Re Campbell (deceased)

Case [2014] NZHC 1632


IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2013-443-259 [2014] NZHC 1632

IN THE MATTER OF

the Wills Act 2007 and the Administration

Act 1969

IN THE MATTER OF

the Estate of Norman Rob Campbell

Hearing: On the papers

Counsel:

G F Kelly for applicants
S Kinsler as amicus curiae

Judgment:

11 July 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

3 pm on the 11th day of July 2014.

Solicitors:           Welsh McCarthy, Hawera

Crown Law Office, Wellington

Re Campbell (deceased) [2014] NZHC 1632 [11 July 2014]

[1]      This is a without notice application for an order under s 14 of the Wills Act

2007 (the Act) declaring a document valid as the will of the deceased, Mr Campbell.

[2]      There are two preliminary procedural issues.   The first is the appropriate procedure.  There is no specific provision in the High Court Rules (the Rules) for applications under s 14 of the Act.  Where the application is not contested, the nature of  the  proceeding  is  such  that  the  procedure  under  pt 19  of  the  Rules  may be appropriate.  There is some analogy with the type of proceedings in rr 19.2 and 19.4. Under r 19.5, the Court may in the interests of justice permit any proceeding not mentioned in those rules to be commenced by originating application under that part. A practice of dealing with such applications under pt 19 is apparent from the case law.  I consider that procedure is appropriate in this case.  I direct, under r 19.5, that it be dealt with under pt 19, and the application is to be treated as an originating application under that part.

[3]      The second preliminary issue is that I must determine under r 7.46(2) whether this application can properly be dealt with without notice.  The persons who might be affected by the making of the order sought are those who would benefit on the intestacy which would result if the will is not declared valid. All of those persons are aware of the application and have consented to the order sought.   In those circumstances,  I am satisfied, under r 7.46(3) of the Rules, that the interests of justice require the application to be determined without notice.

[4]      Section 14 of the Act made a quite fundamental change to the law concerning the validity of wills.   Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid.  That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode of expression did not comply with the formalities that the law required.   Section 14 has been very beneficial in avoiding that outcome.  Its utility is demonstrated by the fact that it has been invoked in over 80 cases since 2007.

[5]      The experience of this Court has been that, for the most part, the families and other beneficiaries…

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Re Campbell (deceased) [2014] NZHC 1632
Case
[2014] NZHC 1632
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CaseChat Overview and Summary

The case involves an application for an order under section 14 of the Wills Act 2007 to declare a document valid as the will of the deceased, Mr Norman Rob Campbell. The application was made by his solicitor and chartered accountant, who prepared the document in question. The legal issues that the court was required to decide included the appropriate procedural steps, whether the application could be dealt with without notice, and whether the document in question expressed the deceased's testamentary intentions.

The court found that the appropriate procedure for this case was under Part 19 of the High Court Rules, and that the interests of justice required the application to be determined without notice as all interested parties consented to the order sought. The court also noted that section 14 of the Act is a remedial provision that allows for the validation of documents that do not comply with the formalities required for the execution of a valid will. The court considered the circumstances surrounding the preparation of the document, including the instructions given by Mr Campbell to his solicitor and accountant, and found that there was sufficient evidence to satisfy the ordinary civil standard of proof that the document expressed Mr Campbell's testamentary intentions.

The court directed that an order be made declaring the document valid as the last will of Mr Campbell. This decision highlights the importance of considering the individual circumstances of each case when determining whether a document expresses the deceased's testamentary intentions, and the court's willingness to give effect to the clearly expressed intentions of the deceased where possible.

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