Estate of Hawkins [2012] NZHC 3092 (20 November 2012)

Last Updated: 29 November 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-00005996 [2012] NZHC 3092

IN THE ESTATE OF CAROL MARGARET HAWKINS Deceased

Hearing: On the papers

Judgment: 20 November 2012

_{JUDGMENT OF RODNEY HANSEN J}

_{Solicitors: Inder Lynch, P O Box 72045, Papakura.}

IN THE ESTATE OF CAROL MARGARET HAWKINS HC AK CIV-2012-404-00005996 [20 November 2012]

[1] The deceased, Carol Margaret Hawkins, died at Auckland on or about

23 September 2012.

[2] The applicants, James Grant Stringer and Linda Ruth Hill, apply for an order granting to them probate of the last will of the deceased dated 17 June 2012. They apply further for an order, pursuant to s 14 of the Wills Act 2007 (the Act), declaring the will valid. The application is required because the document relied on does not comply with s 11 of the Act. The two witnesses to the signature of the deceased were not together in her presence when she signed the document as required by s

11(4)(a).

[3] The two witnesses to the will have each sworn affidavits. Moira Fraser, of Auckland, teacher, deposes that the deceased signed the will in her presence after she had read the will to the deceased. She states that the deceased seemed to understand it thoroughly and to have full knowledge of its contents. She believed the deceased to possess full mental capacity as they had a lengthy conversation about such topics as an upcoming holiday together and the deceased’s garden. Ms Fraser states that the other witness to the will, Kathleen Burkill, was not present when the deceased signed the will.

[4] In her affidavit, Ms Burkill confirms that she was not present when the will was signed. She states that she later spoke to the deceased who acknowledged to her that she had signed the will earlier and that the signature on the document was her own. Ms Burkill deposes that she then witnessed the will in the presence of the deceased. She states that she believes the deceased has full possession of her mental capacity as they had a general conversation just as they usually would.

[5] Section 14 of the Wills Act 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] Having considered the document itself and the evidence of the two witnesses, I am satisfied that the document expresses the deceased’s testamentary intentions. The provisions of the will are straightforward; the deceased leaves all her estate to her daughter. Ms Fraser’s evidence satisfies me that she understood what she was doing. The absence of the second witness when the will was signed does not affect that assessment as Ms Burkill was able to obtain confirmation that the will was executed by the deceased and that she was in full command of her faculties.

[7] I make an order declaring valid the will of Carol Margaret Hawkins dated the seventh day of June 2012.