Estate of Hudson

[2023] NZHC 411

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-416

[2023] NZHC 411

IN THE MATTER

of the estate of JEAN HUDSON

BETWEEN

IAN STUART DALLEY and OLIVER MARTIN ROBERTS

Applicants

Hearing:	On the papers
Appearances:	O M Roberts for Applicants
Judgment:	7 March 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 7 March 2023 at 9.15 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE HUDSON [2023] NZHC 411 [7 March 2023]

Introduction

[1]                 The applicants, Mr Ian Dalley and Mr Oliver Roberts, as executors of the estate of the late Jean Hudson (the deceased), apply for an order that a document be declared a valid codicil to the will of the deceased under s 14 of the Wills Act 2007 (the Act).

Background

[2]                 The relevant background is set out in the Deed of Family Arrangement, dated 21 February 2023.

[3]                 The deceased died on 31 May 2022, leaving a will dated 9 September 2014 (the 2014 will). In July 2021 the deceased gave instructions to amend her will by codicil to increase the legacy payment to her nephew, David Hudson, from $10,000 to

$30,000. The residuary beneficiaries under the 2014 will, being the deceased’s sister Anne Lucas and the J G Hudson Family Trust, remain unaltered, and receive the residue of the estate in equal shares.

[4]                 The proposed codicil was prepared by her lawyers, Duncan Cotterill, but could not be executed in the requisite form due to restrictions on visiting the deceased as a result of the COVID-19 pandemic. It is this document which is sought to be validated under s 14 of the Act.

Procedural background

[5]                 The application was made without notice to the other beneficiaries, with the applicants noting they remained the same despite the codicil. However, when the matter came before Eaton J he considered  it  unsatisfactory  that  the  interests  of Ms Lucas and the trustees of the J G Hudson Family Trust were not dealt with. He required that either the consent of the beneficiaries to the application be obtained or the application should be brought on notice and served on the beneficiaries. I agree that both are affected parties as the consequence of validating the codicil is to reduce the residue of the estate which is available to the residuary beneficiaries.

[6]                 The consent of the J G Hudson Family Trust has now been obtained through a Deed of Family Arrangement which has been provided to the Court. The other

beneficiary, Anne Lucas, is subject to a financial management order issued in New South Wales under the NSW Trustee and Guardian Act 2009 and her property is managed by the NSW Trustee and Guardian (the Guardian). As her financial manager, the Guardian advises it neither consents to, nor opposes, the order sought in the High Court of New Zealand.

[7]                 I am satisfied in the circumstances that all potentially affected parties have been served with the application and either consent to its validation or raise no grounds for opposing the order.

Law

[8]                 Pursuant to s 14 of the Act, this Court has the power to validate a document that appears to be a will but does not comply with s 11 of the Act if it is satisfied that the document expresses the deceased person’s testamentary intentions.

[9]                 A codicil is included in the definition of a “will” under s 8 of the Act, and thus a codicil which has not been executed in accordance with s 11 of the Act can be validated in the same way as a document which is intended to be a new will.1

[10]              Section 11 of the Act requires a will to be in writing signed by or on behalf of the will-maker and witnessed by two other persons who also sign the document. That has not occurred here because of the restrictions on visiting the deceased at the time she instructed the codicil to be prepared.

[11]              The next requirement is that the document “appears to be a will”. Given the document was prepared by the deceased’s lawyers in the form of a codicil and is described as a codicil, it readily meets this requirement.

[12]              Finally, the Court must be satisfied that the document expresses the deceased person’s testamentary intentions. In deciding this the Court can have regard to evidence on the deceased person’s testamentary intentions and statements made by the deceased.2

1      For an example of a codicil being validated, see Campbell v Campbell [2020] NZHC 2395.

2      Wills Act 2007, s 14(3).

Analysis

[13]              The proposed codicil to the 2014 will amends cl. 4.1 of that will as follows: “I give the sum of thirty thousand dollars ($30,000) to my nephew David Hudson if he shall survive me.” The sum in the 2014 will was $10,000.

[14]              The deceased’s intention to increase her legacy payment to her nephew is confirmed by her solicitor Mr Roberts and her financial advisor, Mr Dalley in affidavits they have provided to the Court. Mr Robert’s affidavit also attaches the contemporaneous email Mr Dalley sent to Mr Roberts after he met with the deceased in July 2021 which clearly records her intention to change the will in this way. Her solicitor then confirms that the reason the document was not formally executed as a codicil was because of restrictions on visiting the deceased because of the COVID-19 pandemic, and not because she did not intend to change her will in this way.

[15]              The fact that the codicil was prepared by the deceased’s lawyers, on her instruction and after discussing the matter with her financial adviser, satisfies me that the document sought to be validated reflects the deceased’s testamentary instructions and should be validated as a codicil to her 2014 will.

Conclusion

[16]              The application to declare a document to be a valid codicil to the deceased’s will is granted.

[17]              An order is made in terms of the draft order accompanying the application, noting that the document in question is the original of the document a copy of which is  annexed  as  Exhibit  C   to  the  affidavit  of  Mr  Oliver  Martin  Roberts   dated  7 September 2022.

Solicitors:
Duncan Cotterill, Christchurch