Estate of Hudson

[2025] NZHC 281

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-565

[2025] NZHC 281

IN THE MATTER

of the Wills Act 2007

AND

IN THE MATTER

of an application for an order that a document be declared a valid will of the deceased Jacqueline Dorothy Hudson

MURRAY WILLIAM DAHM

Applicant

Hearing:	24 February 2025
Appearances:	B J Williams for Applicant
Judgment:	25 February 2025
Reissued:	26 February 2025

JUDGMENT OF McHERRON J

[1]                 Murray Dahm applies by way of originating application for an order under s 14 of the Wills Act 2007 (Act) that a document be declared a valid will of Jacqueline Dorothy Hudson. The document is  a  draft  will  (2024  Draft Will),  prepared  on Ms Hudson’s instructions and sent to her just before she died on 28 May 2024, aged 73 years.

[2]                 Mr Dahm also seeks a minor correction to cl 5.8 of the 2024 Draft Will to the name of the charity referred to in that clause.1

1      I can order such a correction under s 31 of the Wills Act 2007.

ESTATE OF HUDSON [2025] NZHC 281 [25 February 2025]

[3]                 The value of Ms Hudson’s estate is estimated at approximately $3.5 million, and comprises rental properties, her residence, various other investments and personal chattels. Ms Hudson was never married nor in a civil union and had no children.

[4]                 Ms Hudson’s  last  known  executed  will  is  dated  10 November  2017 (2017 Will). All the beneficiaries under the 2017 Will were served with Mr Dahm’s application. Stephen Hudson, Ms Hudson’s brother, filed a notice of opposition. However, Mr Hudson withdrew his opposition on 8 November 2024. In a memorandum Mr Hudson filed on that date, he indicated he will abide by the Court’s decision. Mr Hudson confirmed he was satisfied as to Ms Hudson’s testamentary capacity and that he did not  object  to  the  2024  Draft Will  as  an  expression  of Ms Hudson’s testamentary intention.

[5]                 Absence of opposition is a factor counting in favour of the application being granted. But the Court must still assess the application on its merits, according to law.2 Under r 7.40 of the High Court Rules 2016,3 if a party is neither present nor represented at the hearing of an application, the judge may determine the application in the party’s absence in any manner that appears just.  I heard submissions from   Mr Williams appearing on behalf of Mr Dahm. Neither Mr Hudson, nor any other party, appeared.

Background

[6]                 The 2017 Will appointed three of Ms Hudson’s siblings, Peter John Hudson, Stephen Bruce Hudson and Michele Gully, as well as Mr Dahm, as the executors and trustees.

[7]Under the 2017 Will:

(a)The cost of business class airfares would be paid to assist two of     Ms Hudson’s friends to attend her funeral service.

2      Mihinui v Attorney-General for the Ministry of Education [2017] NZHC 654 at [13].

3      Rule 7.40 is one of the rules that applies to proceedings commenced by originating applications, under r 19.10.

(b)Ms Hudson gave her personal chattels to her sister Michele Gully.

(c)Ms Hudson gave $10,000 to the new caregiver of her cat, Kippy. Upon Kippy’s death, the balance of these funds was to be paid to the Wellington SPCA Inc.

(d)The residue of Ms Hudson’s estate was to be paid to her four siblings, Peter Hudson, Stephen Hudson, Michele Gully and Debra Gould.

[8]                 In late 2023, Ms Hudson advised Mr Dahm that she would update her will when he returned from leave in January 2024. She had reviewed and changed her will every few years previously. Her solicitors, Greg Kelly Trust Law, held Ms Hudson’s wills from 1999, 2004, 2005, 2011 and the 2017 Will.

[9]                 Ms Hudson and Mr Dahm met on 23 January 2024 and discussed the changes she wished to make. She had decided that instead of giving the residue of her estate to her siblings, she would leave it to charities she had selected.

[10]              On 26 February 2024, Ms Hudson advised Mr Dahm that she had written out her new will and was comfortable with it. All that was left was for her lawyers to write it up and add the finishing touches.

[11]              On 20 March 2024, Ms Hudson met with Carolynn McLaughlin to prepare her new will. Ms McLaughlin is a legal executive employed by Greg Kelly Trust Law Ltd of Wellington. She is a fellow of the New Zealand Institute of Legal Executives.

[12]              Ms Hudson told Ms McLaughlin she had been working on her will since January 2024. She handed Ms McLaughlin her handwritten will instructions and an annotated copy of her 2017 Will, showing the changes she wished to make to it. In a meeting lasting nearly two hours, Ms Hudson and Ms McLaughlin went through the will instructions point by point.

[13]              Ms Hudson proposed that, instead of giving her siblings the residue, she would leave cash gifts to each of Peter, Stephen, Michele and Debra. In addition, Ms Hudson proposed to give $10,000 each to her cousins Gillian Boyle and Barbara Gledhill.

[14]              Ms McLaughlin started drafting Ms Hudson’s will on 2 April 2024. The drafting took some time because Ms McLaughlin needed to check the correct name and incorporation details for the charities. She also needed to discuss various amendments with Ms Hudson via email including to ensure the correct charity was selected in accordance with her wishes.

[15]              Ms Hudson sent Ms McLaughlin an email on 30 April 2024 stating “I will advise immediately if there were any further adjustments or changes that are needed to be included in my new Will”.

[16]              The final communication from Ms Hudson was an email on 20 May 2024 in which she asked whether it would make preparation of her new will easier and cheaper if she reduced the number of charities.

[17]              Ms McLaughlin and Ms Hudson were scheduled to meet on 22 May 2024, but Ms Hudson cancelled this meeting and indicated she preferred to communicate by email.

[18]              On 27 May 2024, Ms McLaughlin sent two advice letters to Ms Hudson with the 2024 Draft Will. In her letters, Ms McLaughlin summarised and explained the new will and the trustees’ duties under it.

[19]              Unfortunately, Ms Hudson died the next day, before the 2024 Draft Will could be finalised and signed. However, shortly before she died, she told:

(a)Mr Dahm that her wishes as communicated to her solicitors would be binding; and

(b)her sister Debra that “it would hold up in a court of law”.

[20]              Mr Dahm provided the following helpful comparison of the 2017 Will and 2024 Draft Will, which I have reproduced with some minor edits:

Comparison table of 2017 Will and 2024 Draft Wills
Description/Item	2017 Will	2024 Draft Will
Executors & Trustees	Peter, Stephen, Michele & Murray	Michael Gould (Michael), Debra & Murray
Business class airfares	Jim & Barbara Short	N/A
Personal chattels	Michele	Michele
Jewellery (excluding watches & family photographs)	Michele	Michele
Watches and sunglasses collections	Michele	Michele and Debra equally
Toyota Corolla	Michele	Michael and Debra
Rest of personal chattels	Michele	Peter, Stephen, Michele and Debra equally
Kippy (cat)	$10,000 to caregiver. Upon death of Kippy balance of funds to Wellington SPCA Inc.	$15,000 to caregiver. Upon death of Kippy balance of funds to Wellington SPCA Inc.
Cash gifts	N/A	$40,000 to each of Peter, Stephen, Michele & Debra. $10,000 to each of Gillian Boyle and Barbara Gledhill.
Residue	Peter, Stephen, Michele and Debra equally	Equally among: -           Wellington Free Ambulance Service Inc. -           The Life Flight Trust -           RNZSPCA (Wellington) -           RNZSPCA (Auckland) -           Royal New Zealand Foundation of the Blind Inc. -           The Order of St John National Office -           Mary Potter Hospice Forever Foundation -           The Starship Foundation -           Te Omanga Hospice Foundation -           Wellington Bird Rehabilitation Trust -           The Stroke Foundation of New Zealand Ltd (Wellington)

[21]              The main substantive difference between the 2017 Will and the 2024 Draft Will concerns the residuary beneficiaries of Ms Hudson’s estate. The 2024 Draft Will provides for 11 charities to take the residue equally. However, under the 2017 Will, Ms Hudson’s siblings would have inherited the residue equally. Other differences in the 2024 Draft Will include a $40,000 cash gift to each sibling, and removal of the gift of business class airfares, as the individuals named were no longer able to travel for Ms Hudson’s service.

Applicable law

[22]Section 14 of the Act provides:

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.

(3)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.

[23]An application under s 14 is to be proved on the balance of probabilities.

My assessment

[24]              I  have  read  the  comprehensive  affidavit  of  Ms McLaughlin  sworn  on  23 August 2024. Ms McLaughlin drafted both the 2017 Will and the Draft 2024 Will.

[25]              I am satisfied the 2024 Draft Will, although not executed, is expressed in clear, comprehensive and unambiguous terms  and was prepared with the  assistance of  Ms McLaughlin.

[26]              Mostly, the 2024 Draft Will faithfully reflects Ms Hudson’s  instructions to Ms McLaughlin, as discussed and adapted when they met and over subsequent email correspondence. However, in two respects there is a departure:

(a)Ms Hudson wanted to pay out the gifts to her siblings on a staggered basis over four years. She also wanted to stagger the payments to the charities over 10 years. Ms McLaughlin had concerns whether the trustees would be prepared to administer the estate for such a long period. She discussed her concerns with Ms Hudson who was immediately receptive and said that she was quite content to take     Ms McLaughlin’s advice on that point. Ms McLaughlin said she would discuss that with one of the directors of Greg Kelly Trust Law and advise Ms Hudson further. When Ms McLaughlin wrote to Ms Hudson on 27 May 2024 with the 2024 Draft Will, she advised that the bequests to her siblings and the charities would be better made in one go rather than in staggered payments. Ms McLaughlin’s advice is as follows:

As set out in our email to you of 9 April 2024, the nature of the staggered payment of bequests to your siblings and the charities complicated drafting, and input from a solicitor in the firm was required.

As you will be aware, once your executors have brought all your assets into the estate, ie by closing bank accounts etc, they then become trustees and the Trusts Act 2019 (“the Act”) applies.

As trustees they will be bound by a default duty in the Act not to fetter a trustee’s discretion, ie not to restrict how a trustee deals with your estate.

Also under the Act a beneficiary under a Will is entitled to ask for their full inheritance and the trustees would probably agree to that. There is therefore little point in having a staggered payment system when it can be undone.

Another consideration is that the administrative cost in making payments over so many years will far outweigh any benefit to the estate.

For the reasons outlined above, we have drafted your new Will on the basis that bequests are made in one go.

(b)Ms Hudson’s handwritten notes refer to legacies of $10,000 to each of her intended executors to cover expenses and/or costs in the execution of her will. However the 2024 Draft Will does not specify payment of legacies to the named executors. Ms McLaughlin gave a supplementary affidavit which was handed up at the hearing explaining that she did not recall Ms Hudson providing her with instructions about payments of legacies of $10,000 to each of the executors during her meeting with her on 20 March 2024. Ms McLaughlin annexed the file note of her meeting which also does not refer to legacies to the executors. Ms McLaughlin deposed that she is fairly confident that Ms Hudson did not mention payment of the legacies and so that is why that is not contained in the 2024 Draft Will as Ms McLaughlin drafted it.

[27]              Having reviewed Ms McLaughlin’s evidence of her discussions and correspondence with Ms Hudson relating to the preparation of the 2024 Draft Will, I am satisfied that in respect of these matters, the 2024 Draft Will, rather than the handwritten instructions, best reflects Ms Hudson’s testamentary intentions.

[28]              I am satisfied that Ms Hudson trusted Ms McLaughlin (supported by the solicitors at Greg Kelly Trust Law) to advise her, as to the best way to express her testamentary intentions. I  am  satisfied  the  evidence  indicates  it  is  likely  that  Ms Hudson would have accepted Ms McLaughlin’s advice on these matters. I am also satisfied that removing the staggering of payments to the siblings and charities streamlines the administration of the estate in a way that does not disadvantage any of those beneficiaries. To the contrary, if these sums do not need to be administered and paid out over a longer period the beneficiaries are likely to receive more from the estate.

[29]              In relation to the legacies to the executors, I am satisfied that this was a matter that may have been in Ms Hudson’s mind during her early thinking in relation to the 2024 Draft Will, but that it no longer formed part of her instructions at and after her

meeting with Ms McLaughlin on 20 March 2024. In that regard also, I am satisfied that the 2024 Draft Will is a better reflection of Ms Hudson’s testamentary intentions than the handwritten notes.

[30]I am satisfied on the balance of probabilities that the 2024 Draft Will:

(a)appears to be a will making specific bequests to named beneficiaries, appointing Michael Gerard Gould, Debra Gould,4 and Murray William Dahm as executors and trustees and otherwise containing all the hallmarks of a will; and

(b)does not comply with s 11 of the Act because it  was not  signed by Ms Hudson, nor witnessed by independent persons; and

(c)expresses Ms Hudson’s testamentary intentions that were:

(i)initially handwritten on extensive notes;

(ii)annotated onto a copy of the 2017 Will;

(iii)discussed at length with Ms McLaughlin, who offered advice based on her own extensive experience and as supported by lawyers at Greg Kelly Trust Law; and

(iv)encapsulated by Ms McLaughlin into the 2024 Draft Will in light of her discussions and correspondence with her client.

[31]              I accordingly grant the application and make an order declaring the 2024 Draft Will to be a valid will. I also make the correction to cl 5.8 of the 2024 Draft Will.

Result

[32]I grant the application by Mr Dahm:

4      The 2024 Draft Will misspells the name Debra as Deborah. Mr Dahm did not ask for this error to be corrected and it is unnecessary to do so; it is clear from the context who is intended.

(a)The 2024 Draft Will of Ms Hudson is declared to be a valid will.

(b)I correct the name of the charity referred to in cl 5.8 of the validated will to “The Royal New Zealand Society for the Prevention of Cruelty for Animals Inc (CC22705)”.

Costs

[33]              Mr Dahm also filed an application for costs in the sum of $4,063 reflecting a calculation, on a 2B basis, of the steps taken by Stephen Hudson up until the time he withdrew his opposition to Mr Dahm’s application. Mr Dahm proposes that costs be paid by way of a deduction from Mr Hudson’s $40,000 beneficial interest in the deceased’s estate.

[34]              Because Mr Hudson has not been served with the costs submissions, I direct Mr Williams to email this judgment without delay to Mr Hudson (at the same time as he sends it to other family members) together with a copy of Mr Dahm’s costs submissions. In Mr Williams’ covering email he is to draw Mr Hudson’s attention to the following direction:

Stephen Hudson is directed to provide any response to Mr Dahm’s submissions on costs no later than 14 March 2025, following which date I will determine Mr Dahm’s application for costs against Mr Hudson without a further hearing. I will have regard to Mr Hudson’s submissions on costs only if he emails them to the Court (to [email protected] attention Raphael Renata Case Manager) before that deadline of 14 March 2025.

McHerron J

Solicitors:
Bryce Williams Law Limited, Lower Hutt for Applicant