Dudding v Thomas
[2023] NZHC 634
•27 March 2023
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 RespondentsJudgment:
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 Peter owned 50 shares. The remaining 1,050 shares of the Company were held by Glenn, who is also the sole director. Glenn is the applicant in the present proceeding.
[5] The Company operates its earthmoving business from the property, and has done so, it seems, for many years. The original home and residence of Jennifer and Peter is also on the property. Although Glenn indicates the company has paid some outgoings for the property over the years, it is clear that no regular rental has been paid to Peter or Jennifer or to their estates.
[6] Jennifer died without a valid will. Around August 2020, some 10 months before her death, a draft will had been prepared on her instructions by her brother-in-law Mr Graeme Mansfield (Mr Mansfield), but this draft will had not been signed by her, nor executed in compliance with the Wills Act 2007.
[7] At the time of Peter’s death, he had a valid will dated 21 November 2019, also drafted by Mr Mansfield. Probate of this will was granted on 29 July 2022 to his daughter Melanie, the named executor in the will.
[8] A number of questions have arisen between the parties, all members of the Dudding family. Sadly, it seems a degree of hostility between family members has developed on a range of issues. Two matters are the subject of the present applications before me, namely:
(a)an application by Glenn to validate Jennifer’s draft will, which was drafted by Mr Mansfield on 10 August 2020 but which remained unsigned when Jennifer died on 27 June 2021; and
(b)a further application by Glenn for a declaratory judgment as to the proper interpretation of Peter’s last will dated 21 November 2019.
[9] Both applications are opposed by Melanie (in her capacity as a beneficiary, but not as the executor of Peter’s estate), Linda, Shane, Rochelle, Ford and Kaylene (together “the opposing children”). The named grandchildren Ryan, Holly, Bradd, Jayden, and Lloyd also oppose the application to validate Jennifer’s draft will, and Bradd, Jayden, and Lloyd have formally opposed the application for a declaratory judgment as to the interpretation of Peter’s will.
[10] What does appear clear is that, if Glenn’s present applications before the Court are granted, a one-quarter share in the property (owned now by Peter’s estate) and all of Jennifer’s 900 shares in the company will be distributed to Glenn, thereby reducing the residue available for distribution to both the opposing children and (in part) the grandchildren.
[11] Both of these applications concern the same parties and have a significant factual overlap. As a result, the applications have been consolidated and were heard together. This judgment relates to both applications.
[12] Apparent from these applications, too, is that if validation of Jennifer’s will is granted, the named grandchildren will receive nothing from Jennifer’s estate.
[13] It is appropriate to consider first, Glenn’s application for validation relating to Jennifer’s draft will and then secondly, his application for a declaratory judgment as to the proper interpretation of Peter’s will.
[14] But, before doing this, it is useful here to outline the appearances of counsel for various parties at the hearing before me and other representation issues.
Appearances and representation
[15] On this aspect, Mr Kelly and Ms Cavanaugh appeared for the applicant Glenn. Mr Webster then appeared as counsel for Melanie, the first respondent, in her capacity only as executor of Peter’s estate. Ms Blomfield appeared as counsel for the opposing children, the second, third, fourth, fifth, sixth and seventh respondents, Melanie (in her personal capacity as a beneficiary), Linda, Shane, Rochelle, Ford and Kaylene.
[16] In addition, memoranda and material are before the Court from Holly, Bradd, Jayden, and Lloyd, the tenth, eleventh, twelfth and thirteenth respondents personally. As I have noted, they are the children of Brent, who died some time before both Peter and Jennifer.
[17] In addition, Holly also appeared by VMR before the Court on behalf of herself and her three brothers at the first day of this trial on 14 March 2023. She made it clear she was appearing to listen to the proceedings and to undertake what was only by way of a holding role for her and her brothers in this proceeding.
[18] In all the communications to the Court from Holly and the other grandchildren, it was made clear particularly by Holly that she and her brothers received nothing from the estate of their late father, Brent. What is also clear is that the other parties to this proceeding accept that Holly, Ryan, Bradd, Jayden and Lloyd are Brent’s children.
[19] So far as the present proceeding is concerned, Holly’s position and that of her brothers as grandchildren appears to be:
(a)Their grandfather, Peter, wanted to ensure they were provided for in his 21 November 2019 will by including them as his grandchildren in the gift over to Brent’s children in the event, as occurred, that Brent pre-deceased him.
(b)For whatever reason, Jennifer, their grandmother, had not made a similar provision for grandchildren in her 10 August 2020 draft will. Holly and her brothers question whether, given Jennifer was said to be
unwell in August 2020, she may not have had testamentary capacity at that time.
(c)In any event, they also do not support the position that Jennifer’s 10 August 2020 draft will should be deemed to be valid. If, however, the Court finds otherwise, they seek that in some way a clause be added to this draft will to provide the same gift over to them of the share Brent would have received had he survived his mother as appears in Peter’s will.
(d)In all other respects, Holly, Ryan, Bradd, Jayden and Lloyd oppose both of the present applications brought before the Court by their uncle Glenn.
[20] On all these matters, I acknowledge and thank Holly and her brothers for the clear and helpful submissions advanced to this Court. I record I have considered and taken all those matters into account where relevant in reaching this decision.
Application for validation — Jennifer’s estate
[21] Turning now to Glenn’s validation application, as I have noted, Jennifer died on 27 June 2021 without a valid will. A draft will had been prepared for her by an experienced solicitor, Mr Mansfield (who was her brother-in-law, he being married to Peter’s sister, Marilyn). This occurred around 10 August 2020, some 10 months prior to Jennifer’s death. The draft will relevantly provided:
…
2. If my Husband PETER CLARENCE DUDDING shall survive me for a period of 14 days THEN BUT NOT OTHERWISE I APPOINT my said husband (hereinafter called “my Trustee”) to be the Executor and Trustee of this my Will.
3. I GIVE any shareholding owned by me in DUDDING
CONTRACTORS LIMITED to my son PETER GLEN DUDDING [sic].
4. I GIVE my share of the home/property at 277 Meeanee Road Meeanee which my husband the said PETER CLARENCE DUDDING and I have for many years used as our principal residence to my trustee UPON TRUST to allow my said husband to have the full use, income, occupation and enjoyment during his lifetime upon the following terms and conditions:
(a)He will keep the said home fully insured;
(b)He will pay all rates, taxes, interest, insurance premiums, cost of repairs and other outgoings usually paid from income from my residuary estate;
(c)He will keep the said home in good condition;
(d)He will not be responsible for any damage or loss to my residuary estate caused by fire, lightening, earthquake storm or other inevitable accident.
PROVIDED FURTHER that upon the death of the said PETER CLARENCE
DUDDING this portion of my estate will then form part of my residuary estate.
5. I GIVE all the remainder of my estate both real and personal of whatsoever kind and wheresoever situate of which I shall be possessed to which I shall be entitled or over which I shall have any disposing power at my death including any insurance policy on my life (hereinafter called “my said estate”) unto my Trustee UPON TRUST after payment thereout of all my just debts funeral graveyard and testamentary expenses and all estate and other duties for such of my children who survive me in equal shares or to the survivor as between them absolutely.
…
7. I DIRECT that my body be cremated.
[22] It is this draft will that the Court is being asked in Glenn’s first application to validate.
[23] From his evidence before the Court, Mr Mansfield, amongst other things, confirms:
(a)He knew Jennifer and her husband Peter for approximately 26 years leading up to the time they died. Peter was the elder brother of Mr Mansfield’s wife Marilyn. Peter and Jennifer were his and Marilyn’s close family members, being his brother-in-law and sister-in-law. He knew them both very well.
(b)On 10 August 2020, his wife Marilyn visited Jennifer at the Hawke’s Bay hospital in Hastings. Marilyn then informed him that Jennifer wanted to see him to discuss making a will.
(c)Prior to visiting Jennifer, Mr Mansfield took the precaution of checking the directorships and shareholdings of the company. He was already aware that Jennifer owned an undivided one-half share in the property at Meeanee.
(d)In his 1 November 2022 affidavit evidence he deposes:
[23] I visited with Jennifer and recall that she was in some discomfort at the time, but she clearly understood the purpose of my visit and discussed her general wishes around her will. Her primary concern was for Peter and his welfare should she predecease him. She did not want Peter’s situation to change and after various options were put to her saw the granting of a life interest in the property to Peter with her interest to pass to her living children as a good solution. She also expressed the wish that the shareholding in Dudding contractors pass to Glenn. From her point of view it was logical that Glenn – who was continuing with the business – received those shares. There was no discussion over values; it was simply something that she wanted to do.
(24) I told Jennifer that I would go back to the office and prepare a will and bring it back to her for her consideration. I then went back to the office and typed a draft will. I then went back up to the hospital with the draft for Jennifer’s consideration.
(25) Enquiries were made of the hospital staff whether any of the staff members would be able to witness the will. I was told this was not possible because of hospital policy. At that time of the day my office had closed, and I did not have any witnesses available.
(26) It is my belief that the will I prepared for Jennifer on that date reflected her wishes on that date …
[24]Later, in a second affidavit dated 12 December 2022, Mr Mansfield confirms:
Jennifer indicated [on 10 August 2020] that she was happy with the draft will including the share disposition to Glenn.
[25] What is also clear from Mr Mansfield’s evidence is that the draft will noted above was one of two versions Mr Mansfield had prepared that day, after his discussions with Jennifer regarding her wishes. It was this draft will that left Jennifer’s shares in the company to Glenn. The other draft will which Mr Mansfield had also prepared left out the transfer of the company shareholding to Glenn entirely.
[26] Mr Mansfield in his evidence indicated that he prepared the two wills simply on a “belt and braces” basis in case Jennifer had changed her mind when he returned to the hospital regarding the company shares and he was prepared for this. His clear evidence, however, is that both the will versions were put to Jennifer and:1
(l) … She expressed the wish that her shareholding in Dudding Contractors pass to Glenn
… [and]
(t) Jennifer indicated that she was happy with the draft will including the share disposition to Glenn.
[27] From the evidence, the full extent of the reasons why the draft will was not signed, apart from Mr Mansfield being unable at the time to find a second person to witness the signing of the will, is somewhat unclear. What is apparent, however, is that despite there being a period of some 10 months available for Jennifer to sign the draft will prior to her death, this did not occur.
Initial capacity issue
[28] Melanie, in her capacity as a beneficiary, and as one of the opposing children who contest their brother Glenn’s validation application, deposed in her 27 February 2023 affidavit:2
[25] I have doubt about the legitimacy of Mum’s [10 August 2020] draft will given the brief timeframe in which it was produced (along with an alternative version) and during a time when Mum was being administered opioids to control her pain. During this time, she displayed signs of confusion and depression; the latter being witnessed by several members of my family who experienced her emotional highs and lows on a daily basis. My siblings and Mum’s visitors recorded this in a Facebook family messenger group at the time.
[29] In addition, in her evidence Melanie says there are provisions in the draft will which she claims are inconsistent with Jennifer’s known views. In particular, these relate to the direction that she be cremated, whereas Melanie says Jennifer had told several of her children that she did not want to be cremated. Further, the failure to provide for Brent’s children as her grandchildren surviving their father, given
1 Second affidavit of Mr Graeme Mansfield, 12 December 2022 at [5(l)] and [5(t)].
2 Affidavit of Ms Melanie Thomas, 27 February 2023.
Jennifer’s family views, is said to be somewhat surprising and, Melanie maintains, also calls into question whether the draft will accurately reflected her testamentary intentions.
[30] No medical evidence of any kind as to Jennifer’s condition and testamentary capacity on or about 10 August 2020, however, is before the Court. What evidence has been provided is largely that of Mr Mansfield. He says that in his practice as a lawyer for over 40 years he has been involved in preparing and having signed “hundreds of wills” and clearly, had he had any concerns or questions about Jennifer’s capacity at the time, he would have obtained a professional medical report on this. He did not do this, he said because, despite Jennifer having suffered what seems to be two strokes at the time, Mr Mansfield from his evidence was in no doubt that, other than suffering some discomfort, she was not in any way incapacitated, she clearly understood the purpose of his visit and provided to him her wishes and intentions for her will.
[31] Noting this, and given also that no firm and independent evidence is before me to substantiate the contention that Jennifer lacked testamentary capacity on 10 August 2020, I reject and leave this matter entirely on one side here.
The law
[32] Section 11 of the Wills Act 2007 sets out the criteria for a valid will. This provides that a valid will must be in writing, signed by the will-maker, and witnessed by at least two witnesses who have signed the document in the will-maker’s presence.
[33] Section 14 of the Act provides jurisdiction to this Court to declare a document that does not comply with s 11 to be a valid will in certain circumstances:
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.
The court may consider—
(a)the document; and
(b)evidence on the signing and witnessing of the document; and
(c)evidence on the deceased person’s testamentary intentions; and
(d)evidence of statements made by the deceased person.
[34] The purpose of the validation power in s 14 of the Act is to prevent testamentary intentions from being defeated solely because of non-compliance with formal requirements, if it is clear a deceased’s genuine intentions can be proved in other ways. Authorities dealing with s 14 illustrate that this section has a remedial or curative purpose and also that a robust approach to the application of s 14 is required.3
[35]In Caird v Caird, Mander J summarised:4
[39] This Court has remarked that a person who in good faith sets out to express his or her testamentary intentions should not have those intentions thwarted by technicalities, and that the Court should endeavour to give effect to the deceased person’s intentions. Where there is evidence of the person’s testamentary intentions, it is better that they be given effect, in preference to the disposition of property which would take effect under any previous will, or in the situation of intestacy.
[36] As to the issue whether a draft will expresses a deceased’s testamentary intentions, when such a draft will has been formally prepared by a lawyer as a consequence of clear instructions received from the deceased, it may be more likely to be found to capture that deceased’s intentions.5 In Mason v Mason, a decision of the High Court, however, Cooke J dismissed an application to validate a draft will prepared on instructions given to a solicitor, principally because he accepted on the evidence that there was a plausible explanation for why Mr Mason did not execute that draft will given that Mr and Mrs Mason separated four months later.6
3 Caird v Caird [2018] NZHC 1605 at [34]; and Re Feron [2012] 2 NZLR 551 (HC) at [11].
4 Caird v Caird, above n 3 (footnotes omitted).
5 Mason v Mason [2022] NZHC 491, [2022] NZFLR 64 at [22].
6 At [25]–[26] and [31].
[37] In the present case, the evidence before me of Mr Mansfield confirmed his belief that the draft will he had prepared “represented [Jennifer’s] intentions as she expressed them to [him] at 10 August 2020.”7 As Mr Mansfield also said in re-examination, “the will was never signed but they [the Dudding family] needed to know that on that day [10 August 2020] that unsigned will or draft will expressed her wishes”, so it was a “very” important document.
[38] In addition, no other compelling evidence has been provided to me to suggest otherwise than as at 10 August 2020, when Jennifer’s firm instructions were given to Mr Mansfield and later she confirmed the draft will he had prepared, Jennifer clearly gave effect to those testamentary intentions.
[39] This means the nub of any real opposition before me relating to validation of Jennifer’s draft will must centre around whether or not there was anything significant that occurred for Jennifer between 10 August 2020 and the date of her death with respect to her testamentary intentions.
[40] On this aspect, Mr Kelly, for Glenn, contends there is nothing of any substance before the Court to suggest that Jennifer had any change of heart with respect to her testamentary intentions. As a result, Glenn’s position is that there is a clear case for validation of the 10 August 2020 draft will here.
[41] The position advanced for each of the respondents, being the opposing children and the grandchildren, however, is that this is not the case. From the evidence before me they generally contend that first, Jennifer had a significant change of heart about having any will at all and secondly, effectively she must be seen here as having made a clear decision after 10 August 2020 that she would not proceed with the earlier draft will.
[42]In this respect, MacKenzie J in this Court observed in Re Estate of Bishop:8
[6] To be satisfied that an unsigned draft will expresses the deceased’s testamentary intentions, this Court must consider carefully whether the failure to sign the draft might indicate a change of mind on the part of the deceased
7 Second affidavit of Mr Mansfield, 12 December 2022, at [5(aa)].
8 Re Estate of Bishop [2014] NZHC 3355.
after giving instructions for the will to be drafted. That possibility must be closely examined here. The draft will was prepared in 2009. The deceased did not die until 2013. His failure to sign the will cannot be explained by his having been prevented from signing the will by later events. It is necessary to look at other circumstances, to decide whether those exclude the possibility that the failure to sign the will was a deliberate decision, because of a change of mind …
[43]Earlier, in Re Estate of Hickford (deceased) MacKenzie J had also said in part:9
[8] … The evidence is that the will had been drafted by the solicitor in a form which the solicitor considered appropriate to give effect to the deceased’s instructions as conveyed to her, and in a form which could be signed … The evidence of [the applicants] as to their subsequent discussions with the deceased satisfy me that the deceased did consider that the form of will was appropriate to reflect his intentions.
[9] The fact that the deceased did not make an appointment to sign the will might be consistent with any one of three broad possibilities:
(a)That he had changed his mind about making a will;
(b)That he overlooked or forgot about signing the will; or
(c)That he did not think that he needed to do anything further.
[44] In a later decision in this Court, Gladwin v Public Trust, Woolford J, after quoting the above passage from the decision of MacKenzie J in Re Estate of Hickford (deceased), went on to say:10
[22] With respect to MacKenzie J, I do not agree with him that to meet the statutory test the case must fall within the third possibility. MacKenzie J does in fact go on to state that the second possibility might not meet the statutory test so acknowledging that, in some cases, the second possibility might also meet the statutory test. There is another possibility not articulated by Mackenzie J. Rather than overlooking or forgetting to sign a will, a person may intend to do so but never get around to it before his or her death. Given [the deceased’s] chaotic domestic arrangements as described by [one of the applicants] in evidence, that is a real possibility in this case.
[45] It is true also, as I have noted above and repeat, that when a will has been formally prepared by a solicitor, as a consequence of detailed instructions received from a deceased like Jennifer here, it may be more likely to be found to capture the deceased’s intentions.11
9 Re: Estate of Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009.
10 Gladwin v Public Trust [2011] 3 NZLR 566 (HC).
11 Mason v Mason, above n 5, at [22].
[46] From the evidence in particular of Mr Mansfield in the present case, it is plain that on 10 August 2020 he was satisfied Jennifer wanted a will and she gave him firm instructions to prepare a will for her. These instructions were to include, amongst others, the specific provision that her shares in the company were to pass to Glenn. Nothing has been put before me by way of evidence from any other party to support a clear suggestion that the draft will did not reflect Jennifer’s wishes and intention at the time in August 2020. As Mr Mansfield confirmed on several occasions, Jennifer reviewed the draft will on 10 August 2020 and indicated she was happy with it. It is telling that Mr Mansfield in cross-examination confirmed that, had there been a second witness available on 10 August 2020, unquestionably this will would have been signed.
[47] Mr Mansfield does say also, however, that subsequent to that date Jennifer never contacted him again regarding the draft will and also he never raised the issue of the signing of the will with her again. Although Mr Mansfield in his evidence confirmed that he did see Jennifer again on at least two subsequent occasions after 10 August 2020 and prior to her death, at no time did she raise with him the draft will. Specifically, Mr Mansfield testified that he was also quite unable to say whether Jennifer’s testamentary intentions expressed to him on 10 August 2020 may have changed prior to her death. This was notwithstanding, as Mr Mansfield acknowledges, that during that 10-month period, Jennifer had ample opportunity to approach him either to say she no longer wished to proceed with that will, or indeed to have the will signed.
[48] In the decision of Cooke J in Mason v Mason, as I have noted, an application to validate a draft will prepared on instructions given to a solicitor was dismissed because the Court accepted on the evidence there was a plausible explanation as to why the deceased, Mr Mason, had not executed the draft will. This explanation was the fact that Mr Mason had separated from his wife some four months after the draft will instructions were given.
[49]As Cooke J noted:12
… the remedial effect of s 14 still depends on the deceased having clear testamentary intentions that are being defeated by the formalities. The section should not be utilised when there are substantial doubts about what those intentions were. When there is a document prepared by a solicitor on instructions, the applicant may have a prima facie case for the application of s 14. But the circumstances still need to be such that other explanations for a lack of formal execution can be excluded. That is not the case here.
[50] In the present case, it appears the last discussion about a will anyone had with Jennifer after August 2020 took place around Christmas 2020. It seems that was a discussion between Melanie and her mother. In her evidence, Melanie said in December 2020 she asked her mother about her will after speaking with her aunt, Marilyn, Mr Mansfield’s wife. Melanie said Jennifer’s reply was that she did not have or need a will and that Melanie knew what Jennifer wanted done.
[51]Also in her affidavit evidence Melanie noted:
[24] Throughout her lifetime, Mum never mentioned a will to me or any of my family members to my knowledge. Instead, she consistently said she did not need a will prior to her death.
[52] Melanie’s position, and that of the other opposing children, is that the December 2020 conversation between Jennifer and Melanie suggests that Jennifer had changed her mind about making a will. This, it is said, is the reason why Jennifer did not follow up with Mr Mansfield about signing her draft will. It is contended that Jennifer had not overlooked or forgotten about signing the will, nor did she mistakenly believe that she did not need to do anything further, nor did she intend to sign it before her death. The argument follows that the clear consequence here is that Jennifer changed her mind about making the will in the period following 10 August 2020 and that the draft will could not be said in any sense to express her testamentary intentions at the time of her death.
[53] I do not accept this argument. The 10 August 2020 draft will, as I understand the position, is Jennifer’s only known attempt to record her testamentary intentions, she having never previously had a will. Obviously, if that draft will was not to be
12 At [31].
validated here, Jennifer would die intestate, and her estate would be distributed in accordance with the default distributions on intestacies.
[54] As Mr Mansfield made clear in his evidence, Jennifer’s instructions to him as to her testamentary intentions in August 2020 were deliberate and measured. She reviewed the draft will he had prepared and said firmly she was happy with it. She also confirmed specifically on more than one occasion the provision whereby she wanted her shares in the company to pass to Glenn.
[55] Jennifer’s expressed wish in her draft will to give her shares in the company to Glenn, as I see it, is confirmed too by other evidence before me:
(a)An extract from Jennifer’s diary from 13 February 2018, which states “Saw accountant, Glenn’s, about how to give Glenn shares”.
(b)A further extract from Jennifer’s diary, this one from 14 February 2018, which states “Peter saying my shares must be worth something. I have told him mine all to Glenn. Have done for years.”
(c)The independent evidence of Jennifer’s sister Mrs Gempton (confirmed also by the evidence of her brother-in-law, Mr Gempton) that:13
Jenny always said to us that her shares in the Company Dudding Contractors Limited were to go to Glenn, and that the family all knew this.
(d)Evidence from Mr Mansfield that Jennifer confirmed to him on several occasions that she wished her shares in the company to pass to Glenn.
(e)Further evidence of Mr Mansfield in his 1 November 2022 affidavit, where he states:
[23] … She [Jennifer] also expressed the wish that the shareholding in Dudding contractors pass to Glenn. From her point of view it was logical that Glenn – who was continuing with the business – received those shares. There was no
13 Affidavit of Ms Shirley Gempton, 20 January 2023 at [3]; and affidavit of Mr Desmond Gempton, 20 January 2023 at [5].
discussion over values; it was simply something that she wanted to do.
And, in cross-examination before me, Mr Mansfield confirmed that he knew Jennifer very well and she had made clear what was happening to the company shares which were to pass to Glenn:
I discussed with Jennifer the two versions of the draft will I had prepared for her, and she said she clearly preferred the one leaving the shares to Glenn and that is what she wanted.
[56] On the critical issue here as to whether Jennifer changed her mind and/or had a change of heart about having a will after 10 August 2020, I acknowledge at the outset from the evidence of a number of parties before me, that from time-to-time Jennifer had expressed the view, particularly prior to August 2020, that she did not want or need a will.
[57] I do not accept, however, there is significant evidence before me to support a view that this firmly represented a lack of any testamentary intention on Jennifer’s part here. Nor am I satisfied that anything is before the Court to show that post-August 2020 Jennifer had any change of mind about the terms of her proposed draft will.
[58] Other than the comment from Melanie as to the December 2020 discussion she had with her mother, there does not appear to be any direct evidence before me to support the view that Jennifer did have a change of mind about her will in this case. I acknowledge that in the evidence of Melanie’s husband, Mr Peter Thomas, he said that Jennifer’s husband Peter shortly prior to her death did confirm that Jennifer did not have a will. I leave that aspect on one side as, in my view, it does not assist the position in any way.
[59] And, turning for a moment to the provisions outlined in Jennifer’s draft will, the only real issue of disagreement between the parties here, as I see it, relates to the deliberate gift in paragraph 3 of the draft will of her shares in the company to Glenn. As I have noted above, however, this bequest is directly in line with evidence which I have noted at [55] above regarding Jennifer’s intention throughout that her shares in the company were to pass to Glenn and it was logical that they should do so. I do note the absence of any gift over to grandchildren and, in particular, regarding what would
have been Glenn’s share in his mother’s estate not passing to his children. At one level, this might be seen as an unfortunate omission. According to Mr Mansfield, however, that was a specific provision that Jennifer addressed. He says she advised him unequivocally that her residuary estate was to pass only to her living children who survived her. I say nothing more on that aspect.
[60]As an aside at this point, I do note the comments of the learned author of
Nevill’s Law of Trusts, Wills and Administration, where they state:14
13.5.6 Unsuccessful applications under section 14
The majority of applications under s 14 are successful. This point was observed in Re Wong, where the Judge, citing MacKenzie J in Re Campbell, noted that there had been approximately 80 applications under s 14 since July 2014 and that only two had failed. This sentiment was similarly expressed in Bullivant-King v King by Gwyn J, who stated it was unusual for an application to be refused …
[61] As I have already noted, this is not a case like Re Cox, where an annotated will and a later draft document could not be validated under s 14 because there was a lack of testamentary capacity.15 Belated suggestions advanced by Melanie of possible testamentary incapacity on the part of Jennifer, as I have noted, are entirely unsupported by any medical, expert or further evidence in any way. Mr Mansfield, an experienced lawyer in the drafting and execution of wills, was quite satisfied on capacity issues for Jennifer at the time his instructions were received.
[62] Considering all the evidence which is before me, I am satisfied on the balance of probabilities here that the 10 August 2020 draft will document reflected the testamentary intentions of Jennifer, and this remained so up to her death on 27 June 2021. Also I am of the clear view this is not a case like Mason v Mason, where this Court was not satisfied an unexecuted draft of a deceased’s will constituted the final testamentary intentions of the will-maker on the basis there were possible explanations (such as there having been a relationship breakdown there, in addition to
14 Lindsay Breach Nevill’s Law of Trusts, Wills and Administration (14th Edition, LexisNexis, Wellington, 2023) (citations omitted).
15 Re Cox [2020] NZHC 1310.
unfinished intentions to deal with Māori landholdings) in existence in that case.16 Nothing similar to that, in my view, applies here.
[63] Evidence before me confirmed that Jennifer was a private person who strived to please everyone. Some it seems have described her as a “people-pleaser”. Questions to her from her daughter Melanie in December 2020 as to whether she had signed her will could, quite understandably as I see it, have been met with a fudged answer from Jennifer, in part given that the question might have been seen by her as a request for details of the contents of any such will itself. Any reluctance by Jennifer post-August 2020 to discuss her will in the presence of others might well be seen as understandable, given her makeup and her view that this was all somewhat uncomfortable for her. In addition, her ability then, for example, to make a trip to have her will signed would not have been easy, given her growing lack of mobility and her need to be assisted in all things. No doubt, this would have entailed requests of others.
[64] Finally, I conclude that no evidence is before me of any subsequent “event” that occurred in this case, such that what I see as Jennifer’s clear and deliberate testamentary intentions expressed in her 10 August 2020 draft will changed. The alleged change of heart or change of mind on her part is not borne out by any firm evidence provided to me in this case.
[65] For all these reasons, I am satisfied this Court should give effect to Jennifer’s clear testamentary intentions outlined in this draft will.
Result
[66]The validation application before me therefore succeeds.
[67] An order is now made under s 14 of the Wills Act 2007 that the unsigned draft will of the late Jennifer Dawn Dudding, a copy of which is annexed to Glenn’s affidavit filed in support of this application, is now validated as her last will.
16 Mason v Mason, above n 5.
Application for declaration as to the proper interpretation of Peter’s will
[68] I now turn to Glenn’s second application before the Court, seeking a declaratory judgment as to the proper interpretation of Peter’s last will dated 21 November 2019.
Factual background
[69] Mr Mansfield had drafted the will for Peter some weeks before it was signed on 21 November 2019. He was also one of the witnesses to Peter’s signature on the will. Peter’s will, amongst other things, provided as follows:
…
2. I APPOINT my wife JENNIFER DAWN DUDDING of Meeanee, Retired and MELANIE THOMAS of Pukekawa, Marketing Contractor, (hereinafter called “my Trustee”) to be the Executor and Trustee of this my Will.
3. IF I have not already made such disposition during my lifetime, I give to my son PETER GLEN DUDDING [sic] a one-half share of my interest in the undivided one-half share in 277 Meeanee Road Napier being all that parcel of land containing 1.7566 hectares more or less being Lot 1 on Deposited plan 13992 being all that land comprised and described in Certificate of title HBG2/61 (Hawkes Bay Registry) to the intent that he will own an undivided one-quarter share of the property. This disposition is made in recognition of Glen’s [sic] contribution to the carrying on of the name of the family firm known as Dudding Contractors Limited which was started by my father.
4. I GIVE to my son PETER FORD DUDDING my F150 Truck to fulfil a promise made to him during my lifetime.
5. I GIVE to my daughter MELANIE THOMAS and her husband
PETER THOMAS my Corvette motor vehicle previously owned by my late son Brent in the expectation that the proceeds of sale can be utilised in their sole discretion in all things to enable Peter to complete the novel he is currently working on.
6. I GIVE the first call on my tools of trade to my son GLEN [sic] but would be happy if my tools were also shared around the family in the expectation that use could be made of them after my death.
7. I DECLARE that I hold various documentation at my home pertaining to my late mother’s husband Manu Tuanui and his businesses and direct that such documentation be given to my sister Marilyn Mansfield.
8. I GIVE all the rest of my estate both real and personal of whatsoever kind and wheresoever situate of which I shall be possessed to which I shall be entitled or over which I shall have any disposing power at my death including any insurance policy on my life (hereinafter called “my said estate”) unto my
Trustee UPON TRUST after payment thereout of all my just debts funeral graveyard and testamentary expenses and all estate and other duties for my wife the said JENNIFER DAWN DUDDING absolutely.
9. IF my said wife shall not so survive me for a period of 14 days THEN
BUT NOT OTHERWISE:
(a) I RE-APPOINT the said MELANIE THOMAS of Pukekawa, Marketing Contractor (hereinafter called “my Trustee”) to be the Executor and Trustee of this my Will.
(b) I GIVE all my said estate unto my Trustee UPON TRUST to sell call in and convert into money such part or parts thereof as shall not already consist of money and to stand possessed of the proceeds of such sale calling in and conversion into money together with such part of my said estate as shall already consist of money and to pay thereout all my just debts funeral testamentary and graveyard expenses and all estate and other duties and to stand possessed of the residue (hereinafter called “my residuary estate”) UPON TRUST for such of my children as shall survive me in equal shares absolutely.
(c) I DECLARE that if any of my said children shall predecease me or fail to survive me for a period of 14 days in either case leaving a child or children living at the date of my death or conceived prior to but born after my death who shall attain the age of 21 years then and in every such case such last mentioned child or children shall take and if more than one in equal shares the share estate and interest under this my Will which his her or their parent would have taken had such parent been living at the date of my death.
…
[70] Following a grant of probate of this will on 29 July 2022, Melanie, in her capacity as executor of Peter’s estate, has taken the view that because Jennifer pre-deceased Peter, cl 9 revokes all the preceding clauses in the will. This is to include the specific bequests recorded at cls 3 to 7 of the will outlined above which are to have no effect.
[71] Glenn, however, strongly disagrees that clause 9 has this effect. In his 4 October 2022 Originating Application for a Declaratory Judgment, he seeks a declaration effectively confirming that cls 3 to 7 of Peter’s will are to remain and be given effect prior to distribution of the residue.
[72] In particular, in his application, Glenn outlines the specific orders he seeks in this way:
A.A declaration under section 3 of the Declaratory Judgments Act 1908 that:
i.clauses 3 – 7 of the Will are to be given effect, notwithstanding that Jennifer Dawn Dudding predeceased Peter Clarence Dudding; and
ii.the words “all my said estate” at clause 9 (b) of the Will shall have the defined meaning recorded at clause 8 of the Will, namely that “my said estate” means all of the rest of the testator’s estate following the making of the specific bequests provided for at clauses 3 – 7 of the Will; or in the alternative
B.An order under section 31 of the Wills Act 2007 correcting the Will so that:
i.clauses 3 – 7 of the Will are to be given effect, notwithstanding that Jennifer Dawn Dudding predeceased Peter Clarence Dudding; and;
ii.the words “all my said estate” at clause 9 (b) of the Will shall be defined as “all of the rest of my estate both real and personal of whatsoever kind and wheresoever situate following the making of the specific bequests provided for at clauses 3 – 7 of the Will”; or in the alternative
C.An order under section 32 of the Wills Act 2007 confirming that the Will should be interpreted as follows:
i.clauses 3 – 7 of the Will are to be given effect, notwithstanding that Jennifer Dawn Dudding predeceased Peter Clarence Dudding; and
ii.the words “all my said estate” at clause 9 (b) of the Will shall have the defined meaning recorded at clause 8 of the Will, namely that “my said estate” means all of the rest of the testator’s estate following the distribution of the specific bequests provided for at clauses 3 – 7 of the Will.
Evidence surrounding the will’s execution
[73] As I have noted, Peter’s will was drafted by his brother-in-law Mr Mansfield. In his 1 November 2022 affidavit, Mr Mansfield gave detailed evidence about the circumstances in which that will had been made. In particular, in the affidavit, Mr Mansfield deposes:
Peter’s will
6. In terms of Peter’s will, which has now been admitted to Probate, I initially received a call to meet with him to discuss a will from his hospital bed at Hastings hospital. Peter had been admitted to hospital for a serious issue which was life-threatening (perforated bowel).
7. I do not remember the exact date I met with Peter, but as a result of the meeting I drafted a will and then took it back to him for him [sic] for approval. Peter then requested me to leave the document with him so that he could consider the contents.
8. Some weeks later Peter called in to see me unannounced at my office on 21 November 2019. We went over the contents of the draft will again and he told me that he was happy with the result … After the will was signed, I dictated a short file note, a copy of which is marked “A”.
9. Peter felt that he would predecease wife Jennifer, in light of his recent hospital admission and general state of health. He made the bequests in paras 3–7 with this in mind. He did not think that Jennifer would have any need for the items involved in those bequests.
10. On the matter of paragraph 3, Peter did state he wanted to recognise son Glenn’s part in carrying on the name of the family business. Dudding Contractors had been operating since 1930.
11. I asked Peter whether he would instead like me to transfer half of his undivided half share of the Meeanee property to Glenn at that point. Peter’s response was that he wanted to think further about the issue. I simply assumed Peter wanted to keep his options open.
12. Thereafter, I never received instructions from Peter to expedite that disposition.
13. The disposition to Glenn was only to be made if Peter predeceased Jennifer.
14. The wording I employed in paragraph 9 has now been called into question by Glenn. I disagree with his assessment. Peter wished to distribute his entire estate to his seven living children (along with the issue of his deceased son Brent who died in 1996) in the event Jennifer predeceased him.
15.My position is reinforced by the fact that I used the terminology
THEN BUT NOT OTHERWISE and then went on to re-appoint Melanie Thomas in paragraph 9(a) as Executor and Trustee. My intention and employment of that wording in that paragraph was to reinforce the fact that everything thereafter replaced everything that had gone before. This was triggered by the then seemingly remote possibility that Jennifer may predecease Peter.
16. The reference to “my said estate” in paragraph 9(b) was an innocent drafting error and was not picked up prior to Peter signing the will. The reference should have read “my estate”. I have been drafting wills for over 40 years and in that period have drafted hundreds of wills. I do not agree with Glenn’s interpretation of that paragraph.
17.Peter did not instruct me to review his will following Jennifer’s death.
[74] Mr Mansfield was subpoenaed by counsel for Glenn to give oral evidence at trial before me, which he did. His evidence was clear, measured and straightforward. He confirmed on a number of occasions both in cross-examination and re-examination the comment in his affidavit that the specific bequests in paragraphs 3–7 of Peter’s will, including the disposition of a one-quarter share in the property to Glenn, were only to be made if Peter had pre-deceased Jennifer.
[75] In his evidence-in-chief Mr Mansfield confirmed that he believed the will does say that the gifts in clauses 3 to 7 would be cancelled if Jennifer did not survive Peter “[b]ecause paragraph 9 was designed to just wipe the slate clean and just provide the residual estate … to the living children plus the grandchildren.”
[76] In response to a question to Mr Mansfield that after the words “then but not otherwise” Peter had said in paragraph 9(b) “I give all my said estate” to the children, and the will had defined “the said estate” at paragraph 8 as being the estate after the gifts in clauses 3 to 7, Mr Mansfield testified: “That was a drafting error. Pure and simple, yeah.”
[77] In reference to “[t]he disposition to Glenn”, of the quarter share in the property, Mr Mansfield testified this “was only to be made if Peter predeceased Jennifer”. Mr Mansfield repeated this and confirmed: “They were my instructions, Sir.”
[78] Mr Mansfield said in evidence his solution when Peter said he would leave a one-quarter share in the property to Glenn, was “Well, why don’t we do it now?”
[79] Mr Mansfield also testified first, that Peter “wanted to think about” that suggestion of Glenn receiving a quarter share of the property now, and secondly, that he (that is, Mr Mansfield) “didn’t want to force [Peter] into a situation he wasn’t comfortable about.”
[80] Finally, Mr Mansfield testified that Peter’s “prime focus in leaving those dispositions 3 to 7 were just to take one less problem off Jenny’s shoulders in the event that he predeceased her and he seriously believed he was going to die before her”, which Mr Mansfield said Peter had expressed to him “on more than one occasion.”
[81] And, in his cross-examination by Ms Blomfield for the opposing children, Mr Mansfield first, reiterated his earlier position, and secondly, in the following exchange, answered Ms Blomfield’s questions in this way:
Q.Can you confirm that you also had a discussion with Peter about what would happen if he outlived Jennifer?
A. Correct.
Q.Is it your understanding that if Jennifer died first, Melanie would be appointed executor?
A. Correct.
Q.Is it your understanding that if Jennifer died first, all of Peter’s estate would be divided amongst the children?
A. Yes.
Q. And that Brent’s share would be gifted over to his children?
A. Correct.
Q.Is it your evidence that there was an error in the drafting of clause 9, subclause (b)?
A. Correct.
Q.And that error is that the words “all my said estate” should have been “all my estate”?
A. Correct.
Q.Now you hadn’t noticed that error before Peter signed the will, had you?
A. No.
Q.And given that you hadn’t noticed that error, you couldn’t have brought that particular wording to Peter’s attention, could you?
A. No.
Q.And he gave you no indication that he was aware of the significance of the wording used, did he?
A. No, he wasn’t.
The law
[82]Section 3 of the Declaratory Judgments Act 1908 provides:
3 Declaratory orders on originating summons
Where any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any [legislative instrument] or any deed, will, or document of title, or any agreement made or evidenced by writing, or any memorandum or articles of association of any company or body corporate, or any instrument prescribing the powers of any company or body corporate; or
Where any person claims to have acquired any right under any such [legislative instrument], deed, will, document of title, agreement, memorandum, articles, or instrument, or to be in any other manner interested in the construction or validity thereof,—
such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such [legislative instrument], deed, will, document of title, agreement, memorandum, articles, or instrument, or of any part thereof.
[83] The purpose of this provision and the Declaratory Judgments Act generally is to provide a quick and inexpensive means of obtaining a judicial perspective in situations where the particular matter cannot be brought before the Court in its ordinary jurisdiction and where a declaratory judgment would provide appropriate relief.
[84] When probate of a will has been granted, this Court has jurisdiction to interpret the language used in that will.17 Although a grant of probate is conclusive as to the words of the probated will, the High Court, as a court of construction, can modify the will in certain limited circumstances where it is clear that an error has been made.
[85]As to this, the relevant construction principles were summarised by Fisher J in
Re Jensen as follows:18
(a)The overriding objective is to give effect to the intentions of the testator. All canons of construction must be subservient to that end. The testator’s intentions are to be gleaned from an objective appraisal of the testamentary documents viewed as a whole but in cases of doubt the wording is to be interpreted in the context of those facts which must have been in the contemplation of the testator.
(b)If the testamentary language is unambiguous and discloses no obvious error, the Court must give effect to it as it stands. The Court must
17 Re Young (decd) [1951] NZLR 70 (SC).
18 Re Jensen [1992] 2 NZLR 506 at 510 (citations omitted).
guard itself against conjecture as to the testator’s possible true intentions notwithstanding the actual testamentary provisions or as to what he might have intended had he been better advised …
(c)Where a literal reading of the testamentary provisions shows clearly that an error has been made and the true intention can be deduced from the testamentary documents not by conjecture but with reasonable certainty, the Court will give effect to the true intention …
(d)To that end the Court can in appropriate cases supply omitted words
…, and/or modify the words which have in fact been used … so long as this stems from a proper construction of the testamentary documents as a whole.
[86]In Nevill’s Law of Trusts, Wills and Administration, the learned author states:19
17.3.1 The armchair principle
When construing a will, the court has the right to ascertain all the facts known to the will-maker at the time he or she made the will. Thus, the “armchair principle” has been developed, by which the court is able to read a will from the position of the will-maker executing it: that is, as if sitting in the will-maker’s armchair:20
…the well-known armchair principle allows the Court by means of extrinsic evidence to be made aware of such facts and circumstances as were known to the testator at the time the will was made. Evidence is admissible to amplify the view which the testator had from his armchair but not in order to supply details of later events, happenings and relationships as might be thought to have some bearing on his testamentary capacity.
In this way, circumstantial evidence of the will-maker’s intended meaning may be admitted to aid construction in cases of uncertainty …
Analysis
[87] From the words of Fisher J in Re Jensen, the overriding objective of the relevant construction principles is to “give effect to the intentions of the testator.”21 A court is to give effect to a will as it stands if the testamentary language is unambiguous and discloses no obvious error. However, where a literal reading of the testamentary provisions shows clearly that an error has been made, the Court is to give effect to the true intention if that can be deduced from the testamentary documents. The ambiguity which the opposing children say exists here is the use of the words “all my said estate”
19 Breach, above n 14.
20 Re Beckbessinger [1993] 2 NZLR 362 (HC) at 367; and see also Bethell v Bethell [2014] NZCA 442, [2015] NZAR 1620.
21 Re Jensen, above n 18, at 510.
in cl 9(b) of Peter’s will, and whether that is meant to be something different from the property described as “my said estate” in cl 8.
[88] It is argued for those children that, if their father Peter’s intention was that cls 3–7 of his will would apply regardless of whether Jennifer survived him or not, then cl 9 (which applied if Jennifer pre-deceased Peter) needed only to appoint an alternative executor and trustee and to deal with the property which Jennifer would otherwise have received. In that situation there would have been no need to use the phrase which appears in cl 9(b) of the will “all my said estate”. It is suggested that some different meaning from the words “my said estate” in cl 8 was intended by Peter as will-maker here.
[89] This is confirmed by Mr Mansfield. In his evidence specifically he states that: “The reference to ‘my said estate’ in paragraph 9(b) was an innocent drafting error and was not picked up prior to Peter signing the will.”22 Mr Mansfield says also and confirms on several occasions, that:
The disposition to Glenn (outlined in paragraph 7 of the will) was only to be made if Peter pre-deceased Jennifer.
[90] I accept that Mr Mansfield, from his evidence, had a very clear recollection of what Peter’s instructions and intentions for his will were. Given that Mr Mansfield is in no doubt there was an ambiguity caused by an “innocent drafting error” on his part, I am satisfied here that extrinsic evidence is admissible to help resolve this uncertainty. I consider this position from the viewpoint as if sitting in Peter’s armchair as the will-maker.
[91] At the time Peter made his 21 November 2019 will, from all the evidence before me, in my view the facts known to Peter and his intentions were:
(a)He believed, based on his then very recent health scare, that he would die before his wife Jennifer. This was a view that he also held throughout.
22 Affidavit of Mr Mansfield, 1 November 2022, at [16].
(b)It was his view that many of the gifts in cls 3–7 of the Will were of items for which Jennifer would have no particular use. An exception was the gift in cl 3 of a one-quarter share in the Meeanee Road property to Glenn which, from evidence before me, I am satisfied was done to ensure that Jennifer would have a place to live for the rest of her lifetime. As to this aspect, in her 27 February 2023 affidavit at [38], Melanie deposes to discussions with her father Peter around 28 November 2019, a week after the Will was signed, where:
… his [Peter’s] overriding concern was for Mum to be taken care of if he died first. He said the best way to do that was to ensure we couldn’t as a family sell the property from under Mum and that could be achieved by leaving Glenn enough equity in the property [a one-quarter share] so Glenn couldn’t sell it either but could then continue to operate Dudding Contractors from the premises and ensure Mum would be cared for – for her lifetime interest.
(No doubt a concern Peter may have had might have been other possible family pressures — or a feeling of such by Jennifer wishing to please — to sell the property.)
(c)On the day he signed his will, Peter met with Mr Mansfield and from Mr Mansfield’s evidence they “went over the contents of the draft will again”.
(d)The clear evidence from Mr Mansfield is that Peter wished to distribute his entire estate to his seven living children (along with some of his grandchildren, being the issue of his deceased son, Brent) if Jennifer pre-deceased him. Mr Mansfield’s belief, despite the “innocent drafting error”, was that cl 9 still achieved that end.
(e)Although cl 9 of the will does not specifically say that it revokes the preceding clauses of the will, that is how both Mr Mansfield and Peter understood the clause to operate.
(f)Neither Mr Mansfield nor Peter at any time noticed the “innocent drafting error” involving the use of the words “all my said estate” instead of the intended words “all my estate”.
(g)Mr Mansfield’s firm evidence addressed the invitation he had given at the time to Peter to leave the one-quarter share in the Meeanee property to Glenn immediately. Mr Mansfield’s evidence was that Peter’s intention was that, although the provision in cl 3 was to remain in his will (but only in the event that Jennifer survived him), at that point Peter did not have any wish to leave this interest in the property outright to Glenn.
[92] I am satisfied, having seen Mr Mansfield give his evidence, that as an experienced lawyer, having been involved in preparing hundreds of wills, he had a clear recollection in this case of what the instructions were from his brother-in-law Peter, a man he knew well. As he repeated in his evidence on a number of occasions, this included Peter’s firm direction that if Jennifer died before Peter, he wished to distribute his entire estate to his seven living children and the children of his deceased son Brent. As I see it this evidence of Mr Mansfield is not conjecture as to Peter’s possible true intentions here. This is a case of a long-serving lawyer very experienced in will-making giving careful evidence as to the clear intentions and instructions of Peter, a friend and relative he had known for many years.
[93] Words in a will are generally to be given their ordinary meaning. But I accept, too, that the words Peter used here in cl 9 of his will may to some extent have made his will ambiguous and uncertain on its face. As such the Court is entitled to use external evidence to interpret those words and, in particular, to include evidence of Peter’s testamentary intentions. Sections 32(2) and (3) of the Wills Act 2007 make this clear.
[94] All this, in my view, is supported to a limited extent by the evidence of both Melanie and her husband Peter Thomas about their discussions with Peter over what cl 9 in his will meant and his understanding of this.
[95]Given all these matters, I conclude that:
(a)Peter did not intend that cls 3 to 7 of his will would remain relevant and be given effect to if Jennifer pre-deceased him, as she did.
(b)The words “all my said estate” in cl 9(b) of the will effectively here have the meaning “all my estate” so as to give effect to Peter’s testamentary intention, which was that in the event of Jennifer pre-deceasing him, all of his estate was to be divided amongst his children with Brent’s share going to his children who were Peter’s grandchildren.
(c)The will, therefore, contained a clerical error with the consequence that it did not give full effect to Peter’s instructions.
(d)By his own evidence Mr Mansfield accepted that an innocent drafting error or clerical error was made and this was not picked up prior to Peter signing his will.
[96] Section 31 addresses “clerical errors” and misdescriptions and, as Allan J said in Re Ioane (decd):
There can be no doubt that s 31 now expressly empowers the Court to rectify a will in order to give effect to a will-maker’s intentions.23
[97] And, addressing s 31, and misdescriptors in wills, the authors of Nevill’s Law of Trusts, Wills and Administration note at [17.5](d):
Sometimes the misdescription is not in relation to the property itself but in respect to an interest or share in it. In Re Estate of Brown,24 the will-maker intended to leave her spouse a life interest in a house and her half share in that property to her children. The will was purportedly drafted correctly but, through some error, the electronic document had been altered, and had come to read that the half share would fall into residue, which would benefit the will-maker’s husband. Section 31 was here invoked to correct the will to properly dispose of the share.
23 Re Ioane (decd) High Court Auckland CIV-2009-404-5527, 27 October 2009 at [25].
24 Re Estate of Brown [2022] NZHC 1183.
In passing I note that the situation that occurred in Re Estate of Brown has certain similarities to the present case.
[98] I do need to say finally that I accept Peter appeared to have cogent reasons, stated within the Will itself, as to why he wanted to leave the specific bequests to the persons named in clauses 3,4, and 5 particularly. In light of those reasons it is perhaps at one level unusual that those gifts should be revoked if Jennifer died before him. I leave that aspect here on one side, however. Mr Mansfield’s first-hand and forthright evidence (as a lawyer with a strong family connection and long-term acquaintance with Peter) to the effect that Peter did wish to distribute his entire estate to his seven living children along with Brent’s children if Jennifer pre-deceased him, and in his frank acknowledgement of the clerical error, in the will, are compelling here.
Result
[99] To give effect to Peter’s intentions and to correct this innocent drafting error which has been made (an error, to his credit, acknowledged by Mr Mansfield), it is appropriate in my view for this Court to interpret the words in cl 9(b) of the will “all my said estate” to mean “all of my estate both real and personal of whatsoever kind and wheresoever situate”, and also for completeness to make an order correcting Peter’s will to delete the words in cl 9(b) “all my said estate” and to substitute in their place the words “all of my estate both real and personal of whatsoever kind and whatsoever situate”.
[100] Declarations and orders to this effect are now made, pursuant to ss 31 and 32 of the Wills Act 2007 and s 3 of the Declaratory Judgments Act 1908 as relevant.
[101] It will be apparent that Glenn’s second application noted at [8](b) and [68] herein (seeking the declaration and orders outlined at [72] above) must therefore fail. It is dismissed.
Costs
[102] Before me, all counsel requested that I should reserve costs, to give them an opportunity to make further submissions to me regarding that aspect.
[103]Costs are therefore reserved.
[104] Counsel are encouraged to liaise with a view to resolving the issue of costs between themselves. In the event that agreement on costs cannot be reached, then memoranda may be filed (sequentially), each memorandum to be no more than five pages in length. These are then to be referred to me. In the event that no party indicates they wish to be heard on the question of costs, I will decide that issue based upon all the material then filed.
Gendall J
Solicitors:
G Kelly Law for the Applicant
Lunn & Associates Limited for the First Respondent
Sainsbury Logan & Williams for the Second to Eighth Respondents Copy to H Button
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