Estate of Keenan [2012] NZHC 2376 (14 September 2012)

Last Updated: 9 October 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-005267 [2012] NZHC 2376

UNDER Section 14 of the Wills Act 2007

IN THE MATTER OF the estate of GARY WILLIAM KEENAN, Deceased

BETWEEN JANE FRANCES KEENAN Applicant

Hearing: (On the papers) Judgment: 14 September 2012

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 14 September 2012 at 11.30 am, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date...............

_{Solicitors: Jackson Russell, Auckland}

Estate of KEENAN HC AK CIV-2012-404-005267 [14 September 2012]

[1] This is an ex parte application for an order declaring a document a valid Will.

[2] The applicant, Jane Frances Keenan, applies for an order declaring a handwritten aerogramme headed “Last Will and Testament of Gary Keenan 30/9/09” signed G Keenan” and witnessed “J P Joyce 30/9/2009” constitutes a valid Will of Gary William Keenan deceased.

[3] The deceased died at Nelson Hospital on 10 June 2012. The applicant is his sister. His only other surviving relative is a half brother, Philip William Keenan who consents to the application. The deceased was not married, did not have a partner nor any children. His parents pre-deceased him. I am satisfied that it is appropriate the application be brought by way of interlocutory application without notice. If the Will is not declared valid there will be an intestacy.

[4] In the event of an intestacy the applicant and Philip Keenan would take the assets of his estate as statutory beneficiaries.

[5] Section 14 of the Wills Act 2007 provides:

14 High Court may declare will valid

(1) This section applies to a document that—

(a) appears to be a will; and

(b) does not comply with section 11; and

(c) came into existence in or out of New Zealand.

(2) The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person's testamentary intentions.

(3) The Court may consider—

(a) the document; and

(b) evidence on the signing and witnessing of the document; and

(c) evidence on the deceased person's testamentary intentions;

and

(d) evidence of statements made by the deceased person.

[6] The document does not comply with s 11 in that it has been only witnessed by one person, Mr Joyce. The document, however, appears to be a Will. It is referred to as “Last Will and Testament of Gary Keenan”. More importantly it purports to dispose of the deceased’s interest in properties at Lucerne Road and Wakefield Street, properties in Auckland as well as certain personal property. It was clearly intended by the deceased as an expression of his wishes to be given effect following his death. The preparation and execution of the document appears to have followed a discussion between the applicant and him in 2009 before he took an overseas holiday. Mr Joyce has confirmed that he witnessed the Will in Auckland before the deceased went on the holiday to Queensland. I am satisfied it came into existence in New Zealand.

[7] Section 14(2) requires the Court to be satisfied that the document expresses the deceased’s testamentary intentions. The document on its face is short. It purports to deal with the deceased’s interest in real property and to make specific gifts of some personal property.

[8] I accept that in the context of the evidence of the applicant and Mr Joyce the document is clearly an expression of the deceased’s testamentary intentions. Further, it appears from the applicant’s evidence that the document was kept amongst his personal papers. I am also satisfied proper inquiries have been made and there is no evidence or suggestion of any other testamentary disposition by the deceased.

[9] In the circumstances I am satisfied that there may be an order in terms of s 14 of the Act declaring as a valid Will the document marked “A” annexed to the

_{affidavit of the applicant Jane Frances Keenan.}

Venning J