Thomson

[2018] NZHC 725

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-25

[2018] NZHC 725

UNDER

Part 19 of the High Court Rules and the Wills Act 2007

IN THE MATTER OF

An application to validate a will

BETWEEN

WILLIAM GORDON HEREWINI THOMSON

Applicant

Hearing:	On the papers
Counsel:	L Fischer for Applicant
Judgment:	19 April 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 19 April 2018 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Edmonds Judd, Te Awamutu

WILLIAM GORDON HEREWINI THOMSON [2018] NZHC 725 [19 April 2018]

[1]                 I have an application before me for validation of the Will of William Gordon Thomson, together with applications for leave to commence proceedings by way of originating application and an order dispensing with service of the application.

[2]I have resolved to grant all applications for the reasons that now follow.

Background

[3]                 Mr William Gordon Thomson died on 4 April 2017. He executed a document purporting to be a Will dated 26 May 2008. The Will conforms to the requirements of the Wills Act 2007, save in one respect. Gary Kenneth Guise and John Brendan Hartley both signed the Will as witnesses. However, William was not in the presence of Gary when he signed the Will. Accordingly, the purported Will does not comply with s 11(4) of the Wills Act 2007.

[4]                 Mr Thomson’s wife pre-deceased him, but he is survived by his eight children, all of whom have consented to the present application for validation of the Will. The estate is not large and the application is brought without notice to minimise cost, delay and formality.

[5]                 Counsel for the applicant has helpfully referred to authorities where a will has been validated in similar circumstances. Mallon J in Re Estate of Cleveland1 granted an application in circumstances where the witnesses to the testatrix’s signature were not together when the testatrix signed the document and it was not known whether the testatrix had already signed the document when it was witnessed or acknowledged that she had done so.

[6]                 In the present case, the document signed by Mr Thomson and properly witnessed by John Brendan Hartley clearly expresses Mr Thomson’s testamentary intentions. The error appears to be little more than a technical one. Given that all of the persons who otherwise might benefit from the Will consent to its validation, I am prepared to make the orders as sought. I note, for completeness, that the factual matters set out in this judgment are supported by affidavit evidence, including the

1      Re Estate of Cleveland [2016] NZHC 601.

evidence of Mr Thomson’s sons, Robert and William. They are also supported by written consents.

[7]There shall be orders accordingly.