(New Zealand Court of Appeal) The Court admitted a will to probate, omitting words naming the testatrix. Fair J said: ‘but it is submitted on behalf of the defendants, who are entitled under the intestacy, that it is not admissible to probate on the ground that it was not executed animo testandi- that is, that the testatrix did not intend to sign this document and that this document was never intended by her or anyone to be her will. This would appear, upon careful examination, to be a very technical basis for its rejection, and upon an exact appreciation of the true facts, to lack substance. True, the physical document was not the paper that the testatrix intended to sign, but it was a paper that contained everything that she wished included in the paper she intended to sign except the Christian names of her sister. She adopted it believing that it expressed her intentions in every respect. It does in most, and can be read as carrying out her intentions. It appoints the executor she intended to appoint in the exact terms she intended to appoint it. That in itself if it stood alone would be enough, apart from this formal objection, to entitle it to probate . . It also disposes of the residue after the life interest in the exact terms except for the Christian name. There is no doubt that she intended the document to which she put her signature to operate as her will.
If she had intended to sign the document in the original typewriting, and she had, by mistake, been given a carbon copy, she would have been executing a paper physically different from that which she intended to sign, but if it had contained a duplicate carbon copy it appears unarguable that document in carbon would be invalid on that ground. The present will seems to us to differ from such copy only in degree and not in substance. No doubt the circumstances of the recital with the wrong Christian name would call for explanation . . But the fact that the paper put before the testatrix was different from that which she thought she was signing should not, we think, prevent that part of the document which she wished and believed, and which was, in fat, included, being her testamentary act. The testatrix really did know and approve of the effective provisions contained in it.’
Judges:
Fair J
Citations:
[1946] NZLR 614
Cited by:
Cited – Marley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Commonwealth
Updated: 06 May 2022; Ref: scu.428466