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Wills Case Summary Notes

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Wills Extra Case Summaries:

thread of business from beginning to end, but if he is able to

Bishop v O'Dea (1999) 18 FRNZ 492: (Facts only)

say to himself 'I have settled that business with my solicitor,

The Byrne estate is worth nearly 4.5m, and the farm has

and I accept the paper put before me", that is sufficient.

been in the Byrne family for three generations. The Bishops Will held to be okay. were his immediate neighbours. Mr Byrne treated the Bishops' home as his second home. He developed a deep

Execution and Alteration/Formalities:

regard for his adopted family. Mr Byrne gave instructions for his will and signed it on the Re Estate of Hickford 13/8/09 MacKenzie J, HC Napier, same day. He was in the Bishops' house, collapsed, lost


consciousness. Collapse may have been the result of heart This is a "without notice" application for an order under problems or a stroke. Seen by his solicitor Mr O'Dea who

s14 of the Wills Act 2007 to declare a will valid.

had been called in at his request to take instructions for a

Deceased was diagnosed with terminal cancer, discussed

will. After taking Mr Byrne's will, he went home, typed up, his will with his partner Mrs Young. Indicated that he and returned to the hospital where it was signed at 6pm.

would like to make a new will, and they agreed. Appointed his daughter and Mrs Young executors, and discussed this

All the doctors who gave evidence agreed that Mr Byrne

with them.

did not have testamentary capacity when he was first admitted to the hospital. And it was doubtful whether he

Prepared the will, and sent letter. Mr Hickford did not

had it at 12 noon. Agreed that the rate of recovery would

follow that up. Letter and document stayed on the dining

vary from case to case. It was impossible to say when his

room table. S14. There is a document that appears to be a

testamentary capacity returned, or that it ever did.

will. It is in the form of a will and includes all provisions usual in a will. The only respect in which the document

Judge held that the Bishop family had not discharged the

does not appear to be a will is that it is not signed and

duty to prove testamentary capacity. Will was invalid. Judgewitnessed as required by s11(2). clearly indicated that he was not satisfied that Mr Byrne had testamentary capacity at the time of execution.

The fact that the deceased did not make an appointment to sign the will might be consistent with any one of three

The rationality of a will on its face does not necessarily

broad possibilities:

provide much evidence of capacity, especially if the will is

1. That he had changed his mind

professionally drawn. The medical evidence pointed quite

2. That he overlooked or forgot about signing the will

strongly to the conclusion that Mr Byrne had probably not

3. That he did not think he had to do anything further.

regained testamentary capacity at the time he signed his

I consider that to meet the statutory test, the case must fall


within the third possibility. Clearly the first possibility would mean that the document did not express any

Parker v Felgate (1883) 8 P 171:

testamentary intentions. The second possibility might not

Ilness of the lady took a fatal turn while Mr Parker was

meet the statutory test. I consider that the third possibility is

away. After the partial coma had set in she answered

the correct one.

questions by makng signs.

The deceased did not have any change of mind. The

'This is your will, do you wish this lady to sign it', and she evidence of Ms Young and Ms Hickford is indicative of a answered yes. Dr Tanner added "i have no doubt about it, as man who was contientiously putting his affairs into order far as I could judge, she understood what she did.

before his death. It is unlikely that he failed to follow up the

A person might no lnger have capacity to go over the whole matter through inadvertence. He spoke of the will as if it

had been finalised. Satisfied that the document does reflect order before he died. There was no evidence that the legal the testator's testamentary intentions.

consequences of selecting no were explained to him. The will is cancelled.

Revocation by Operation of Law: Public Trust v Stirling [2009] 3 NZLR 693 (HC):

Interpretation of Wills and Trusts:

Andrew Stirling made a Will on 10 July 2007. At that time Re Green [1975] 1 NZLR 475: he was engaged to marry Kiri Brown and knew that he was The testator had been married twice but had no children. dying of cancer. On 17 November 2007 they married, he

His second wife Doris Green survived him. Divided the

passed away on 27 December 2007. The issue is whether

estate into thirds, one third to wife's sister, then 2/3 divided

Andrew made his will 'in contemplation of marriage'.

into fourteen equal parts for his sisters and nephew. Three possibilities arise for consideration regarding the

S18 Wills Act 2007. A will is revoked if the will maker

three shares that have failed to vest absolutely:

marries or enters a civil union. (1) does not apply if the will

1. An intestacy as to all three

expressly says that it is made in contemplation of a

2. An intestacy as to Mrs Bray's share only

particular marriage/civil union, or the will does not

3. All three shares going proportionately to the

expressly say that it is made in contemplation of a

surviving beneficiaries.

particular marriage/cu but the circumstances existing when it was made show clearly that it was made in contemplation When there is a gift to a number of persons who are united of a particular marriage or cu.

or connected by some common tie, and you can see that the testator was looking to the body as a whole rather than the

Marriage represents a change in circumstances of the

members constituting the body as individuals, and so you

testator associated with new personal and financial

can see that he intended that if one or more of that body

responsibilities which may not be reflected in the earlier

died in his life-time the survivors should take the gift

will. I take the view that whether Andrew made his will in between them, there is nothing to prevent your giving effect contemplation of marriage to Kiri must be determined as a to the wishes of the testator. question of fact, from surrounding circumstances. Reading the present will as a whole I do not think that the Andrew refused to marry before Stewart Island. When they testator was looking on his wife's sister, his sisters and his got back they organised to Marry. Had a ring. Andrew only named nephew as one group or class. He makes a primary had two months to live. They were married, and spent as

allocation of 1/3 to his wife's sister, and 2/3 to his blood

much time together as possible. Andrew had made the will relations. The testator was regarding his sisters and his at the Public Trust with the Wills Expert System. 'Are you nephew as a group. making this will in contemplation of a particular marrige'. He selected no.

Glass v Anthony 9/7/08 Fogarty J, HC Christchurch, CIV-

The will gives personal effect to parents, lets kiri live rent


free in the house for two years, and the residue split 50/50 The will falls to be construed according to the Wills Act to Kiri and his parents.

2007, in particular s32. External evidence. This section applies when words used in the will make the will or part of

I am satisfied that when Andrew went to the public trust he it was aware that he had vary little time to live. I consider it

(a) meaningless; or

likely that he did not know his life span was so short. His

(b) ambiguous on its face

main reason for making the will was to put his affairs in

(c) uncertain

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