Estate of Dodds

[2017] NZHC 1995

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-1908 [2017] NZHC 1995

IN THE MATTER	of Section 14 of the Wills Act 2007
AND
IN THE MATTER	of an application by DONNA MAREE POWLE of Auckland, Solicitor for an order that a document be declared a valid will of the deceased RICHARD HAMMOND DODDS of Auckland, Retired

Hearing:	On the papers
Appearances:	N M Hodson for Applicant
Judgment:	21 August 2017

JUDGMENT OF LANG J

[on application for order declaring will to be valid]

This judgment was delivered by me on 21 August 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

IN THE ESTATE OF RICHARD HAMMOND DODDS [2017] NZHC 1995 [21 August 2017]

[1]      Richard Hammond Dodds died at Auckland on 17 July 2017.  His solicitor, Donna Maree Powle, seeks an order under s 14 of the Wills Act 2007 that a draft will prepared on Mr Dodds’ instructions in mid-July 2017 is declared valid as his last will.

Background

[2]      Mr Dodds suffered a stroke in June 2017.  At that time his operative will was a  document  dated  27  July  2010,  in  which  Mr  Dodds  appointed  Messrs  Brian Atkinson and Robert Swan as his executors and trustees.   That will contained the following essential provisions:

(a)      Mr Dodds bequeathed all his personal chattels and any motor vehicle he might own at the date of his death to his wife Lynne Catherine Davie if she survived him.

(b)The  trustees  were  to  transfer  Mr  Dodds’  residuary  estate  to  the trustees for the time being of the Richard Hammond Dodds Family Trust (the Trust).

(c)      Mr Dodds appointed Mr Atkinson as a trustee of the Trust pursuant to the power of appointment granted to Mr Dodds under a deed of trust dated 2 February 2000.

[3]      Mr Dodds and his wife consulted Ms Powle on 5 July 2017.  Mr Dodds had earlier suffered a stroke in June 2017.  The purpose of the meeting with Ms Powle was to review and discuss Mr Dodds’ estate plan.   During that meeting, and after discussion, it was decided that Mr Dodds would amend his will to provide for Ms Powle and Mr Dodds’ accountant, Mr Aaron Charles Carter, to be the executors and  trustees  of  the  new  will.    The  will  was  also  to  incorporate  new  burial instructions, and was to appoint Mr Carter (through a trustee company of his choosing) as a trustee of the Trust.

[4]      Mr Dodds advised Ms Powle that the reason for the proposed changes to his will flowed from the fact that Ms Powle’s law firm and Mr Carter’s accounting firm

had been involved with him and his family for many years.   For that reason Mr Dodds considered they were ideally suited to carry out his wishes under the will and, in the case of Mr Carter, the deed of trust.  Ms Powle is satisfied that Mr Dodds had the  necessary  mental  capacity  as  at  5 July  2017  to  enter  into  legal  documents notwithstanding the stroke he had suffered.

[5]     Following the meeting on 5 July, Ms Powle prepared a draft will that incorporated all of Mr Dodds’ instructions.  This was ready for Mr Dodds to sign at an appointment that had been arranged for Thursday 13 July 2017.  Unfortunately, however, Mr Dodds suffered a further stroke on or about 12 July 2017 and thereafter did not regain sufficient mental capacity to sign the new will before he died a week later.

[6]      The executors under the will dated 27 July 2010 have signed renunciations of their positions under that will.  In addition, Mr Dodds’ wife and his two daughters have signed formal consents to the orders Ms Powle seeks.

[7]      Mr Carter has also sworn an affidavit confirming that Mr Dodds consulted him on 6 July 2017 to review and discuss his estate plan.   During that meeting Mr Dodds advised Mr Carter of the discussions he had held with Ms Powle the previous day.  He also asked if Mr Carter was prepared to be the executor of his will jointly with Ms Powle, and to become a trustee of his trust.   Mr Carter says he agreed to accept appointments to both positions and advised Mr Dodds accordingly.

[8]      Mr Dodds also advised Mr Carter that the reasons for his decision lay in the fact that Mr Carter’s office and Ms Powle’s office had been involved with his family for many years, and were therefore suited for the positions to which he wished to appoint them.  Like Ms Powle, Mr Carter is satisfied that Mr Dodds had the requisite mental capacity to make these decisions and to sign legal documents at that time.

Decision

[9]      Given the background set out above, I am satisfied that the draft will that

Ms Powle prepared accurately reflects Mr Dodds’ testamentary intentions at the time

of his death.  In addition, all persons who might be affected by the order Ms Powle seeks have consented to it.

[10]     I therefore make orders in terms of the originating application dated 2 August

2017.

Lang J

Solicitors:

Powle & Hodson, Auckland