GLADWIN & Ors V PUBLIC TRUST & Ors HC AK CIV 2010-404-001666

GLADWIN & Ors V PUBLIC TRUST & Ors HC AK CIV 2010-404-001666

The draft will document, prepared by solicitors, found among the deceased's papers with the deceased's handwriting inserting beneficiaries' middle names and supported by contemporaneous hospital statements, was made after 1 November 2007 and expresses the deceased's testamentary intentions; accordingly the High Court declared the document valid under s 14 Wills Act 2007 and appointed the Public Trust as executor/trustee to administer the estate and distribute the residue in five equal shares to the named beneficiaries.

Citation
openlaw-20ca930c_2822_4ad9_b9f2_bc002ab7d544.pdf
Parties
Applicant Nephew: James Netzler Gladwin; Applicant Niece: Jennifer Netzler Gladwin; Applicant Niece: Carol Lucy Ireland; Applicant Niece: Caroline Agnes Loto; First Respondent Proposed Executor/trustee: Public Trust; Second Respondent Beneficiary/opponent: Gustaf Adolf Netzler; Third Respondent Named Executor/trustee in Draft Will: David Phillip Selkirk; Third Respondent Named Executor/trustee in Draft Will: Anthony Martin Fortune
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 August 2011
Procedural Posture
Will Validation / Probate / Judgment (reserved Decision Delivered)
Outcome
Draft will declared valid under s 14 Wills Act 2007; Public Trust appointed executor and trustee; estate to be divided equally among five named beneficiaries; costs split 50/50 between the estate and the second respondent on a 2B basis unless otherwise agreed or ordered.
Legal Topics
Will Validation, Testamentary Intention, Wills Act 2007 S14, Formalities of Execution, Statutory Interpretation
Wills and Estates Probate Succession Law Will Validation Testamentary Intention Wills Act 2007 S14 Formalities of Execution Statutory Interpretation

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Parties

James Netzler Gladwin

Applicant Nephew

Jennifer Netzler Gladwin

Applicant Niece

Carol Lucy Ireland

Applicant Niece

Caroline Agnes Loto

Applicant Niece

Public Trust

First Respondent Proposed Executor/trustee

Gustaf Adolf Netzler

Second Respondent Beneficiary/opponent

David Phillip Selkirk

Third Respondent Named Executor/trustee in Draft Will

Anthony Martin Fortune

Third Respondent Named Executor/trustee in Draft Will

Procedural Posture

Will Validation / Probate / Judgment (reserved Decision Delivered)

Legal Issues

  1. 1 Whether the draft document found constitutes a will for the purposes of s 14 Wills Act 2007
  2. 2 Whether the document was made after 1 November 2007 so s 14 can apply
  3. 3 Whether the document expresses the deceased's testamentary intentions despite non-compliance with s 11 formalities

Ratio Decidendi

The draft will document, prepared by solicitors, found among the deceased's papers with the deceased's handwriting inserting beneficiaries' middle names and supported by contemporaneous hospital statements, was made after 1 November 2007 and expresses the deceased's testamentary intentions; accordingly the High Court declared the document valid under s 14 Wills Act 2007 and appointed the Public Trust as executor/trustee to administer the estate and distribute the residue in five equal shares to the named beneficiaries.

Court Disposition

Draft will declared valid under s 14 Wills Act 2007; Public Trust appointed executor and trustee; estate to be divided equally among five named beneficiaries; costs split 50/50 between the estate and the second respondent on a 2B basis unless otherwise agreed or ordered.

Orders

  • Declare valid as a will the draft will document on which the deceased wrote the middle names of the beneficiaries pursuant to s 14 Wills Act 2007
  • Appoint the Public Trust as trustee and executor to ensure all debts are paid from the estate and the residue is divided into five equal parts to be distributed to James Netzler Gladwin, Gustaf Adolf Netzler, Caroline Agnes Loto, Carol Lucy Ireland and Jennifer Netzler Gladwin