//
you're reading...
will validation, Wills

Execution clause reminder

A valid will requires, amongst other things, two witnesses to the signature of the will-maker (see Wills Act, s 11).  Where a will is signed by a will-maker and the requisite two witnesses, this by itself is insufficient to confirm that the witnesses were present when the will was signed.  The standard will attestation reads:

SIGNED by the will-maker

[FULL NAME]

in our presence together and attested by us together (his/her) presence:

The importance of the correct form of attestation is highlighted in the recent decision in Estate RT Bennett where the law firm that prepare the will excluded the attestation clause.  The will was not probated due to the absence of the attestation clause and subsequently an application was made for the will to validated under s 14 of the Wills Act.

In a helpful and usefully researched decision, Palmer J held that while the will did not provide evidence that it was signed in the presence of witnesses (and as both had died, neither could give evidence that they had witnessed the will-maker’s signature):

“[1]…In these circumstances, I do not consider s 14 of the Wills Act 2007 (the Act) is available as a means of declaring the will valid. Rather, applying the presumption of due execution, I consider the evidence provided by the executors of the will demonstrates the witnesses were most likely present when Mr Bennett signed the will. This means the validity requirements in s 11 of the Act are satisfied and I declare that to be so. That is a decision that can, ordinarily, be made by the Probate Unit of the High Court Registry.”

The decision goes on to consider the application of  rr 27.16 and 27.17 of the High Court Rules 2016 (see below) and whether r 27.16(2) excludes the possibility that evidence relating to the execution of a will can be provided by anyone other than an attesting witness or other person present at execution.  The decision also considers whether the rules override the presumption of due execution, which is explained in Dobbie’s Probate and Administration Practice as follows:

27.34.2 Presumption of due execution

If evidence cannot be obtained to prove due execution and the will appears on its face to have been duly executed, the court will presume the will was properly completed. This applies where there is a defective attestation clause, or no attestation clause (In the Goods of Frances Peverett [1902] P 205 (Fam); In re Fergus (1914) 34 NZLR 48), or where there is a conflict of evidence between the witnesses to the will (In re Irwin [1920] NZLR 440 (SC)). The court may apply the presumption of due execution where evidence of due execution cannot be obtained, and there is no suspicion that fraud has occurred (Re Young [1969] NZLR 454 (SC))

The decision goes on to consider the relevant case law and the need for a degree of pragmatism in such matters.

The judgment concludes:

[21] I do not consider s 14 is the correct legal route to determining the validity of the will in these circumstances. Section 14 is available only when a document does not comply with s 11, according to s 14(1)(b). This includes the requirement in s 11(4) that Mr and Mrs Ostermann were together in Mr Bennett’s presence when he signed the document and that they signed it in Mr Bennett’s presence. But the application under s 14 here proceeds on the basis there was not a sufficient prima facie evidential foundation that the requirement was met. Instead, they provide other evidence to support an inference that it did.

[22] The evidence provided demonstrates, on the balance of probabilities as a matter of inference, that the document was signed in the presence of Mr and Mrs Ostermann. If I accept that evidence, as I do, then s 11(4) of the Act is satisfied and s 14 is not available. I do not regard r 27.16 as limiting the High Court’s ability under the 2007 Act, as amended in 2012 to conform with pre-existing law, to

[23] That means there is no need to validate the will under s 14. Indeed, I cannot, since s 14(1)(b) requires me to be satisfied that the document does not comply with s 11, including s 11(4). Instead, on the basis of the evidence offered by the applicants, I am satisfied the document complies with s 11(4).

[24] The effect of this is the same as the effect sought by the applicants: the document is valid. But, in future such cases, applications under s 14 will not be required. Sufficient evidence of compliance with s 11(4) will be required, on the basis of which the presumption of due execution may be applied. Other parties with a relevant interest will need to be notified and have the opportunity to object. The evidence can be assessed by the Probate Unit of the Registry. Irregularities in form can be addressed under rr 1.5 and 1.9, without necessarily requiring rejection of documents. If a Registrar is in doubt about the correctness or legitimacy of an application, he or she can refer an application to a judge for consideration.

The real take home message though is simply – get the attestation right in the first place.  While defective attestation can be cured, prevention would be better.

 

 

 

 

References:

  • Wills Act 2007
  • Estate RT Bennett [2017] NZHC 2481
  • In the Goods of Frances Peverett [1902] P 205 (Fam); In re Fergus (1914) 34 NZLR 48
  • In re Irwin [1920] NZLR 440
  • Re Young [1969] NZLR 454

 

High Court Rules

27.16 Evidence as to execution

(1) A person who knows the relevant facts personally may provide the evidence required by rules 27.17 to 27.28.

(2) If the evidence relates to the fact, date, manner, or circumstances of the execution of a will, the person providing the evidence must be—

(a) an attesting witness; or

(b) a person present when the will was executed.

(3) If the authenticity of the signature of the will-maker or an attesting witness is in doubt, the court may accept evidence from any appropriate person to prove that the signature is in the handwriting of the will-maker or the attesting witness.

(4) If the application is unopposed, evidence given under this rule must be given by affidavit, and form PR 12 may be used.

27.17 Evidence of validity

Each of the following is evidence that a will is valid:

(a) a statement by each of the witnesses on the will as provided in section 11(5) of the Wills Act 2007:

(b) evidence given under rule 27.16 satisfying the court that the will complies with section 11(3) and (4) of the Wills Act 2007:

(c) a copy of an order of the court made under section 14 of the Wills Act 2007.

Discussion

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: