Pike v Gardner

[2015] NZHC 724

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV2014-485-010932 [2015] NZHC 724

BETWEEN

DAWN ALISON PIKE

Applicant

AND

COLIN CLIVE GARDNER AND VICTORIA FENWICK Respondents

Hearing:	16 April 2015 (On the papers)
Appearances:	JWA Johnson for Applicant
Judgment:	16 April 2015

JUDGMENT OF DUNNINGHAM J

[1]      This is an application under s 14 of the Wills Act 2007 for an order declaring that  the  draft  will  of  Gordon  Stanley  Marshall  (the  deceased)  prepared  by Colin Clive  Gardner  on  or  around  15  July  2014,  together  with  the  deceased’s handwritten notes, are collectively the valid last will and testament of the deceased.

[2]      The  affidavit  of  Mr  Gardner,  the  deceased’s  solicitor,  explains  that  the deceased gave Mr Gardner instructions to revoke his will dated 5 January 2010 and execute a new will. A draft will was prepared by Mr Gardner in accordance with the deceased’s instructions and sent to the deceased on 15 July 2014.   The deceased made handwritten amendments to the draft will and, those changes were discussed with Mr Gardner who agreed to make those amendments and send the revised will to the deceased for his comments.

[3]      Prior to Mr Gardner completing the discussed amendments to the will, the deceased passed away on 27 July 2014.   At no time prior to his death did the

deceased  suggest  to  Mr  Gardner  that  the  amendments  he  had  requested  on

PIKE v GARDNER AND FENWICK [2015] NZHC 724 [16 April 2015]

22 July 2014 no longer reflected his testamentary wishes.  Mr Gardner also confirms that the deceased was of sound mind and he had no reason to question his testamentary capacity.

[4]      All beneficiaries of the will of the deceased, as well as those affected by being made an incoming executor or an outgoing executor have each consented to the application being made and have confirmed that they do not wish to oppose the application.  Consents for each affected party are annexed to Mr Gardner’s affidavit.

[5]      Yvonne  Anne  Meads,  the  only  beneficiary  adversely  affected  by  the application, because she is no longer a beneficiary under the amended draft will has obtained legal advice in respect of the application and has confirmed that she does not intend to oppose any application to admit the draft will to probate.

[6]      Given the evidence confirming that the unsigned draft will and the deceased’s handwritten notes express the deceased’s testamentary intentions and that all affected parties consent to the application, and having regard to the remedial nature of s 14 of the Wills Act 2007, I order that:

(a)      Pursuant   to   s   14   of   the   Wills  Act   2007,   the   draft   will   of Gordon Stanley      Marshall      (the      deceased)      prepared      by Colin Clive Gardner on or around 15 July 2014, together with the deceased’s handwritten notes, are collectively the valid last will and testament of the deceased; and

(b)      The costs of this application are to be paid out of the deceased’s

estate.

Solicitors:

Wynn Williams, Christchurch