Cottrell [2012] NZHC 1046 (17 May 2012)

Last Updated: 29 May 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-665 [2012] NZHC 1046

IN THE MATTER OF an application pursuant to Section 14 Wills

Act 2007

IN THE ESTATE OF: PHILLIP ALEXANDER COTTRELL Hearing: On the papers

Counsel: A J Rose

Judgment: 17 May 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 11.30am on the 17th day of May 2012.

_{JUDGMENT OF MACKENZIE J}

[1] The deceased died in Wellington on or about 11 December 2011. On or about

13 June 2010 he had signed a document purporting to be his last will. That document does not comply with s 11 of the Wills Act 2007, because it was witnessed by only one witness. This is a without notice application for an order under s 14 of the Wills Act 2007 declaring that document valid as the last will of the deceased.

[2] The first question for consideration is whether the application may properly be considered on a without notice basis, under r 7.46 of the High Court Rules. The most important consideration is whether all persons who may be affected by the making of the order have had a proper opportunity to be heard in relation to the order sought. That means that those who would succeed to the estate if the will were not declared valid need to be considered. The evidence establishes that the deceased was never married or in a relationship, and so left surviving no wife, civil union partner,

_{or de facto partner. The deceased had no children, and the evidence discloses that}

RE COTTRELL (DECEASED) HC WN CIV-2012-485-665 [17 May 2012]

the appropriate inquiries have been made in relation to the possibility of children. Both his parents survive. That means, that under s 77 of the Administration Act

1969, paragraph 5, the estate would be held in trust in equal shares for the parents.

[3] The parents, who live in England, have sworn an affidavit indicating that they are aware of the proceedings and of their interest if the will were not declared valid. They express the wish that the estate should be dealt with in accordance with the will.

[4] Counsel for the applicant has pointed out a minor deficiency in their affidavit in that the pages of the affidavit have not be initialled by the deponents, or by the person before whom the affidavit was sworn. Pursuant to r 9.79 of the High Court Rules, I direct that the affidavit may be received and used despite that irregularity in its form.

[5] Because the parents of the deceased, who are the persons who would benefit if the order were not made, have indicated their agreement to the making of the order sought, I consider that the interests of justice require that the application be determined without serving notice of it.

[6] I turn to the substantive application itself. The evidence establishes that in June 2010, the deceased discussed, with a close friend, some forthcoming travel and during that discussion it transpired that he had never made a will. He went on line and located a “do it yourself” will. He completed the document, then signed it and had it witnessed by his friend, who was named as personal representative in the will. The will left a specific bequest of the deceased’s collection of CDs and DVDs, and left the balance to the deceased’s sister. The deceased and his friend signed the document, in each other’s presence. The will is defective in that two witnesses were required.

[7] I am satisfied that the deceased intended that the document would be his will. I am also satisfied that the document expresses his testamentary intentions. I reach that view in the light of the document itself, and the affidavit evidence as to the circumstances of the signing and witnessing of the document.

[8] I make an order declaring valid, as the last will of the deceased, the original document dated 13 June 2010, a copy of which is annexed as exhibit C to the

_{affidavit of Sashi Kant Meanger sworn on 27 March 2012.}

Solicitors: WLC Brierley, Wellington

“A D MacKenzie J”