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High Court of New Zealand Decisions |
Last Updated: 16 April 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-658 [2014] NZHC 680
UNDER
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The Wills Act 2007
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IN THE MATTER
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of the ESTATE OF ROSEMARY ANN CLAYTON
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AND
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IN THE MATTER
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of an Application for an Order under Section 14 of the Wills Act 2007
declaring a Will valid by PAUL MARTIN MASKELL and DENNIS JOHN
CLAYTON
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Hearing:
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On the papers
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Appearances:
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JM Airey for Applicants
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Judgment:
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4 April 2014
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JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 4 April 2014 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Estate of R A Clayton [2014] NZHC 680 [4 April 2014]
[1] Rosemary Ann Clayton died on 5 February 2014. She was survived by
her husband Dennis Clayton and her daughter Angela Allwood.
[2] Mrs Clayton left a will dated 21 February 2003 (“the 2003
will”) in which Paul Maskell, a solicitor, and Mr
Clayton were appointed
executors and trustees. By the terms of the will, Mr Clayton was given the
right to occupy the home then
owned by Mrs Clayton for as long as he wished.
Upon Mr Clayton’s vacating the property, it was to be transferred to Ms
Allwood.
The will also divided the proceeds of Mrs Clayton’s
superannuation scheme between Mr Clayton, Angela, and Angela’s
children.
[3] Mrs Clayton was diagnosed with cancer. On 30 January 2014, she
gave instructions to Mr Maskell to prepare a new will to
take into account the
sale of her former home and the purchase of another and other changes related to
her financial affairs. Mr
Maskell made handwritten notes on a copy of the 2003
will and prepared a new will (“the 2014 document”) in accordance
with the new instructions. Unfortunately, Mrs Clayton’s health
deteriorated rapidly and the new will was never executed before
she
died.
[4] Mr Maskell and Mr Clayton have applied without notice for
leave to commence this proceeding by way of originating
application and seek a
declaration under s 14 of the Wills Act 2007 that the 2014 document prepared by
Mr Maskell on Mrs Clayton’s
instructions is a valid will. Angela
supports the application and I apprehend that her children will not be
disadvantaged by the
orders sought.
[5] I am satisfied on the evidence contained in the affidavits filed that: (a) the 2014 document appears to be a will;
(b) the document does not comply with s 11 of the Wills Act in that it was
not signed by Mrs Clayton in the presence of witnesses;
(c) the document came into existence in New Zealand; and
(d) the 2014 document expressed Mrs Clayton’s testamentary intentions
as given by her to Mr Maskell on 30 January 2014.
[6] In these circumstances:
(a) I grant leave to the applicants under r 19.5 of the High Court Rules to
bring this proceeding by way of originating application;
and
(b) I make an order under s 14 of the Wills Act 2007 declaring the 2014
document to be a valid will.
.............................................
Toogood J
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URL: http://www.nzlii.org/nz/cases/NZHC/2014/680.html