Smith

[2012] NZHC 2061

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1262 [2012] NZHC 2061

UNDER  The Wills Act 2007

IN THE MATTER OF     an application under section 14(2) of the

Wills Act 2007

IN THE ESTATE OF       Leon Kristopher Smith

Hearing:         On the papers Counsel:  J A Porter Judgment:      15 August 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 3pm on the 15th day of August 2012.

JUDGMENT OF MACKENZIE J

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

2007 (the Act) declaring a document executed by the deceased on 15 December 2009 to be a valid will.

[2]      The  deceased  was  a  solider  serving  with  the  New  Zealand  Army  in

Afghanistan.  He was killed there on active service on 28 September 2011.

[3]      On 15 December 2009,  the deceased  signed  a  document  which  had  been prepared on a standard will form prepared by Avon Publishing.  On the first page, which was substantially blank on the published form, quite detailed testamentary dispositions have been handwritten.   The will was signed by the deceased, and

witnessed  by  one  witness,  Mr  T W Thomas,  a  Justice  of  the  Peace,  living  in

RE SMITH (DECEASED) HC WN CIV-2012-485-1262 [15 August 2012]

Papakura.      Mr   Thomas’   evidence   is   that   the   deceased   visited   him   on

15 December 2009 to witness his will.  He has identified the document which is the subject of the application as being the document which was signed by the deceased in his presence, and which he witnessed.  The will does not comply with s 11 of the Act, in that there are not two witnesses.

[4]      The first question is whether this application may be dealt with on a without notice basis.  Rule 7.46 of the High Court Rules applies.  All persons who may be affected by the making of an order must have a proper opportunity to be represented. The persons who may be adversely affected by the making of an order are those who would benefit if the will were not declared valid.   That will be the persons who would benefit under a prior will, or on an intestacy.

[5]      There is, in the document, a disposition in these terms: “and the  rest to anyone  in  my old  will”.    The  affidavit  in  support  of  the  application,  from  the deceased’s brother, who is one of the executors appointed under the  document, asserts that he and solicitors instructed by him have made extensive inquiries as to the existence of another will  and  as  a result  of those  inquiries  he believes  the deceased made no other will.   In the light of that evidence as to inquiries made, I proceed on the basis that those who will be affected by the order are those who would otherwise benefit on an intestacy.

[6]      The deceased was not survived by a wife or a civil union partner, and left no issue.   He was survived by his parents, and by his siblings.   Under s 77 of the Administration Act 1969, his parents would take on an intestacy.  Both parents have signed consents to the making of the order.  They have been advised that they would become beneficiaries on an intestacy and they have been informed of their right to obtain legal advice and have declined to obtain advice.

[7]      In those circumstances, all persons who would be affected have indicated their consent.  I consider that the interests of justice require that the application be dealt with on a without notice basis.

[8]      The document sought to be declared valid appears to be a will, in that it has been prepared on a form intended to be used for that purpose.  It does not comply with s 11 because there is only one witness.  Accordingly, s 14(1) of the Act applies. Under s 14(2), the Court may make an order declaring the document valid if the Court is satisfied that the document expresses the deceased’s testamentary intentions.

[9]      I am satisfied that it does.  The deceased has made quite detailed dispositions which he clearly intended should come into effect on his death.   His actions in attending  on  Mr Thomas  to  have  his  signature  witnessed  with  some  degree  of formality, albeit not that required by law, indicate that the document expressed his testamentary intentions.

[10]     There  will  be  an  order  declaring  valid,  as  the  will  of  the  deceased,  the document  signed  by  the  deceased  and  witnessed  by  Mr T  W  Thomas,  JP,  on

15 December 2009,  annexed  as  exhibit  A  to  the  affidavit  of  Mr Thomas  dated

2 February 2012.

“A D MacKenzie J”

Solicitors:         Sievwrights Law, Wellington.