Estate of Lund - [2025] NZHC 1088

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2025-412-29

[2025] NZHC 1088

UNDER Wills Act 2007, s 14

IN THE MATTER OF

the estate of SUZANNE LOUISE LUND (deceased)

RUSSELL VALDEMAR LUND

Applicant

Hearing: On the Papers

Counsel:

M Freeman for Applicant

Judgment:

7 May 2025

JUDGMENT OF MANDER J

This judgment was delivered by me on 7 May 2025 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

RE ESTATE OF LUND [2025] NZHC 1088 [7 May 2025]

[1] Russell Lund (Russell) has applied to validate an unsigned will made by his deceased wife, Suzanne Lund (Suzanne), as her last will and testament under s 14 of the Wills Act 2007 (the unsigned will). Suzanne had made a previous will on 22 December 2011 (the 2011 will). Russell is the named executor of both the 2011 will and the unsigned will.

Background

[2] Russell and Suzanne were married for 25 years. Suzanne died on 25 January 2025 from pancreatic cancer after receiving a terminal diagnosis in February/March 2024. Suzanne had the draft will prepared shortly before she died, but died without signing it. Both the 2011 will and the unsigned will were prepared by the Lunds’ solicitors in Auckland.

[3] Suzanne was first diagnosed with cancer in 2021, but was not told by her doctors the cancer was terminal until early 2024. Suzanne spent the rest of that year achieving various personal goals and putting her affairs in order. As part of that process, on 6 May 2024, she contacted the Auckland lawyers to update her will. Suzanne confirmed with her solicitor on the phone that the reason she wanted to update her will was her cancer diagnosis. After discussing the changes she wanted to make to her will with Russell, she contacted her solicitors in June summarising the amendments she wished to make. A first draft of the unsigned will was prepared and provided to Suzanne.

[4] Later that month, Russell and Suzanne attended on their solicitors by phone and discussed the changes. Suzanne instructed the solicitors to make further amendments to the unsigned will and provided details of bank accounts in relation to a specific bequest Suzanne wished to make to her children in the unsigned will. In July, Suzanne confirmed to her solicitors by email (copied to Russell) that “everything looked good to her” in respect of the unsigned will.

[5] Russell has sworn an affidavit in support of the application in which he confirms the reasons for Suzanne wishing to update her will. Those changes are partly designed to reflect the fact that their children were now older, living in different parts of the world, and Suzanne wanted to ensure that money from her bank accounts would

go to her children so they could travel to see each other after she died and be able to stay in touch. Russell has deposed that he has no doubt the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 1088
Decision Date: 7 May 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Russell Waldemar Lund applied for the validation of an unsigned will of his deceased wife, Suzanne Louise Lund. The application was made under section 14 of the Wills Act 2007. Suzanne had made a previous will on 22 December 2011 and had drafted a new will in June 2024 but died without signing it. The key issue for the court was whether the unsigned will accurately reflected Suzanne's testamentary intentions. This required the court to determine if the document was clear, immediate, and unconditional, and whether Suzanne's failure to sign the document was due to a genuine oversight rather than any uncertainty about her intentions.

The court found that the unsigned will did indeed reflect Suzanne's final testamentary intentions. It was established that Suzanne had been actively involved in updating her will to reflect her changed circumstances, including her terminal illness diagnosis and the growth of her family. The court noted that Suzanne had approved the unsigned will in July 2024, and the changes in the will, such as the specific gifts to her children and the removal of a bequest to a charity, were deliberate decisions. The six-month delay in signing the will was attributed to Suzanne's preoccupation with other matters in the time leading up to her death, including personal projects and family activities. The court concluded that Suzanne's failure to sign the will was not due to any uncertainty about her intentions, but rather a consequence of her prioritising other tasks before her untimely death.

As a result, the court granted the application and declared the unsigned will of Suzanne Louise Lund, prepared by her lawyers on or around 11 June 2024, to be her last will and testament. This decision ensures that Suzanne's final wishes, as reflected in the unsigned will, will be carried out.

Orders