Estate of Gates

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-159 [2016] NZHC 589

IN THE ESTATE of WILLIAM EDWARD GATES

COLIN ROBERT GATES, EDWARD ARTHUR GATES AND ALISTER DAVID ARGYLE

Applicants

On the papers

Judgment:

7 April 2016

JUDGMENT OF MALLON J

[1] An application is made under s 14 of the Wills Act 2007 for an order declaring that a document is the valid will of William Edward Gates, a deceased person. The application is made because the will does not comply with s 11(4) of the Wills Act 2007 in that the witnesses to Mr Gates’ signature were not together when he signed the document or acknowledged that he had signed the document earlier.

[2] The document amends Mr Gates’ earlier will dated 15 August 2013. That will was duly executed at the offices of Argyle Welsh Finnigan, a firm of solicitors in Ashburton. Under that will the beneficiaries of Mr Gates’ estate were his two sons, Colin and Edward. They were also the executors of his estate, together with Alister Argyle, solicitor.

[3] The document is a copy of the above will with handwritten amendments. The amendments are as follows:

(a) The date is crossed out and the date of 24 April 2014 is inserted.

ESTATE OF GATES [2016] NZHC 589 [7 April 2016]

(b) The foot of the first page of the will is marked “P.T.O”.

(c) On the second page (noted as such) it is stated: “I would like to bequeath $1000 to St Johns Ambulance. Also I would like to bequeath $1000 to the Cancer society”.

[4] An affidavit has been filed by Jack Hart. He deposes that he visited Mr Gates in Ashburton Hospital on about 24 April 2014 when Mr Gates produced the document and asked that he sign it as a witness. Mr Hart did so. There was no other witness at this time. He believes the handwritten additions accurately reflect Mr Gates’ testamentary intention because Mr Gates said that he had altered his will by including legacies of $1,000 to certain charities he intended to benefit.

[5] An affidavit has also been filed by Brendon Soal. He was a patient in Ashburton Hospital and was placed in the same room as Mr Gates. He had known Mr Gates for 35 years. Mr Gates was anxious to have a new will completed. On
24 April 2014 Mr Gates produced the document and asked Mr Soal to sign it as one of the witnesses to his will. Mr Gates had already signed the will. Mr Soal was familiar with Mr Gates’ signature and knew the signature on the document to be that of Mr Gates. Mr Soal signed the document on the first page but is unable to say whether the handwritten additions on the second page were present as he was not asked to sign that page. There was no other witness present at this time.

[6] Mr Gates’ two sons, Colin and Edward, have provided their consent to an

order declaring the document to be valid.

[7] I am satisfied on the evidence that the document expresses Mr Gates’ testamentary intention. I declare the document to be a valid will. The draft order that has been filed can be issued.

Mallon J

CaseChat Overview and Summary

The applicants, Colin Robert Gates, Edward Arthur Gates, and Alister David Argyle, sought a declaration under the Wills Act 2007 that a specific document is the valid will of William Edward Gates, the deceased. The main contention was whether the document in question complied with statutory requirements concerning the witnessing of a will. The will in dispute was a copy of an earlier will, dated 15 August 2013, which was properly executed. The new document, dated 24 April 2014, contained handwritten amendments, including a change in date and additional bequests to charities. The key issue was whether the statutory requirement that witnesses to a will must be present and observe the testator sign the document, or acknowledge that they had seen the testator sign it earlier, was satisfied.

The Court considered the affidavits of Jack Hart and Brendon Soal, both of whom witnessed the signing of the document. Mr Hart stated that he witnessed Mr Gates sign the document and believed the additions accurately reflected Mr Gates’ testamentary intentions. Mr Soal, who had known Mr Gates for 35 years, confirmed that he witnessed Mr Gates sign the document and identified the signature as that of Mr Gates. However, Mr Soal could not confirm if the handwritten additions were present at the time he witnessed the signing. Both witnesses were present alone with Mr Gates when he signed the document. The Court found that the document did express Mr Gates’ testamentary intentions, and despite the statutory requirement not being strictly adhered to, the essence of the law was satisfied. Therefore, the Court declared the document to be a valid will.

The final order was that the draft order filed with the court, which declared the document to be a valid will, could be issued. This decision allows the beneficiaries named in the will, including the charitable bequests, to proceed with the administration of Mr Gates’ estate as per his expressed wishes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established