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 unsigned will represents Suzanne’s testamentary intentions. He states that she had approved it but had just not got around to signing it. In that regard, he opines that Suzanne “just ran out of time” and that she was prioritising so many other things that she was attending to before her death, which he has detailed in his affidavit.

Leave to proceed without notice

[6]    Russell seeks leave to proceed with the application to validate the unsigned will without notice on the basis that all affected beneficiaries have consented to its validation. All the affected beneficiaries have made affidavits in support of the application. These include Russell and Suzanne’s children—Catherine, Daniel and Ben—all of whom receive different specific gifts (although not necessarily less generous gifts) under the unsigned will compared to the 2011 will. The Dunedin Revival Centre (the Centre), which was a beneficiary under the 2011 will but not the unsigned will, has also filed an affidavit supporting the validation of the draft will. Suzanne and Russell have been longstanding members of the Centre’s congregation. Suzanne was a close personal friend of the pastor, who presided at her funeral. He has sworn the affidavit attesting to the Centre’s position.

[7]    Because all affected parties support the validation of the unsigned will, I accept it is appropriate for the application to proceed without notice and leave is granted accordingly.

Differences between the draft will and the 2011 will

[8]    There are differences between the draft will and the 2011 will. The material changes are those to which I have previously referred. The unsigned will provides for different specific gifts to Suzanne’s children, and the previous gift of 10 per cent of Suzanne’s residuary estate to the Centre in the 2011 will has been removed.

[9]    Another clause of the 2011 will has been amended in the unsigned will (clause 5) to name various specific trusts, albeit family trusts settled by Russell and Suzanne for their children. However, those trusts were already included in the 2011

will, albeit in general terms, and the addition of the particular trust by name does not materially change the effect of that clause. There were also a number of other changes in the unsigned will to the 2011 will, but these relate to legal machinery to give effect to the will and are considered separate from Suzanne’s testamentary intentions. They reflect the changed legislative environment as a result of the introduction of the Trusts Act 2019. Similarly, there is a change in the burial request set out in the unsigned will which does not impact on the beneficiaries.

The Wills Act 2007

[10]   As submitted on behalf of Russell, s 14 of the Wills Act applies to the unsigned will because:

(a)It is a document which was created to represent Suzanne’s last will and testament, and therefore “appears to be a will”.

(b)It is unsigned and therefore does not comply with the formalities of a will under s 11 of the Wills Act.

(c)It came into existence in New Zealand and specifically was created by solicitors in Auckland.

[11]   It is well-established that s 14 of the Wills Act is remedial in nature and is intended to ensure that the clear intentions of a testator are not defeated by technicalities or mistakes in the execution of a will.1 In order to grant an application to validate an unsigned will, it is necessary for the Court to be satisfied the document expresses the makers testamentary intentions. Those intentions must be clear,2 immediate and unconditional.3

Decision

[12]   I am satisfied the unsigned will does express Suzanne’s final testamentary intentions. In particular, I am satisfied that it was Suzanne’s intention to update her

1      O’Carroll v McCutcheon [2017] NZHC 1797 at [34].

2      Robinson v Beaman [2023] NZCA 468 at [25].

3      Marshall v Singleton [2020] NZCA 450 at [65].

existing will and that she gave instructions to her solicitors to amend her will in accordance with her expressed intentions. Further, that she approved the contents of the unsigned will in July 2024, and that as from that date the unsigned will reflected her final testamentary intentions. I accept the submission there was nothing remarkable about the unsigned will or the circumstances in which it was made. Clearly, Suzanne wished to “update” the unsigned will as a result of her changed financial, family and life circumstances, and was deliberately putting her affairs in order.

[13]   It is apparent the different specific gifts to the children were considered and deliberate decisions were made that were explained by Suzanne to her husband. A supporting affidavit has been provided by her solicitor, who confirms Suzanne’s motivation for the making of these gifts of money from her bank accounts to her children. As submitted on behalf of Russell, insofar as the removal of the bequest to the Dunedin Rival Centre is concerned, it is not unusual or remarkable for a testator to change their mind about legacies to charities in an updated will made some 13 years later. In any event, that change has essentially been made with that charity’s blessing.

[14]   There was a six-month delay between Suzanne approving the unsigned will to her solicitors and her death without signing the document. However, I am satisfied that is explained by Suzanne’s circumstances. Her attention was diverted by the various things that she was trying to complete before her death. This included prioritising time for overseas trips with family members, finishing projects relating to her work as an interior designer, and putting on an exhibition of her art. Russell has deposed that Suzanne was suffering from pain and low energy as a result of the drugs she was prescribed to manage her condition, which limited the tasks she could comfortably do each day.

[15]   The date of her death in January was relatively sudden, in the sense that she had received advice in December that the cancer had not spread. Unfortunately, she declined very rapidly after that assessment and died in the following month. I accept there is no indication that Suzanne was prevaricating over her testamentary intentions or was having second thoughts regarding the changes she wished to make. In that regard, it has been noted that a new draft will had also been prepared for Russell in

2024, at the same time, but this also remained unsigned until March 2025, after his wife’s death.

Order

[16]   Being satisfied that the unsigned will reflects Suzanne’s final testamentary intentions and should be validated as her final will and testament, there will be an order declaring the unsigned will of Suzanne Louise Lund, prepared by her lawyers on or around 11 June 2024, to be her last will and testament.

Solicitors:
Hornabrook MacDonald Lawyers