Lewis HC Auckland CIV-2011-404-002770

[2011] NZHC 1625

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-002770

UNDER  the Wills Act 2007

IN THE MATTER OF     the estate of FRANCES MARJORY LEWIS (deceased)

Hearing:         (on the papers)

Counsel:         JR Coltman for applicant

Judgment:      18 October 2011

JUDGMENT OF ASHER J

This judgment was delivered by me on Tuesday, 18 October 2011 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Wynyard Wood, DX CP20544, Auckland. Email:  [email protected]

Re Lewis HC AK CIV-2011-404-002770 18 October 2011

Introduction

[1]      This interlocutory application without notice for probate has been referred to a Judge for decision.   The issue which arises is whether the will of the deceased Frances Marjory Lewis is valid under the Wills Act 2007 (“the Act”).

[2]      The will is dated 30 January 2001. The attestation clause reads:

SIGNED by the Testarix  ) The said FRANCES MARJORY         ) LEWIS in her presence and                  ) attested by us in her presence:               )

[3]      The will was made before the Act came into force on 1 November 2007. Nevertheless, the Act applies to it, albeit in a modified form.[1]   The Registrar directed on 20 May 2011 that the will does not comply with s 11(4)(b) of the Act.  It is stated in the attestation clause that the will-maker has signed in “her presence” rather than in “our presence”.  Section 11(4)(b) of the Act requires of this will that the witnesses must state that the witness was present when the will-maker signed the will.

[1] Wills Act 2007, ss 4 and 40.

[4]      The attestation clause does not literally state this.  It states that the will-maker was present when the witnesses signed the will, but does not state the converse, that the witnesses were present when the will-maker signed the will.  If that is the correct interpretation, it is theoretically possible that the will-maker may not have signed the will in the presence of the witnesses.

Discussion

[5]      No particular form of words is required by s 11(4)(b).   The words in an attestation clause can be construed in context and in the light of the factual background.    The  relevant  factual  background  is  that  this  was  a  will  and  the witnesses were attesting a signature by a will-maker.

[6]      Each witness has stated that they signed in Ms Lewis’s presence.  While the attestation clause does  not plainly state that  Ms  Lewis signed in the witnesses’

presence no other construction can be put on the phrase “her presence” as it first appears in the clause.  That phrase if taken literally is meaningless as Ms Lewis must have signed in her own presence.  In context, “her” must be read as meaning “our”. There has been a slip in the insertion of the word “her” rather than “our”.  There is no other sensible interpretation.  I am satisfied that on a proper construction of the attestation clause it states that Ms Lewis signed in the presence of the witnesses.

[7]      It is not necessary therefore to take the step referred to in Re Drury where MacKenzie J considered that the words “attested by us” amounted to a statement by each of the witnesses that the document was  signed by the will-maker in their presence.[2]   In that case the attestation clause did not contain any phrase referring to the presence of the witnesses.   However, MacKenzie J applied the following definition of “attestation” citing Jowitt’s Dictionary of English Law:[3]

The signing by a witness to the signature of another of a statement that a document was signed by that other person in the presence of the witness.  To attest is literally to witness any act or event, but the term is now exclusively applied to the signature or execution of a document. …

[2] Re Drury HC Auckland CIV-2009-404-2778, 30 September 2010 at [14].

[3] Daniel Greenberg (ed) Jowitt’s Dictionary of English Law (3rd ed, Sweet & Maxwell, London, 2010) vol 1 at 188.

[8]      The word  “attested” is  a sufficient  reference to  the presence of the two witnesses when Ms Lewis signed her will to comply with s 11(4)(b) of the Act. While it is not necessary to go down this route, I record that I would have been prepared to do so.[4]

Need for amendment of the Wills Act 2007

[4] In this respect I prefer the approach in Re Drury to that taken in Re Lauer HC Auckland CIV-2009-404-6324, 2 December 2009, constrained as it was by a concession of counsel (see [4]).

[9]      It is fortunate that this conclusion is reached.  The Act is in continuing need of amendment, as has been frequently observed.[5]   Section 11(4)(b) applies to wills of persons who die on or after 1 November 2007.   Under s 14, the High Court may declare a will valid if there is non-compliance with s 11.  However, under s 40(2) of

[5] See for example Re Lincoln HC Auckland CIV-2009-404-3402, 17 July 2009; Re Ioane HC Hamilton CIV-2009-404-5527, 22 October 2009; Re Dempster HC Auckland CIV-2010-404-3248, 18 June 2010 and Re Griffin HC Auckland CIV-2010-404-6302, 14 March 2011.

the Act,  s  14  is  stated  to  not  apply  to  a  will  made  before  1 November  2007.

Therefore, the saving provision in s 14 does not apply to a will executed prior to 1

November  2007.    Thus,  any  invalidity  arising  from  non-compliance  with  s  11 appears to be incapable of remedy.   The Act effectively changes the law retrospectively, in that it applies to wills drafted prior to its enactment, but offers no relief.

[10]     The  Statutes  Amendment  Bill  (No  2)  was  introduced  to  the  House  on

22 February 2011 and, if passed into law, will rectify the situation.[6]   However, in the interim, the Court is left to resolve cases such as this.

Conclusion

[6] Statutes Amendment Bill (No 2) 2011 (271-2), cl 93. The essential effect of cl 93 is to carry forward the law on the formalities for making a will under the Wills Act 1837 (UK), correcting the unintended effects of the changes that have been made by the Wills Act 2007 as identified in the cases cited above (see the select committee report at 2).

[11]     When read as a whole, the attestation clause can be read as a statement that each witness was present when the will-maker signed and a statement that the will- maker was present when each witness signed.

[12]     I conclude that the attestation clause in the will is not defective.

[13]     I therefore declare that the will is a valid will, and refer the application for probate back to the Registrar.

……………………………..

Asher J