATE OF DOUGLAS CAMPBELL LEITH (DECEASED)

Hearing:         On the papers

Counsel:         A E Henderson

Judgment:      5 December 2011 at 1:00 PM

I direct the Registrar to endorse this judgment with a delivery time of 1pm on the 5th
day of December 2011.

JUDGMENT OF MACKENZIE J

[1]      This application for probate was dismissed by the Registrar, on the grounds that the will was not valid, because it did not contain a statement confirming that it was executed in accordance with the requirements of s 11(4) of the Wills Act 2007 (the 2007 Act).  Counsel for the applicant has, by letter, questioned that dismissal.  I treat counsel’s letter as an application to review the Registrar’s decision, under r 2.11 of the High Court Rules.

[2]      The will is dated 6 December 2002.   It is a two page document in a form which is clearly intended to constitute a valid will.  At the foot of the second page there is a heading “Attestation”.  Beneath that heading are places for signature by the testator and two witnesses. All three, the testator, and the two witnesses, have signed in the places provided.   There is not, as might be expected, the usual attestation clause:  that is, a clause which contains an express statement that both the witnesses were present when the testator signed the document, and that all three were present

when each witness signed.

RE LEITH (DECEASED) HC INV CIV-2011-425-3379 5 December 2011

[3]      The inclusion in wills of an attestation clause stating these matters is a long established will drafting practice.  That form of statement as to the manner of signing provided evidence that s 9 of the Wills Act 1837 (UK) (the 1837 Act) had been complied with. That section was in force when this will was signed.  It provides:

No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned; (that is to say), it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.

[4]      An attestation clause was not necessary for the validity of the will, as the final words of s 9 make clear.  Evidence that the requirements of s 9 had been met when the will was signed could be provided by other means.   Probate practice allowed for the filing of an affidavit of due execution from a witness who could depose to the circumstances of the signing of the will.   Other forms of evidence might  also  be  available.    Where  evidence  could  not  be  obtained,  and  the  will appeared on its face to have been duly executed, a presumption of due execution

could apply.[1]

[1] J Earles, WLB Douglas, C Kelly and G Kelly (eds) Dobbie’s Probate and Administration

Practice (5th ed, LexisNexis, Wellington, 2008) at [27.34.2].

[5]      The 2007 Act substantially retained the requirements for signing a valid will. However, it made some changes, one of which is particularly significant for present purposes.   The requirements are now contained in s 11 of the 2007 Act, which provides:

1)        A will must be in writing.

(2)       A will must be signed and witnessed as described in subsections (3)

and (4).

(3)       The will-maker must—

(a)      sign the document; or

(b)      acknowledge that a person directed by the will-maker signed the document in the will-maker's presence.

(4)       At least 2 witnesses must—

(a)       be together in the will-maker's presence when the will-maker complies with subsection (3); and

(b)       each state on the document, in the will-maker's presence, that the witness was present when the will-maker complied with subsection (3); and

(c)      each sign the document in the will-maker's presence.

[6]      Section 11(4)(b) imposes a requirement which was not in s 9 of the 1837 Act. Each witness must state on the document that the witness was present when the will- maker signed. A failure to meet that requirement will mean that the requirements for validity in s 11 are not met, and the will will not be valid.   An affidavit of due execution, establishing that the witnesses were in fact present, will no longer be sufficient.    The  presumption  of  due  execution  cannot  overcome  this  difficulty, because of the clear words of s 11(4)(b).

[7]      For wills made on or after 1 November 2007, invalidity on that ground is not fatal.  Under s 14 of the 2007 Act, the Court may make an order declaring the will valid.  For wills made before 1 November 2007, this means of averting the invalidity is not available.   By s 40(1)(k), s 14 does not apply to such wills.   There may be cases where s 11(4)(b) may lead to the invalidity of a will which was validly made in accordance with the law in force at the date of its execution.

[8]      This problem has arisen in other cases.  In Re Drury I said: [2]

The requirement that the witnesses must each state in the documents that they were present when the will maker signed the will raises uncertainty as to whether the previous practise of obtaining an affidavit of due execution is still available.  A statement in an affidavit of due execution that each of the witnesses  was  present  when  the  will  maker  signed  the  will  would  be evidence to satisfy the requirement in s 11(4)(a).  It would not be sufficient to satisfy the requirement in s 11(4)(b).  That difficulty is of serious concern. It opens up the possibility that a will which could have been proved to be validly executed in accordance with the law in force at the time that it was executed, may now be incapable of meeting the requirements for a valid will.  That possibility is particularly serious because the ability to correct a will, under s 14 of the Act, will not be available.

[2] Re Drury (Deceased) (2010) 28 FRNZ 170 (HC) at [9].

[9]      Similar concerns had been expressed by Asher J in Re Lincoln[3] and Allan J in

Re Fry.[4]  The point was taken up by Parliament.  In the Statutes Amendment Bill (No

2) 2011, an amendment to s 11 was introduced, and was reported on by a select committee.  The Bill was not passed before Parliament was dissolved for the 2011 general  election.    I  consider  it  appropriate  to  express  the  hope  that  the  new Parliament will not overlook the need for the amendment which its predecessor commenced but did not complete.

[3] Re Lincoln (Deceased) HC Auckland CIV 2009-404-3402, 17 July 2009.

[4] Re Fry HC Nelson CIV-2009-442-298, 21 September 2009.

[10]     In this case, there is no doubt that the requirements of s 9 of the 1837 Act, and of s 11(4)(a) and (c) of the 2007 Act were met.  The questions for determination are:

(a)      Whether the requirement of s 11(4)(b) is met;  and

(b)If not, is there any way in which the will can be corrected to avoid the invalidity which will otherwise follow from the failure to meet that requirement.

[11]     The requisite signatures of the will-maker and two witnesses appear, under the heading “attestation”.  Is that sufficient to meet s 11(4)(b)?  No particular form of words is necessary.  The cases which have dealt with s 11(4)(b) indicate that a liberal approach to the requirement is to be adopted.  In a minute dated 22 October 2009 in Re Stephenson, I said:[5]

[5] Re Stephenson (Deceased) HC New Plymouth CIV-2009-443-432, 22 October 2009 at [8]-[11].

The question is, does the signature of the witness immediately below the notation “I sign this before two witnesses …” constitute a statement on the document by each of the witnesses that the witness was present when the will-maker signed the will?

In considering this question, I bear in mind two considerations which, in my view, are relevant to the application of s 11(4)(b) to this case.  The first is that this will was made before the Act came into force.  That in turn has two important consequences.   The first consequence is that, though the requirements as to execution of the will were essentially the same as those now contained in s 11(4)(a) and (c), the additional requirement in (b) that there be a statement in the will did not then apply.  The second consequence is that, if it is held that the will, though it may have been valid under the

requirements in force at the time of its making, is not valid because this additional requirement has not been met, the option of an application under s 14 to declare the will valid will not be available, by virtue of s 40(2)(k).

The second consideration which is relevant to the application of the formal requirement in s 11(4)(b) is that the Act shows a parliamentary intention to ensure that the intentions of a testator should not be defeated by technical non-compliance, where those intentions are clear.   Sections 14 and 31 are instances of significant changes to the previous law, directed towards that objective.

Both  of  those  considerations  lead  me  to  the  view  that,  on  applying s 11(4)(b), the Court should adopt a liberal approach to the requirement to state on the document the fact of presence.   No particular form of words should be required.  That approach is consistent with other decisions of this Court to which I have been referred.  Particular forms of attestation clause were held to comply with s 11(4)(b), by Asher J in Re Lincoln HC AK CIV-

2009-404-003402 17 July 2009 and by Allan J in Re Fry HC NEL CIV-

2009-442-298 21 September 2009.   Both of these decisions reflect an approach which does not place emphasis on technicalities as to the wording of the attestation clause.

[12]     In Re Drury, I held that a clause which read in part “and attested by us in his presence” did, having regard to the meaning of the word “attested”, amount to a statement on the document that the witnesses were present when the will-maker signed.   I do not consider that it can properly be said that the bare heading “attestation” has that effect.  I am unable to hold, adopting the most liberal approach which I may properly do, that the requirement of s 11(4)(b) is met in this case.

[13]     The second question is whether there is any way in which the invalidity which follows that conclusion can be avoided.  Section 14 cannot be invoked, for the reasons I have given.  I consider that there may be another route open.  Section 31 of the Act provides:

(1)      This section applies when the High Court is satisfied that a will does not carry out the will-maker's intentions because it—

(a)      contains a clerical error; or

(b)      does not give effect to the will-maker's instructions.

(2)      The Court may make an order correcting the will to carry out the will-maker's intentions.

[14]     An affidavit has been filed by the testator’s solicitor, who was one of the

witnesses to the will.  She deposes that the testator signed the will in her presence

and in the presence of the other witness, and that both witnesses signed as witnesses in the presence of each other and in the presence of the testator.  She further deposes that the will was prepared by a law clerk in her office omitting the recital in the attestation clause.  She says that this was a clerical error which she did not detect at the time the will was signed.

[15]     That evidence indicates that the requirements of s 9 of the 1837 Act, in force when the will was signed, were met.   It also indicates that the omission of the attestation clause was, at least arguably, a clerical error, and that the way in which the will was signed and witnessed would have been accurately described by an attestation clause in the usual form.  That clerical error means that the will does not carry out the will-maker’s intentions, because it renders the will invalid.

[16]     While I have reached the conclusion that an order correcting the will under s 31  may  be  possible,  it  is  not  appropriate  to  determine  that  question  on  this application.    It  is  important  that,  when  the  powers  conferred  by the  2007 Act, including the power to declare a will valid and the power to correct a will, are exercised, procedures are adopted which reflect an appropriate balance between the need to ensure that all parties who may be affected by the exercise of the power have a proper opportunity to be heard, and the need to ensure that the procedures do not impose unnecessary cost and delay.

[17]     There should be a formal application to correct the will, under s 31 of the

2007 Act.  In the circumstances, this may in this case be by way of an interlocutory application in the probate proceedings.  In support of that application, there must be a memorandum of counsel, and appropriate affidavit evidence to enable the Court to determine who, if anyone, will need to be served.  The position of all those who will potentially be adversely affected if the will is corrected must be covered.   Those persons will include all those who would benefit under any prior will, or on an intestacy, if the will were not corrected.  The appropriate steps in relation to them should be considered by counsel, and any necessary application for directions as to service made.  If the consent of all or any such persons can be obtained, then it may be possible to dispense with formal service of the application on them.

[18]     I make the following orders:

(a)       The  Registrar’s  decision  dated  22 September 2011  dismissing  the application for probate in common form is set aside;

(b)The applicant should file an interlocutory application for an order correcting the will by adding the appropriate attestation clause omitted

by clerical error.

Solicitors:           AWS Legal, Invercargill

“A D MacKenzie J”