Vincent v Brockett HC Auckland CIV-2011-404-388

[2011] NZHC 715

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-388

UNDER  the Wills Act 2007

IN THE MATTER OF     an application for Probate in solemn form

BETWEEN  KENNETH JOHN VINCENT Plaintiff

ANDDOROTHY BROCKETT First Defendant

ANDELIZABETH DAVIS Second Defendant

Hearing:         By memorandum Appearances: Mr J D Turner for Plaintiff Judgment:  23 February 2011 16:00:00

JUDGMENT OF LANG J

[on application for probate in solemn form]

This judgment was delivered by me on 23 February 2011 at 4 pm, pursuant to Rule

11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

VINCENT V BROCKETT HC AK CIV-2011-404-388 23 February 2011

[1]      This is an application for probate in solemn form in respect of a document purporting to be the last will and testament of Linda Margaret Vincent, who died at Auckland on or about 17 May 2010.

[2]      The document in question is dated 6 July 2006.  That fact, coupled with the fact that Ms Vincent died after 1 November 2007, means that some, but not all, of the provisions of the Wills Act 2007 (“the Act”) apply to the document.  In order to be valid as a will, it must satisfy s 11 of the Act, which provides as follows:

11     Requirements for validity of wills

(1)     A will must be in writing.

(2)     A will must be signed and witnessed as described in subsections (3)

and (4).

(3)     The will-maker must—

(a)     sign the document; or

(b)     acknowledge that a person directed by the will-maker signed the document in the will-maker's presence.

(4)     At least 2 witnesses must—

(a)     be together in the will-maker's presence when the will-maker complies with subsection (3); and

(b)     each state on the document, in the will-maker's presence, that the witness was present when the will-maker complied with subsection (3); and

(c)     each sign the document in the will-maker's presence.

[3]      Section 40(2)(i) of the Act provides that, in the case of documents created before 1 November 2007, s 11(3)(a) and (b) must be read as if the words “at its foot or end” appeared at the end of both subsections.

[4]      The document is in handwritten form and reads as follows:

July 06 2006

This is the last will and testament of Linda Margaret Vincent, and I make

Kenneth John Vincent executor of my estate.

I leave to	(Sara Lee Ann Vincent	35,000.00 dollars
Thirty five	(Amy Kate Vincent	35,000 .00 dollars

thousand	(Andrew Vincent	35,000.00 dollars
(Frances Forsythe Stevens	35,000.00 dollars

My gold bracelet of South African coins to Sara Vincent. The balance of my estate shall go to Kenneth John Vincent.

L. M. Vincent. Witness     Dorothy Brockett J.P.  15 18 Cromdale Ave

Howick

Witness        E Davis

Elizabeth Davis, 21 Grassways Ave, Pak.

[5]      The opening words of the document make it clear that Ms Vincent intended it to be her last will and testament.   The document also appoints an executor, and makes testamentary dispositions of the type that one would expect in a will.

[6]      Ms Vincent’s signature is situated at the end of the body of the document, and it appears to have been witnessed by two persons who have also signed their names and recorded their addresses.   Each of those persons has described herself as “Witness”.  The applicant has now filed affidavits by both these persons confirming that they witnessed Ms Vincent execute the document, and that they were together with each other and Ms Vincent in the same room when this occurred.

[7]      Taken together, these factors persuade me that the document is in fact Ms Vincent’s  will  and  that  it  was  executed  and  witnessed  appropriately.     The beneficiaries under the will also consent to distribution of the assets of the deceased in accordance with the terms of the will.

[8]      For these reasons I declare the document valid as a will under the Wills Act

2007 and grant probate of the will to the applicant.

Lang J

Solicitors:
McVeagh Fleming, Albany