Lemieux v Marsh

[2015] NZHC 2468

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-000433 [2015] NZHC 2468

IN THE MATTER

of the ESTATE OF BARBARA NGAWAI

TAIT MARSH

AND

IN THE MATTER

of an Application for Probate in Solemn
Form

BETWEEN

BARBARA NGAWAI TIANI LEMIEUX, AARON JOHN TAIT OLIVER, ROCHELLE MERIENA OLIVER AND KIERAN RATIMA OLIVER

Plaintiffs

AND

CHRISTINE MARSH Defendant

Hearing:	On the papers
Judgment:	8 October 2015

JUDGMENT OF DUFFY J

This judgment was delivered by me on 8 October 2015 at 3.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Lamb Bain Laubscher, Te Kuiti

Harkness Henry, Hamilton

Counsel:

E J Hudson, Barrister, Hamilton

LEMIEUX & ORS v MARSH [2015] NZHC 2468 [8 October 2015]

[1]      This is an application for probate in solemn form.  The application has been served on all the relevant persons. All those persons including the litigation guardian appointed to act for Jacob Oliver do not oppose the granting of probate as sought in the application.

[2]      The deceased made a properly executed will dated 5 April 2012.   It was prepared by the deceased’s lawyer Samuel Laubscher.  Subsequent to the execution of this will the deceased made written documents dated 21 March 2014; 22 March

2014 and 27 March 2014.  In addition, her lawyer Mr Laubscher attended her on 15

April  2014  and  made  notes  recording  further  instructions  for  the  deceased’s

testamentary dispositions.

[3]      The written material referred to above that postdates the will dated 5 April

2012 might be considered to be capable of evidencing an intention to revoke any earlier made will and to support an application to be declared a valid will under s 14 of the Wills Act 2007.   However, the plaintiffs have filed a helpful memorandum which shows that each document has its own problems, in terms of satisfying the requirements for validation in s 14.   More importantly none of the persons served with the application for solemn probate have applied pursuant to s 14 to have any of the subsequent documents validated as a will.

[4]      The  plaintiffs  and  the  litigation  guardian  for  Jacob  Oliver  have  filed memoranda supporting the admission of the will dated 5 April 2012 into probate. No-one else has taken any steps in this proceeding.  That being the case, I consider the will dated 5 April 2012 can be admitted to probate.

“Duffy J”