Paper Code: LAWS308-13Y (HAM) Bagi THE UNIVERSITY OF WAIKATO Te Whave Wananga o Waikato 2013 B SEMESTER EXAMINATIONS. DEPARTMENT Te Piringa - Faculty of Law PAPER TITLE Equity and Succession TIME ALLOWED ‘Three hours NUMBER OF QUESTIONS Six IN PAPER NUMBER OF QUESTIONS FOUR TO BE ANSWERED VALUE OF EACH QUESTION All questions are of equal value. GENERAL INSTRUCTIONS — SECTION A: Compulsory Answer BOTH questions SECTION B: Answer ANY TWO questions SPECIAL INSTRUCTIONS This is a RESTRICTED book examination. Candidates may bring CLEAN copies of the relevant legislation: Charitable Trusts Act 1957, Charities Act 2005, Property (Relationships) Act 1976, Family Protection Act 1955, Trustee Act 1956. Law Reform (Testamentary Promises) Act 1949, Wills Act 2007. “Clean” copies means no annotations and no attachments eg ‘post-it’ notes. Small section markers are permitted. Underlining and highlighting are permitted. Students are allowed to take in up to 5 sheets of A4 handwritten notes (writing allowed on front and back). CALCULATORS PERMITTED —_No electronic devices are allowed TURN OVER2 Paper Code: LAWS308-13Y (HAM) SECTION A (Compulsory) Answer BOTH questions QUESTION 1 (Answer all parts) a) Arthur made a will in 1982 which left his estate equally divided between his four brothers. In 2011 Arthur began a relationship with Betty who lived with him until he died in March 2013. Betty knew that Arthur was ill and she tried to persuade him to alter his will, to make her the sole beneficiary. She reminded Arthur many times in the last few months of his life that, as they were not married and had not been together for three years, she would not be entitled to any of his estate unless he altered his will. When Arthur explained that he wanted to leave something to his brothers, Betty wrote instructions for Arthur’s solicitor to create a new will so that there were small bequests to Arthur’s brothers with Betty as residuary legatee. Arthur did not want to upset Betty as her temper was bad although he admitted she did look after him very well. Arthur died without signing the new will. Betty wishes to present the will she wrote as Arthur’s final testamentary intentions. Explain the Court's power in this situation and whether it is likely that the document will be declared valid as Arthur's will. (7 marks) b) Major Charles Avery is 60 years old and he retired to the Royal Residence for Retired Servicemen (RRRS) after injury ended his army career, At the RRRS Charles lived independently but occasionally he needed help with everyday tasks such as cooking and housework. During these times his injury caused him to forget where he was and he believed he was still in the army, addressing nurses and other residents as though they were soldiers under his command. Charles decided to make his will and asked his solicitor, Don, to attend him to receive instructions. When Don arrived Charles gave him a list of assets and a list of beneficiaries with numbers to show who was to get what. However when Don questioned him about the car that was included among the assets Charles realized he no longer owned a car and quickly crossed it out. There was also a bequest to Charles’ brother Edward, but Edward had died several years before. When Don was convinced that Charles’s recollections of his assets and his family members were correct he told Charles he would have the will drawn up and return to execute it, Later Charles had another of his episodes and remained delusional for several days. Two days after Charles recovered Don returned and the will was executed. Six months later Charles died. His will is being challenged by Freda, Charles’ niece, who was left only $10. In his will Charles wrote that Freda was “a stuck-up snob” who never visited him. The $10 was for the bus fare to his funeral. Don is named as executor of Charles’ will and seeks advice about Freda’s challenge. (7 marks) ©) Gloria was married to Harry Harvard for 30 years until his death in 2012. In his will, executed in 2001, Harry left all his assets to the Harvard Family Trust. The beneficiaries of the trust are the couple’s three sons and six grandchildren, Gloria decided to choose Option B under s 61 Property (Relationships) Act 1976. At Harry’s funeral Inga declared herself to be Harry's daughter. Inga’s mother and Harry had met 23 years ago at a conference in Invercargill. Gloria was very shocked at this news. Inga told Gloria that Harry had made regular payments for Inga’s upkeep throughout her childhood and he had paid her student fees while she was at university. TURN OVERPaper Code: LAWS308-13Y (HAM) ‘They had met once a year on her birthday. Inga intends to lodge a claim against Harry’s estate under the Family Protection Act 1955. After the funeral Harry’s secretary, Janice, told Harry’s solicitor that she had worked on projects for Harry outside work for which she had not been paid. Harry had promised Janice that he would leave her $100,000 in his will in return for her extra work. She now knows that she has not been left anything in Harry’s will. Janice and Gloria come to you for advice in the light of what they have found out. (11 marks) (25 marks) QUESTION 2 (Answer both parts) Part 1 Peter Jones is an Orthopaedic Surgeon who practices in Hamilton. He has for many years been involved with people who have been injured through various types of accidents which have caused injury to the back, neck, shoulder or knee. Such people typically undertake manual work and consequently are unable to continue this work as a result of the injury. They are initially given accident compensation cover. However some years later when they are still unable to work they have their accident compensation entitlements terminated. The reason for this is that medical experts have opined that the on-going cause of their condition is caused by degenerative issues rather than the original injury. These are seen to be ageing issues which are not covered by the accident compensation scheme. The termination of accident compensation cover is very hard for such people. They are often in the fifties, have only ever done manual work and have no other skills. Consequently they are placed on sickness and benefits, Peter Jones has always advocated passionately for such people, considering such decisions of the Accident Compensation Corporation to be unfair and showing failure to appreciate the true nature of degeneration, Peter has been married but his wife died a number of years ago from cancer. They have no children, He has over the years made a good income as an orthopaedic surgeon. Feeling quite passionate about people who he refers to as ‘victims of degeneration’ Peter decides to establish a trust in his will to assist them. The property which is identified as his trust property is: -the proceeds of the sale of his Hamilton House; -the proceeds of the sale of his house at Raglan; -the investments contained in Government Bonds and three specific term deposits invested in the Bank of New Zealand; and -the proceeds of the sale of three specifically identified paintings by the artist Goldie. TURN OVER4 Paper Code: LAWS308-13Y (HAM) The clause which sets out the beneficiaries of the trust states: The trustees shall apply the net income from the sale of my house in Hamilton, the sale of my beach house at Raglan, my Government bonds and my three terms deposits with the Bank of New Zealand the proceeds from the sale of my three Goldie Paintings entitled ‘Grandmother’, ‘Grandfather’ and ‘Paramount Chief’ by making at their absolute discretion grants in such amounts, at such times and on such conditions as they fit, to people in the Waikato/Poverty Bay/ Bay of Plenty area who have: -been granted accident compensation cover; and have had their entitlements terminated on the basis of certain medical issues; and have as a result of the termination experienced some form of hardship. There are certain clauses making provisions for investment of the funds but the issue of focus is the clause outlined above. terminated Peter Jones duly dies and so the trust comes into effect. John Nag agreed g/be a trustee. He is quite excited about the assistance that the trust can provide. He I\gopeémed however about which people who have their accident compensation entitlements Would be eligible to be considered as beneficiaries. He comes to you for advice about the trust. Addressing and applying the three certainties say whether you consider that this amounts to a valid trust. Paying particular attention to the objects of the trust, say whether you consider whether sufficient guidance has been provided? (20 Marks) Part 2 Section 64A of the Trustee Act 1956 addresses a situation where variation of some kind needs to be made to a trust. In your own words explain what section 64A provides for and the sort of circumstances to which it applies. (S marks) (25 marks) TURN OVERPaper Code: LAWS308-13Y (HAM) SECTION B Answer ANY TWO questions QUESTION 3 (Answer all parts) Karl and Mel worked together at a racehorse breeding stud farm, Waikato Horses (WH). Neville is the vet who looked after the horses at WH, especially the mares and new foals in the foaling season, Neville approached the other two and suggested that they could pick out some promising young horses and buy them from WH. The plan was to take them to their ‘own establishment and train them for racing. Karl and Mel each gave $250,000 to Neville to buy a block of land that was set up to house and train horses. Neville’s contribution was to be the purchase of the horses and veterinary care. He told WH that two of their one year old horses were not fit enough to be racehorses but he offered to buy them to be trained as riding school horses. WH trusted Neville and allowed him to buy the horses at a cheap price, If WH had known the true potential of the horses they would have been sold for $100,000 each. a) Did Neville owe WH a fiduciary duty and, if so, has he breached his duty? (7 marks) Karl and Mel looked after and trained the horses in their spare time for one year. They named the horses Lightening and Speedy. Neville entered them for a race in Wellington. The horses were loaded onto a horse truck for the ride to Wellington and that was the last that Karl and Mel saw of Neville or the horses. When they tried to sell the block of land where they had kept Lightening and Speedy, they discovered that Neville had only leased it for the year for $10,000, Two years later Karl and Mel were watching some Australian horse racing on TV and they saw Lightening and Speedy winning their races. They discovered that between them Lightening and Speedy had already won races worth $150,000 in prize money. b) Did Neville owe Karl and Mel a fiduciary duty and, if so, has he breached his duty’? (8 marks) Neville bought shares in Air New Zealand with the money the horses won and the shares are now worth $175,000. Neville put Karl and Mel’s remaining $490,000 into a bank account in which he already had $2000 of his own money. Out of that account he took $2000 and bought a painting which turned out to be a long lost self-portrait by Picasso worth $750,000. Later, out of the same account, he took $5,000 with which he bought shares in a company that went into liquidation the following weekNevilleliked to go to the Bunny Club where he drank a lot and gambled, Of the $487,000 remaining in the account Neville bought gambling chips with $250,000. He lost $150,000 of it to the club. He gave $230,000 to his daughter, Dana, Dana used the money to build a house on a section she already owned. By the time Neville was found he had only $7,000 left. ©) Advise WH, Karl and Mel if they are likely to be able to recover any of the money and, if so, how much they may be able to recover. (10 marks) (25 marks) TURN OVER6 Paper Code: LAWS308-13Y (HAM) QUESTION 4 (Answer both parts) Part 1 ‘The Agape Trust is a large organisation based in Hamilton. There are two aspects to its work. ‘The first is to provide accommodation and rehabilitation to different vulnerable people-people with drug and alcohol additions, people with mental health issues and people who have had encounters with the law. This is demanding work and there are always funding issues. It undertakes this work in an old hostel through the Agape Rehabilitation Trust. ‘The other aspect is that the Agape Trust is attempting to develop a community or village type complex to provide accommodation and assistance for families who have encountered various difficulties and who require some support and assistance. This complex is in the process of development. It is managed through a separate trust, called the Agape Support Trust. While all of the four trustees serve on both trusts, there are separate trust deeds for the Support Trust and the Rehabilitation Trust. All of the four trustees are very committed to the work. They commit a considerable amount of their own resources into the work of the trusts. ‘The Whitehouse Trust is a trust which provides funding assistance to activities and agencies in the Waikato Region. It is a particularly well-endowed trust and this has enabled it to make significant contributions in a number of different areas. It has provided good funding to the Rehabilitation Trust on a number of occasions. This has been for its hostel work. ‘The Agape Trust wants to expand its village facilities through the building of two further houses. It requires $300,000 to do this. The Agape Trust approaches the Whitehead Trust for the $300,000 The Whitehead Trust after careful consideration agrees to make a grant for this amount, ‘The lawyer for Agape, Jonathan Reid, is an experienced trust lawyer. He has to facilitate the transfer. It is made clear in writing that the specific purpose of the grant of the $300,000 is to provide funding for the building of two houses on the complex. The money is accordingly transferred to the Agape Trust. In the meantime the Agape Rehabilitation Trust is having serious financial difficulties. There are a number of outstanding debts and major maintenance work which needs to be done to the hostel. The amount required to address these issues is around $250,000. The trustees having already placed a large amount of their personal resources into the hostel operation have no further resources to provide. The director of the Agape Trust approaches the lawyer. He asks that $250,000 of the $300,000 which was given for the housing development be used to address the debt and maintenance issues. He says that the housing development can occur later. The lawyer, Jonathan Reid, is opposed to this as the money was provided by the Whitehead Trust specifically for the development of the village facilities. The director however is desperate, as a result of pressure from creditors and health inspectors. He places considerable pressure on Jonathan Reid. Jonathan Reid who is himself under considerable work pressure at the time reluctantly agrees to the transfer. The money is duly transferred. Unfortunately the injection of the $250,000 is not sufficient and the Rehabilitation Trust has to cease work and wind up its operations. Sadly, because the four trustees have also expended a considerable of their own money to keep the hostel operating, their financial situation is also precarious to say the least. Indeed two trustees are facing personal bankruptcy. TURN OVERPaper Code: LAWS308-13Y (HAM) When the Whitehead Trust becomes aware of what has happened it is furious and demands that the money be repaid. Unfortunately the Agape Rehabilitation Trust having ceased operations has no available funds. Neither have the trustees. What cause(s) of action could the Whitehead trust undertake to recoup the money? Who would they focus on for liability and what would the basis of liability be? Explain the principles of this liability making reference to relevant case law. How strong would the cause of action be? (20 marks) Part 2 A Quitclose trust can be said to be a special type of automatic resulting trust, Briefly what is a Quistclose trust and why can it be held to be an automatic resulting trust? (S marks) (25 marks) QUESTION 5 (Answer Both Parts) Part 1 Alicia has recently opened a cupcake shop in Hamilton. The black, yellow and red colours in the window display, the bags and the wrapping paper all reflect Alicia’s other passion in life: the Waikato Chiefs. The signature cupcakes have black, yellow and red icing. It so happens that across the road is a patisserie that has been established for many years, that sells, amongst many other types of cakes and pastries, a range of cupcakes. The patisserie is owned by Brian and Jenny. Brian and Jenny are horrified when they realise the colours that Alicia is using in the window display are very similar to their own signature colours ~ black and red. The boxes used to package their products are very distinctive. Brian and Jenny believe that Alicia’s chosen colours for her shop will mislead customers, and even favour Alicia’s shop, which would lead to a drop in sales for their business. Advise Brian and Jenny as to the likely success in obtaining an interim injunction to prevent Alicia from wilising the black, yellow and red colours in any of her merchandising or products. (12.5 marks) Part 2 Briefly outline the purpose and the requirements of Search Orders and critically assess their appropriateness in proceedings against a defendant. (12.5 marks) (25 marks)8 Paper Code: LAWS308-13Y (HAM) QUESTION 6 (Answer EITHER A OR B) EITHER: A) Oscar Tap was a plumber. One year ago Oscar left his wife. Oscar was determined that his wife should not be able to claim maintenance payments for their two daughters so he created the Tap Trust, transferring his savings of $100,000 to the trust. The beneficiaries of the trust are Oscar and his daughters. Oscar appointed his friend Glyn as trustee, instructing him to let him have any of the trust property whenever he asked for it and to regard Oscar as the main beneficiary. Oscar then sold the house he bought after he left his wife, his vehicle and his, tools to the Tap Trust at one tenth of their value. He continues to live in the house and use the vehicle and tools for his work. Oscar was contracted to supply and fit new plumbing throughout a large old mansion owned by Steve Silver. Steve accepted Oscar’s quotation on the terms that Oscar would not exceed the price that he had quoted by more than 10%, Very soon it became clear to Oscar that he had made mistakes with his costing for the job in Steve’s mansion. The only way Oscar could stay in budget would be to install imported fittings that did not comply with the New Zealand Code for plumbers. When the job was finished everything looked fine but very soon water began to leak out of the pipes and some very expensive flooring and carpet was ruined when two baths and three showers turned themselves on when no one was in the house. TURN OVER Steve's insurance has refused to pay on the policy as the policy is only valid if registered tradesmen are employed. Oscar was not a registered plumber. Steve has contacted Oscar to tell him he will be sued if he does not pay for all the repairs. Oscar believes his assets and savings are protected against Steve’s lawsuit as they are all owned by the Tap Trust. Is Oscar correct in his belief that his assets will remain protected by the Tap trust? (25 marks) oR 8) In terms of establishing liability for knowing assistance, New Zealand has adopted the threshold of dishonesty as articulated by the Privy Council in Barlow Clowes International Ltd (in lig) v Eurotrust [2006] | All ER 333. Dishonesty has been applied in the two banking cases of US International Marketing Ltd v National Bank of New Zealand Ltd [2004] 1 NZLR $89 and Westpac New Zealand Ltd v MAP and Associates Ltd SC 98/2010 [16 August 2011] It has been suggested that the description of dishonesty does not fit comfortably with the conduct of the bank in both of the respective cases. Considering the conduct of the banks in both the US International and Westpac eases discuss whether you feel whether dishonesty is the appropriate description for the conduct of the banks. Further discuss whether you feel that the threshold of unconscionability as developed by Thomas J in Powell v Thompson [1991] 1 NZLR 597 would be a more appropriate means of evaluating the conduct of the banks and a more appropriate threshold for determining liability under the head of knowing assistance. (25 marks)EXTRACTS FROM LEGISLATION FOR Equity & Succession EXAMINATION FAMILY PROTECTION ACT 1955 3. a) Persons entitled to claim under Act— ‘An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons (a) _ the spouse or civil union partner of the deceased: (aa) ade facto partner who was living in a de facto relationship with the deceased at the date of his or her death: (b) The children of the deceased: (©) The grandchildren of the deceased living at his death (@)_ The stepchildren of the deceased who were being maintained wholly or partly or were legally entitled to be maintained wholly or partly by the deceased immediately before is death: (©) _ the parents of the deceased Claims against estate of deceased person for maintenance— If any person (referred to in this Act as the “deceased') dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion on application so made, order that any provision the Court thinks fit be made out of the deceased's estate for all or any of those persons. LAW REFORM (TESTAMENTARY PROMISES) ACT 1949 3. Estate of deceased person liable to remunerate persons for work done under promise of testamentary provision— a) Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may be reasonable, having regard to all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate, whether as creditors, beneficiaries, wife, husband, [[civil union partner,]] children, next-of- kin, or otherwise.PROPERTY (RELATIONSHIPS)] ACT 1976 2E Meaning of relationship of short duration + (1) Inthis Act, relationship of short duration means,— + (@) in relation to a marriage, a marriage in which the husband and wife have lived together as husband and wife— + (i) fora period of less than 3 years; or + i) fora period of 3 years or longer, if the court, having regard to all the circumstances of the marriage, considers it just to treat the marriage as a relationship of short duration: + (ab) in relation to a civil union, a civil union in which the civil union partners have lived together as civil union partners— + (i) fora period of less than 3 years; or + ii) fora period of 3 years or longer, if the court, having regard to all the circumstances of the civil union, considers it just to treat the civil union as a relationship of short duration: + (b) inrelation to a de facto relationship, a de facto relationship in which the de facto partners have lived together as de facto partners— + (j) fora period of less than 3 years; or + (ii) fora period of 3 years or longer, if the court, having regard to all the circumstances of the de facto relationship, considers it just to treat the de facto relationship as a relationship of short duration. (2) For the purposes of paragraphs (a)(i), (ab)(i), and (b)(i) of subsection (1), in computing the period for which the parties have lived together as husband and wife, civil union partners, or as de facto partners, the court may exclude a period of resumed cohabitation that has the motive of reconciliation and is no longer than 3 months. 11 Division of relationship property + (1) On the division of relationship property under this Act, each of the spouses or partners is entitled to share equally in— + (a) the family home; and + (b) the family chattels; and + (©) any other relationship property. (2) This section is subject to the other provisions of this Part 57 Application under Law Reform (Testamentary Promises) Act 1949 or Family Protection Act 1955 not precluded ‘Nothing in this Act prevents a person from making an application under the Law Reform (Testamentary Promises) Act 1949 or the Family Protection Act 1955 in respect of the estate of his or her deceased spouse or [[partner]}.] 61. Surviving spouse or [[partner]] may choose option— a) If 1 of the spouses or [[partners}] has died (except in a situation described in section 10D(1)),the surviving spouse or [{partner]] may choose option A or option B (2) Option A is to elect to make an application under this Act for a division of relationship property (3) Option B is as follows (@) _ toelect not to make an application under this Act for a division of the relationship property; and (6) _ ifthe surviving spouse or [[partner]] is a beneficiary under the will of the deceased spouse or [[partner]], to receive that property; and (©) __ if the surviving spouse or [{partner]] is entitled to a beneficial interest on the intestacy or partial intestacy of the deceased spouse or [[partner]], to receive that interest 62 Time limit for making choice (1) A surviving spouse or [[partner]] who wishes to choose option A or option B must make that choice within the following time limits: (@) if the estate of the deceased spouse or [[partner]] is a small estate (as defined in section the choice must be made— (i) no later than 6 months after the date of the death of the deceased spouse or [[partner]]; or (ii) if administration of the estate is granted in New Zealand within that period, no later than 6 months after the grant of administration, — whichever is the later: (b) in any other case, the choice must be made no later than 6 months after administration of the estate of the deceased spouse or {[partner]] is granted in New Zealand. (2) Regardless of subsection (1), but subject to subsection (4), the Court may extend the time for making that choice after hearing— (a) the applicant; and (b) any other persons who the Court considers should be heard. (3) The Court's power under this section extends to cases where the time for making the choice has already expired, including cases where it expired before the commencement, on 1 February 2002, of the Property (Relationships) Amendment Act 2001 (4) The Court may not grant an extension of time under subsection (2) unless the application for the extension is made before the final distribution of the estate of the deceased spouse or [partner]. 68. Effect of failure to make choice— (1) Ifa surviving spouse or {[partner]] does not choose option A or option B, in the manner required by section 65 and within the time required by section 62(1) (or any extension of that time granted under section 62(2)), then the surviving spouse or [[partner]] is to be treated as6. @ @) having chosen option B Chosen option may be set aside— If. surviving spouse or [partner] has chosen option A or option B, the Court, on application by that spouse or [partner], may set that choice aside The Court may set aside a choice of option only if— (a) _ itis satisfied that any of the following apply (i) that the choice of option was not freely made ii) that the surviving spouse or [partner] did not fully understand the effect and implications of the choice: (ii) that since the choice of option was made, the surviving spouse or [partner] has become aware of information relevant to the making of a choice of option: (iv) that since the choice of option was made, a person (other than the surviving spouse or Ipartner]) has made an application under the Law Reform (Testamentary Promises) Act 1949 or the Family Protection Act 1955 in respect of the estate of the deceased spouse or [partner]; and b) having regard to all the circumstances, itis satisfied that it would be unjust to enforce the choice of option 88 Who can apply a) Q) @) ‘The following persons may apply for an order under section 25(1)(a) or (b) or an order or declaration under section 25(3): (a) _ the surviving spouse or [[partner]]: (b) any person on whom conflicting claims in respect of property are made by the surviving spouse or [[partner]] and the personal representative of the deceased spouse or [partner]. ‘The personal representative of the deceased spouse or {[partner]] may, with the leave of the Court, apply for an order under section 25(1)(a). The Court may grant leave only if it is satisfied that refusing leave would cause serious injustice. The following persons may apply for an order under section 25(1)(b) or an order or declaration under section 25(3): (a) _ the personal representative of the deceased spouse or ([partner]]: (b) _ the Official Assignee in Bankruptcy of the property of either spouse or [[partner]}: (©) an appointee (within the meaning of section 153 of the Insolvency Act 1967) in whom the estate of a deceased spouse or {[partner|] vests on an order being made under section 157 of that Act. Wills Act 2007 11 Requirements for vali ty of wills© (1) A will must be in writing, (2) A will must be signed and witnessed as described in subsections (3) and (4). (3) The will-maker must— + (@) sign the document; or + (b) direct another person to sign the document on his or her behalf in his or her presence. (4) At least 2 witnesses must— + (a) be together in the will-maker’s presence when the will-maker— + (i) complies with subsection (3); or + Gi) acknowledges that— + (A) he or she signed the document earlier and that the signature on the document is his or her own; or + (B) another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and + (b) each sign the document in the will-maker’s presence. (5) As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker's presence, the following: ‘+ (a) that he or she was present with the other witnesses when the will-maker— (i signed the document; or + (ii) acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or * (iii) directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or + (iv) acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and + (b) that he or she signed the document in the will-maker's presence. (© No particular form of words is required for the purposes of subsection (5). 14 High Court may declare will valid + (1) This section applies to a document that— = (a) appears to be a will; and + (b) does not comply with section 11; and + (c) came into existence in or out of New Zealand, (2) The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person's testamentary intentions. (3) The court may consider— + (@) the document; and + (b) evidence on the signing and witnessing of the document; and + (evidence on the deceased person's testamentary intentions; and + @ evidence of statements made by the deceased person 31 Correction + (1) This section applies when the High Court is satisfied that a will does not carry out the will-maker's intentions because it— + (a) contains a clerical error; or + (b) does not give effect to the will-maker's instructions, (2) The court may make an order correcting the will to carry out the will-maker's intentions.