Dudding v Thomas

[2023] NZHC 634

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-000610

[2023] NZHC 634

IN THE MATTER

of the estate of Peter Clarence Dudding (deceased)

AND IN THE MATTER

of the estate of Jennifer Dawn Dudding (deceased)

BETWEEN

PETER GLENN DUDDING

Applicant

AND

MELANIE THOMAS as executor of the estate of Peter Clarence Dudding

First Respondent

AND

MELANIE THOMAS

Second Respondent

AND

LINDA SANTO

Third Respondent

AND

PETER SHANE DUDDING

Fourth Respondent

AND

ROCHELLE DUDDING

Fifth Respondent

AND

PETER FORD DUDDING

Sixth Respondent

AND

KAYLENE CORTINA DUDDING

Seventh Respondent

AND

PETER THOMAS

Eighth Respondent

AND

RYAN ANTHONY JAMES SCOTT

Ninth Respondent

AND

HOLLY ELIZABETH BUTTON

Tenth Respondent

DUDDING v THOMAS [2023] NZHC 634 [27 March 2023]

AND

BRADD EAREA

Eleventh Respondent

AND

JAYDEN EAREA

Twelfth Respondent

AND

LLOYD JOHNSON

Thirteenth Respondent

Hearing:

14 –15 March 2023

Appearances:

G F Kelly and A S Cavanaugh for the Applicant S J Webster for the First Respondent

L J Blomfield for the Second to Eighth respondents
H Button – on VMR under a watching brief for the Ninth to Thirteenth Respondents

Judgment:

27 March 2023

JUDGMENT OF GENDALL J

Table of Contents

INTRODUCTION AND BACKGROUND  [1]

APPEARANCES AND REPRESENTATION  [15]

APPLICATION FOR VALIDATION — JENNIFER’S ESTATE  [21] INITIAL CAPACITY ISSUE  [28]

THE LAW  [32]

RESULT  [66]

APPLICATION FOR DECLARATION AS TO THE PROPER INTERPRETATION OF PETER’S WILL           [68] FACTUAL BACKGROUND  [69]

EVIDENCE SURROUNDING THE WILL’S EXECUTION  [73]

THE LAW  [82]

ANALYSIS  [87]

RESULT  [99]

COSTS  [102]

Introduction and background

[1]                 This decision relates to issues which  have arisen in the estate of the late  Peter Clarence Dudding (Peter) who died on 3 August 2021 and the estate of the late Jennifer Dawn Dudding (Jennifer) who died on 27 June 2021. Jennifer and Peter had been married for more than 60 years when they died only five weeks apart.

[2]                 Jennifer and Peter have seven living adult children, namely the applicant and the second to seventh respondents:

(a)Peter Glenn Dudding (Glenn);

(b)Melanie Thomas (Melanie);

(c)Linda Santo (Linda);

(d)Peter Shane Dudding (Shane);

(e)Rochelle Dudding (Rochelle);

(f)Peter Ford Dudding (Ford); and

(g)Kaylene Cortina Dudding (Kaylene).

[3]                 They also had one further child, Peter Brent Dudding (Brent), who sadly died before his parents. He left five adult children of his own, namely the ninth to thirteenth respondents respectively:

(a)Ryan Scott (Ryan);

(b)Holly Button (Holly);

(c)Bradd Earea (Bradd);

(d)Jayden Pierce Earea (Jayden); and

(e)Lloyd Johnson (Lloyd).

(All hereafter are together called “the grandchildren”.)

[4]When they died, Jennifer and Peter together owned a property, comprising

1.75 hectares at 277 Meeanee Road, Napier (the property). The property was owned by them both as tenants in common in equal shares. Also at that time they held some shares in Dudding Contractors Ltd (the Company), an earthmoving company, a long-standing family company, which for some years had been operated by their third-eldest son Glenn. The Company had a total share capital of 2,000 shares, of which at her death Jennifer owned 900 shares and…