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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Re Campbell (deceased) [2014] NZHC 1632
Case
[2014] NZHC 1632
Decision Date
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.