Stephenson v Rockell HC Auckland CIV 2010-441-596

[2010] NZHC 2239

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2010-441-000596

UNDER  In the Estate of Gordon Andreas Hansen

BETWEEN  GEORGE BRUCE STEPHENSON Applicant

ANDMARTIN VENN ROCKELL MICHAEL JAMES WAITE First Respondents

ANDPAUL GEORGE TAYLOR AND OTHER BENEFICIARIES

Second Respondents

Hearing:         13 December 2010

Counsel:         H R Grayson for Applicant

No appearance for the first and second respondents

Judgment:      13 December 2010

ORAL JUDGMENT OF MacKENZIE J

[1]      This  is  an  application  for  probate  in  solemn  form  with  an  associated application for an order declaring the will valid under s 14 of the Wills Act 2007 (the Act).

[2]      The application was made in solemn form because an earlier application for probate of the will in common form was declined on the basis that the execution of the will did not comply with the requirements of s 11 of the Act.

[3]      Dealing first with the application for an order declaring the will valid.  The document of which probate is sought is a hand written document apparently prepared by the will maker.  The circumstances of its execution are described in an affidavit

by the executor, Mr Stephenson.   Mr Stephenson is a company director and also a

Re Hansen - STEPHENSON V ROCKELL HC NAP CIV-2010-441-000596 13 December 2010

justice of the peace who has known the deceased for some 40 years.  The deceased came to see him in his office in about March 2010 concerning his will.   He was brought in by a friend.  He says the deceased wanted to sign a will he had prepared in his own hand and which he showed to Mr Stephenson.  He says that at the bottom of  the  first  page  the  deceased  had  signed  his  name  and  dated  the  document. Mr Stephenson says that he and the other witness then signed under that signature as witnesses.

[4]      Those circumstances indicate that the requirements of s 11 were not fully complied with.  Under subss (3) and (4), the will maker must sign the document in the presence of at least two witnesses.  The affidavit is not entirely clear as to exactly when the will was signed by the deceased.  Mr Stephenson’s affidavit refers to him as having wanted to sign a will prepared in his own hand and then later indicates that the deceased had signed his name.  It is not entirely clear whether the signature was in the presence of the witnesses or not.

[5]      In  any  event  a  further  requirement  of  s 11(4)  was  not  met  in  that  the witnesses must each state on the document in the will maker’s presence that the witness was present when the will maker complied with the requirement as to signature. That was not done.

[6]      Both of those defects, if they are defects, in the compliance with the s 11 requirements are capable of being overcome by a declaration that the will is valid. This Court may make such an order under s 14(2) if it is satisfied that the document expresses the deceased person’s testamentary intentions.   I am satisfied that the document does represent the deceased’s testamentary intentions.  The document is described as the deceased’s last will and testament and the fact that he had gone to Mr Stephenson for the express purpose of obtaining as a witness a person who was clearly in a responsible position in society and a justice of the peace indicates the degree of formality which the deceased saw as attaching to his signature of the document.

[7]      There is no evidence which would suggest to the contrary.  Orders for service were made directing that the executors and beneficiaries of two earlier documents

which had been executed as wills were made.  None of the persons who have been so served, and who would be the only persons who could be affected by the making of a declaration that the will is valid, have taken any substantive steps in these proceedings.  An appearance for the purpose of reserving rights was made by the executors of one of those earlier documents.  The absence of any evidence to suggest that this may not have been intended by the deceased as a will or as containing his testamentary intentions leads me to the conclusion that the grounds for declaring the will valid until s 14(2) of the Act are made out. There will be an order accordingly.

[8]      That brings me to the question of whether probate should now be granted of that document.  The document having now been declared valid it becomes the last will and probate of that document should now be granted.  There is no reason why that grant should not be made at this stage.  There will be an order granting probate in solemn form of that document.

[9]      There will be an order that the reasonable costs of the applicant be met from the estate.

“A D MacKenzie J”

Solicitors:         Gresson Grayson, Barristers and Solicitors, Hastings for Applicant

McKay Mackie, Barristers and Solicitors, Waipawa for First Respondents