Gibson
[2021] NZHC 3256
•17 December 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV 2020-485-547
[2021] NZHC 3256
IN THE MATTER OF Section 14 of the Wills Act 2007 AND
IN THE MATTER OF
an application by RODERICK DEAN GIBSON for an order that a document be declared a valid will of GOOSSEWINUS JOHANNES HUURDEMAN
Hearing: 26 October 2021 Counsel:
P Cranney and A J Connor for Applicant
N J Tutt and A K Back for Dianne Sullivan
Judgment:
17 December 2021
JUDGMENT OF MALLON J
Table of contents
Introduction [1]
The two documents [6]
The details [6]
The evidence as to their completion [11]
Enquiries [14]
Estate value [15]
Mr Huurdeman’s sisters [16]
Mr Huurdeman [18]
Background [18]
Mr Gibson’s friendship with Mr Huurdeman [20]
The relationship between Mr Huurdeman and Ms Sullivan [23]
Mr Huurdeman’s stroke [33]
Events following the death of Mr Huurdeman [51]
Evidence as to capacity [57]
Previous testamentary intentions [62]
RE GIBSON [2021] NZHC 3256 [17 December 2021]
Discussion [63]
The law [63]
Respective positions [69]
Testamentary capacity [72]
Undue influence [76]
Testamentary intentions [80]
Result [86]
Introduction
[1] Goossewinus (Win) Johannes Huurdeman died on 4 May 2020. He was survived by three sisters, who all reside in the Netherlands. He had no children of his own or living parents. Roderick Dean Gibson, a friend of Mr Huurdeman, seeks the validation of two documents dated 12 February 2020 as the last will of Mr Huurdeman.1 Mr Gibson is named as the executor in the documents and he and his two sons are the principal beneficiaries under those documents. One of Mr Huurdeman’s sisters is also a beneficiary.
[2] Melanie Mitchell, the daughter of Dianne Sullivan, opposes this application. She has applied for letters of administration to be granted to her for the limited use and benefit of Ms Sullivan.2 Ms Sullivan no longer has mental capacity. Ms Mitchell, who has her power of attorney, applies on her behalf. She says Ms Sullivan was the long-term de facto partner of Mr Huurdeman and that Mr Huurdeman did not have testamentary capacity and may have been subject to Mr Gibson’s influence when he completed the documents Mr Gibson seeks to validate as the will.
[3] If the will is not validated, Mr Huurdeman will have died intestate. In that event, if Ms Sullivan’s de facto partner status is established, she will inherit the estate. However, if the will is validated, Ms Sullivan may pursue a claim through the Property (Relationships) Act 1976 or the Family Protection Act 1955 (as may be appropriate). Counsel for the applicant has indicated that there would be discussions with Ms Mitchell about this.
1 The application sought an order that one of these documents be declared to be the will of the deceased. However, in submissions this was varied to two documents.
2 Relying on the Administration Act 1969, ss 5 and 9A and High Court Rules 2016, r 27.6.
[4] A temporary administrator was appointed with consent on 18 December 2020 to attend to the estate in the meantime.
[5] The evidence has been adduced by affidavit. No party sought to cross-examine the deponents, which limits the extent to which the parties can challenge what the deponents have said. I have treated evidence of things that Mr Huurdeman said to deponents as admissible because he is unavailable to give that evidence himself while taking into account that he cannot be asked to verify or clarify these statements.3
The two documents
The details
[6] There are two documents that Mr Gibson seeks be declared to be the will of Mr Huurdeman. Those documents are standard forms provided to Mr Huurdeman by the Kapiti Community Law Centre that he completed and sent back to the Centre.
[7] The first document is a standard form with gaps for testators to fill in details. It is titled “Will” and is headed “This is the last will of [name] [address], [occupation]”, under which Mr Huurdeman has written his name, address and occupation. It then contains the following:
(a)Clause 1: “I revoke all former wills and testamentary dispositions”.
(b)Clause 2: “I appoint [name], [address], and [occupation] to be executor of my will, trustee of my estate …”, above which is written Rod Gibson’s full name, address and occupation.
(c)Clause 3: “I direct that my body be …”, alongside which Mr Huurdeman has written “cremated”.
(d)Clause 4: “I give the following gifts to the following people: …” which Mr Huurdeman has crossed out.
3 Evidence Act 2006, ss 17 and 18.
(e)Clause 5: “The balance of my estate is to be given to: …” following which Mr Huurdeman has written “80% to Marcus Gibson” and “20% to Thomas Gibson”.4
(f)Clause 6: “In the event of all of the above gifts failing to vest I direct that my estate go to …”, following which Mr Huurdeman has written “Rod Gibson”.
[8] The document is signed and dated 12 February 2020. There are indicated spaces for the details of two witnesses, but these have not been completed.
[9] The second document is headed “Wills - Preliminary Questionnaire”. This document asks a series of questions and Mr Huurdeman has answered most of them. Specifically:
(a)“What is your full name, address and occupation?” is answered by Mr Huurdeman completing his full name;
(b)“Are you known by any other name?” is answered “Win”.
(c)“What is your present marital status?” is answered “single/partner”.
(d)“What is the name of your partner?” is answered “Dianne Sullivan”.
(e)“Do you have any children?” is answered “no”.
(f)“State the full names, addresses and occupations of person or persons you wish to name as executor(s) and trustee(s)” is completed with the full names and occupations of Mr Gibson and his wife, Jennifer Gibson, and their occupations. Mr Huurdeman has also written “10% of sales after debts/liabilities”.
4 Marcus and Thomas are the sons of Mr Gibson.
(g)“Do you wish to appointment [sic] testamentary guardians of your children under the age of 18 years?” is answered “No”.
(h)“Do you wish to be buried or cremated?” is answered “cremated”.
(i)“Do you have any special funeral directions? (Eg how will your ashes/body be disposed of?” is answered “Please send ashes to Bea Huurdeman [her address is the Netherlands is stated] to put ashes on Enghenbergh”.
(j)“Estate Assets and liabilities (Detail)” is completed with the addresses of three properties, two in Levin and one in Porirua and “Mortgage with Westpac” is written beside each.
(k)“Financial obligations and debts” is answered with “That is it”.
(l)“Do you wish to make any specific gifts (legacies) of money or chattels? (Detail) …” is answered with “Bea Huurdeman”, her Netherlands address and a sum of “NZ$50,000”.
(m)The next question concerned whether he wished to create a life interest in any home or property and if so to provide details. This is crossed out.
(n)“How is the left over estate (the residuary) to be shared?” is answered with the full names and addresses of Marcus Gibson and Thomas Gibson and percentages of 80 and 20 per cent respectively.
(o)“If any beneficiary dies before you, what would you like to happen to his or her share?” is answered “To his parents: ‘the executors’”.
(p)Other sections were crossed out, including a question about whether he has made any promise “to leave property by will”.
(q)“Family Protection Claims – If you are omitting any of your family from provision, please indicate the reasons, as family omitted can apply for the provision from the estate:” was answered with “?”.
(r)“Are there any other special provisions you wish to make?” was answered “No”.
(s)“Capacity Issues: Are there any issues as to capacity to make this will? (Detail and resolution”)” was left blank.
[10] This questionnaire did not have a space for a signature and is unsigned and undated.
The evidence as to their completion
[11] The evidence is that the above two documents were provided to Mr Huurdeman by Moira Gray of the Porirua Kapiti Community Law Centre at a meeting at the Centre’s Kapiti clinic on 5 February 2020. Mr Huurdeman attended that meeting with a Wesley Community Action Support Worker. At the same time, Ms Gray provided Mr Huurdeman with a questionnaire for an enduring power of attorney in relation to personal care and welfare. Ms Gray discussed these documents with Mr Huurdeman at the meeting.
[12] In addition to completing the “Will” and the “Wills - preliminary questionnaire” (as described above), he also completed the power of attorney questionnaire indicating that he wanted Mr Gibson to be appointed as his attorney, Mrs Gibson as the successor, and Bea Huurdeman to be updated by the attorney of the exercise of the attorney’s powers, and dated it 12 February 2020. On that day he also called the Law Centre to advise that he had completed these documents and had couriered them to the Law Centre’s office. The three documents are date stamped 14 February 2020, confirming that they were received by the Law Centre on that date.
[13] Upon reviewing them it became clear to Ms Gray that Mr Huurdeman had substantial assets and had not correctly declared his income. This indicated that he was ineligible to receive their free (government-funded) legal services. On
19 February 2020, Ms Gray telephoned Mr Huurdeman and asked him for evidence of his income over the last 12 months. Mr Huurdeman offered to dedicate $10,000 to the Centre in any completed Will. The Law Centre declined to accept this proposal on the basis that it was ethically inappropriate from its perspective. Mr Huurdeman said he would provide income information. By 6 March 2020 he had not done so. On that day Ms Gray telephoned him again and said that, because they had not received the information and he did not meet their criteria for free services, they could not assist him. She referred him to local lawyers.
Enquiries
[14] Mr Gibson’s evidence is that he has made proper inquiries and has found no earlier will. Ms Mitchell also made full enquiries and found none.
Estate value
[15] An interim report by the temporary administrator dated 27 May 2021 indicates that the value of the estate is around $650,000 (assets – liabilities), with some assets (such as two cars) not yet valued and accounted for.
Mr Huurdeman’s sisters
[16] Mr Huurdeman’s three sisters all support the application to validate the will. The evidence about that is to some extent qualified. A memorandum dated 20 November 2020 from their solicitor states:
I confirm Ms Huurdeman and her sisters support Mr Gibson’s application that Mr [Huurdeman’s] instructions to the Porirua Community Law Centre form the basis of a valid will, certainly in priority to any application made by Dianne Marie Sullivan.
I await however more comprehensive instructions.
[17] There is no evidence that more or different instructions were received. The solicitor’s memorandum, however, also records that Bea Huurdeman acknowledged receipt of the proceedings on her and her sister’s behalf. As no notice of opposition has since been filed, it can be taken that their position did not change after 20 November 2020.
Mr Huurdeman
Background
[18] Mr Huurdeman was a builder. He was of Dutch heritage but had been living in New Zealand for many years. Henk Lutter, a friend and fellow builder, who provided an affidavit in support of Mr Gibson’s application, knew him from when they were single men about 30 years ago. Mr Gibson and his family had known him for 28 years. They had met at their local church.
[19] Having been, it seems, in comparatively good health, Mr Huurdeman suffered a stroke on 27 December 2019, aged 63 years old. He was discharged from hospital on 28 January 2020. Sadly, he took his own life on 4 May 2020. At the time, he was living in Paraparaumu in a house owned by Ms Sullivan. He had been caring for Ms Sullivan who had dementia and whose health was in decline. Ms Sullivan is now aged around 77 years and is in private rest home.
Mr Gibson’s friendship with Mr Huurdeman
[20] Mr Gibson is an automotive technician. He and his wife socialised with Mr Huurdeman outside their church group, including at their respective houses and going away on many tramping and camping holidays. They assisted each other many times. For example, Mr Huurdeman sought his advice about vehicles and Mr Huurdeman provided his building skills.
[21] Over the years, Mr and Mrs Gibson met Mr Huurdeman’s family from the Netherlands. His mother, his sister Bea, and his niece Cindy stayed with the Gibsons at Christmas time in 1996. He witnessed the birth of the Gibsons’ boys, Thomas and Marcus. Mr Gibson, a qualified pilot, took Mr Huurdeman flying.
[22] Mr Huurdeman spoke at the funeral of Mr Gibson’s father. Mr Gibson considered Mr Huurdeman his closest friend, part of their family and like an uncle to their two children. His affidavit attached some photographs of the occasions referred to in his affidavit.
The relationship between Mr Huurdeman and Ms Sullivan
[23] The evidence of the relationship between Mr Huurdeman and Ms Sullivan comes mainly from affidavits from Ms Mitchell and Mr Gibson.
[24] Ms Mitchell, who now lives in Dubai, says she knew Mr Huurdeman for 36 years, regarded him as her stepfather and had a positive relationship with him. Ms Sullivan and Mr Huurdeman visited her and her husband in Perth in 2008, and she was in email and telephone contact with him until his death.
[25] Ms Mitchell understands Ms Sullivan and Mr Huurdeman to have met in 1986 when Ms Sullivan was still married. The relationship did not start until that marriage was over. In about 2001 Ms Sullivan told Ms Mitchell she had kicked out her husband and Mr Huurdeman had moved in. Ms Sullivan and Mr Huurdeman were religious and Mr Huurdeman wanted to adhere to not having sex outside marriage and so wanted to legitimise the marriage. He proposed to her but she declined. Ms Mitchell understood this to be because Ms Sullivan had been through three marriages and lost much of her property and acquired debts in the process. She did not want to risk losing her second freehold house to a fourth husband.
[26] Ms Mitchell understood that Mr Huurdeman did not want to appear to be living in sin, so publicly they kept their relationship private. She produced an exchange of emails between herself and Mr Huurdeman on 16 March 2020. The context of the emails was that Mr Huurdeman was looking after Ms Sullivan in her home and was looking to get payment for caring for Ms Sullivan. In the first email on that day, Mr Huurdeman said:
I just came back from social development, former work and income. I try to get an allowance for fulltime caregiving unto your mum. As I am not a family member, but a partner, close friend I can’t get regular family support, but as I am 15 months away from pension, and your mum has one I may get an allowance through pension.
The problem is, about 9 years ago, when mum start receiving her pension, she described me as merely a flatmate or boarder for all sorts of financial reasons. (Maybe worrying, that I could leave with half her assets). She had bad experiences, so I can’t blame her. Even though I had been with her for five years.
Now as that is recorded with social development, that is how they see me. But that undermines my eligibility to receive a partial pension.
I myself never saw our relation like that, and said to Caron, the facilitator, I am very close to Dianne and love her and always been with her, providing in outings, trips and overseas holidays. Always been close friends since 2005. (We first met long before that in Penn creek hut, Tararuas, when you were still a teenager, you’re there too, remember that? With Bryan. I came walking in the hut after dark.) But since 2005 I was much more to Dianne, a partner, very close, loving. Yes, in God’s sight even as married. I know. We never did separate. I even could not.
[27] Mr Huurdeman asked if Ms Mitchell could write a testimonial, honestly setting out how she saw their relationship to provide to the social development authority. Ms Mitchell’s reply said:
Of course I will write a testimonial for you. Mum was always so worried about losing her house (again), so I can see why she said that to WINZ, but it’s not an accurate description of your relationship at all. I hope we can explain the truth of the situation to them. In fact, I call you my Stepfather when I talk to other people about you and Mum. I will put that in my testimonial, and I hope they will see sense.
[28] Mr Huurdeman replied to thank Ms Mitchell. He commented that there might be financial consequences concerning the pension that Ms Sullivan had received because she had not told the full truth at the time. He went on to praise God and to talk lovingly of Ms Sullivan in her declining health.
[29] Ms Mitchell received a further email from Mr Huurdeman on 18 March 2020. In this email, Mr Huurdeman appears to have been reflecting on whether to pursue the discussions with the social development agency. His communication included the following:
God sees us as married. (When Dianne came down the steps on my section to the house in Miramar back in 2004, the Lord spoke to me quite majestically from Heaven: “Here is your wife”. Something I never forget. However we never came married before man, unfortunately. But God did not mind too much. He considered us married.
[30] Ms Mitchell considered that Ms Sullivan “was committed to him and expected to share the rest of their lives together”. Mr Huurdeman built a home office on the front of Ms Sullivan’s property and wanted to build them a house to share, but Ms Sullivan was adamant that her house stay in her name. Ms Mitchell’s
understanding was that they shared a bed. The social worker assigned to help care for Ms Sullivan told Ms Mitchell that they were sharing a bed and were very close.
[31] Mr Gibson did not have the same understanding of the relationship between Mr Huurdeman and Ms Sullivan. He understood it was a friendship, they shared a house but slept in separate rooms and did not want to present themselves as a couple. Mr Huurdeman had told him that they kept their finances and property separate. He remembered meeting Ms Sullivan when they came to the Gibson’s house sometime around 2006 and 2008. He understood their relationship was over when Mr Huurdeman was discharged from hospital after his stroke. He said:
It was very clear to me from my discussions with Win that he considered himself a boarder in Dianne’s home, he did not consider himself with Dianne let alone that he wanted to be with her “indefinitely”.
[32] Mr Gibson said that Mr Huurdeman had reached the point where he thought that Ms Sullivan would need permanent residential care and would die sooner rather than later. He wanted to live with the Gibsons, or live with his friend, Andrew Hughes, or move back to Holland.
Mr Huurdeman’s stroke
[33] Following Mr Huurdeman’s stroke, Mr Gibson was the first person he called. Mr Gibson shocked to hear of the stroke. Mr Gibson visited Mr Huurdeman in hospital daily for the four weeks he was in hospital, sometimes taking Ms Sullivan to visit him too. Mr and Mrs Gibson also assisted in Ms Sullivan’s care, as her own family was unavailable. They visited her, took food to her, exercised her dog, and did washing and shopping for her.
[34] Mr Huurdeman arranged assistance for Ms Sullivan from hospital, managed her affairs and paid her bills on his phone. He also asked the Gibsons to communicate with his sister Bea. During this time, Mr Gibson did not notice anything to suggest that Mr Huurdeman was not fully competent while attending to those matters. Mr Huurdeman told Mr Gibson that one of the doctors had asked him whether he had enduring power of attorney organised. Mr Gibson suggested contacting Mr O’Connor, a solicitor. Mr Huurdeman said he would think about it.
[35] Other good friends of Mr Huurdeman also visited him in hospital. Stanislaw Juchnowicz, who had known Mr Huurdeman for about 20 years mainly through their work contact, was a visitor. Matthew Caughley, a friend since the 1980s when they met through attending the same church, received a call from Mr Huurdeman to let him know of the stroke. Mr Caughley visited him twice during his hospital stay. Andrew Hughes, a friend for around 14 years, visited him several times. During Mr Huurdeman’s time in hospital, Mr Hughes had moved into Ms Sullivan’s house to help look after her and to look after Mr Huurdeman’s dog.
[36] Mr Huurdeman left hospital and returned to Ms Sullivan’s house on 28 January 2020. The hospital discharge form recorded that he had made good progress with therapy. He was informed that he was not medically cleared to drive due to ongoing deficits post-stroke. His doctor said he could refer him for a driving assessment if his deficits improved. The discharge forms recorded that he was living in Paraparaumu with “his partner, Diane”. Mr Juchnowicz saw him on the day he was discharged. Mr Lutter also saw him that day. He described Mr Huurdeman as “his normal self, chatting away” and “joking around”. Mr Huurdeman telephoned Mr Caughley advising of his discharge. He told Mr Caughley he had driven to the shops and around the neighbourhood despite the doctor’s orders.
[37] Mr Huurdeman had been in contact with Ms Mitchell while he was in hospital to let her know he was doing ok and how Ms Sullivan was doing. The day following his discharge, he sent an email to Ms Mitchell to let her know he was back home. His email went on to say:5
Your mum is very grateful that I am back. She survived to stay with lots of help. We both get wheels on meals. She is dependent on me that she can stay here and get nurse in the morning to help her for shower and getting dressed. I do whatever I can to get her to stay in the house. In the short term I plan to make arrangements like p….r of a…y. I don’t want her to be a victim of d…..rs and g..vm..nts. They can take advantage and make money out of it. I keep you posted. I don’t use key words as you notice, hopefully nothing gets picked up. Trust me, I am aware of schemes and you are in high regard. I do as it is to the will of your mum. If I need your help I let you know. Speak to soli….r shortly
5 The errors in the quotes are as per the emails.
[38] On 12 February 2020 Mr Huurdeman contacted Mr Gibson twice. Mr Huurdeman asked for his full name and the full names and dates of birth for his sons. Mr Huurdeman said he wanted to leave his estate to Mr Gibson’s sons. He also asked Mr Gibson whether he would agree to manage his estate. Mr Gibson agreed to do so. Mr Gibson heard nothing further about this and never discussed it with Mr Huurdeman again. He was not involved in taking Mr Huurdeman to the Law Centre.
[39] Mr Huurdeman sent further emails to Ms Mitchell about how he and Ms Sullivan were doing. One of them was on 24 February 2020. In this email, Mr Huurdeman provided an update on Ms Sullivan’s health. He said she had been anxious, lonely and depressed while Mr Huurdeman was in hospital but Mr Hughes, a mutual friend, had stayed with her until Mr Huurdeman was back. He also said:
… God made very clear to me on several heart touching ways, I was too farewell her, as things are coming to an end. I cried a lot. Still do. I love her so much, and I shared all the experiences we had done together. A lot. Very many much I love her and how a beautiful a person she is. …
… The Lord tells me I need to continue, while I really want to pass away when Dianne does. But He has got other plans for me, I am only 63.
… I tell Dianne to be with God and pray, I want to be with her in eternity.
[40] Also on 24 February 2020, Mr Huurdeman’s doctor, Dr Paul Davis, was contacted by the hospital occupational therapist, who was concerned that Mr Huurdeman was driving and queried whether Dr Davis had cleared him to do so. Dr Davis’ practice nurse arranged an appointment with Mr Huurdeman that same day. Dr Davis examined Mr Huurdeman and concluded that Mr Huurdeman “still had significant neurological signs” and advised him he would need a fuller driving assessment with a specialist OT assessment.
[41] On the weekend of 29 February 2020 Mr Huurdeman sent a text message that resulted in him being visited by a psychiatric health professional. Mr Huurdeman’s doctor was informed about this on 2 March 2020. His record of this was that Mr Huurdeman had “seemed confused”, was “anxious about his partner Diane – was going to die”. Mr Huurdeman had declined input from the mental health team and he was “a little erratic, but pleasant” and possibly “elevated”. It was proposed that
Mr Huurdeman meet with Dr Michael Doran, a “Psyc Team Consultant” but Mr Huurdeman was said to be not necessarily agreeable to this.
[42] A Capital and Coast clinician appears to have seen Mr Huurdeman at the Paraparaumu home. The clinician reported there being no evidence of neglect of either Mr Huurdeman or Ms Sullivan, “his wife”. The house was in a kept state. Mr Huurdeman had good eye contact and was not distracted or agitated. He reported he was doing well. He had worried the previous night about her dying this weekend and so had not slept well. He felt better today. There were no communication difficulties. Although he talked excessively, “he was interruptible, it was not pressured and it was coherent”.6
[43] The clinician also reported that Mr Huurdeman felt God spoke to him but this was not psychotic in nature and was in keeping with his religious beliefs. He had insight into his current mental state and realised his text message had caused people to worry. The clinician’s impression was:
?post stroke complications of fluctuating mood disorder or delirium Needs further ongoing assessment, although does not present with acute risk at present. May benefit from psychogeriatric input for himself in view of an assessment and a carers assessment from them.
[44] She considered Mr Huurdeman should be referred to his GP, noting that “in view of recent stroke, he is at risk of delirium, cognitive issues, mood disorders including depression and anxiety”.
[45] On 5 March 2020, Mr Huurdeman went to his doctor’s medical rooms. The record of this visit described him as “clearly getting frustrated with things” and being insistent he was short 200 tablets of a prescription, no matter how it was explained.
[46] During this period, when Mr Huurdeman was without a driving licence, Mr Hughes was driving Mr Huurdeman to appointments that Mr Huurdeman had arranged. Mr Hughes remembers that Mr Huurdeman was annoyed at having to spend money to get his driver’s licence back. He and Mr Huurdeman also started working together on and off at Mr Huurdeman’s Pukerua Bay property, building and staining
6 One of Mr Huurdeman’s friends said that Mr Huurdeman could be hard to get off the telephone.
the deck. Over the February and March 2020 period, Mr Caughley and Mr Huurdeman talked over the telephone six times. Mr Caughley recalls that Mr Huurdeman was concerned about Ms Sullivan’s health and his ability to look after her and was hopeful of getting back to work, starting with his Pukerua Bay house. Mr Juchnowicz recalls chatting with Mr Huurdeman two or three times over this period. They chatted in their normal way.
[47] Mr Huurdeman completed a medical fitness to drive assessment on 13 March 2020. This included a cognitive screening assessment. Mr Huurdeman scored “83/100” which indicated “an increased risk of the client failing a Medical Fitness to Drive on Road Assessment”. Identified difficulties were “problems with short-term memory, delayed recall and slowing of verbal fluency. Poor short-term memory can affect concentration and attention and can affect safety when driving”. There was also a 40 minute assessment with a driving instructor. The conclusion was that:
Mr Huurdeman drove the vehicle in a safe and appropriate manner. Performance during the road evaluation revealed no evidence that driving competence is outside the normal range for healthy drivers driving a class 1 vehicle.
[48] Mr Huurdeman was also communicating with Ms Mitchell by email during this period. In an email sent on 18 March 2020 (extracts of which are referred to earlier) he said:
… Poor Dianne. I do cry a lot for her. It is hard to accept. Initially hard for herself. Now she often does not realise it anymore, but enjoys the good time together. That is lovely for her.
I cry a lot. I struggle to stay and enter in the kingdom of God. I have never been able to that fully. God says “I must.” ……It is hard as I can’t find inspiration or enjoyment in it. To stop crying and find strength, I need to be whole hearted in God. Also beneficial for Dianne. She too then becomes closer to the Lord. I see the evidence of it. It is so real. … God is working great Salvation. All about seeing us as complete as possible back in Heaven, when we all depart from the earth, in eternal glory. We want to recognize each other. …
[49] On 19 March 2020 a doctor’s medical certificate found him medically fit to drive a class 1 vehicle. A licence for any other class of vehicle would have to be determined by the New Zealand Transport Authority.
[50] On 23 March 2020 the country went into lockdown. Mr Huurdeman died a few days after the country came out of lockdown.
Events following the death of Mr Huurdeman
[51] When Mr Huurdeman died, the police came to the Gibsons’ door because they had seen their names on his fridge and had been unable to contact any relatives. The police arranged for Ms Sullivan to be put in care and she has been there ever since. Mr Gibson gave the police details for Mr Huurdeman’s sister Bea in Holland, as well as the details of Ms Sullivan’s daughters, Ms Mitchell in the Middle East and Donna in Marton.
[52] Bea provided the authorisations to police to enable the Gibsons to act on behalf of Mr Huurdeman and his family. With her approval, the Gibsons made funeral arrangements and they redirected mail from Ms Sullivan’s empty address to theirs. Ms Mitchell applied for letters of administration. Her lawyer had been receiving Mr Huurdeman’s bills but then they were redirected following the arrangements the Gibsons had made.
[53] The Gibsons sent a letter to Ms Mitchell but received no response. They then communicated with her nephew Sam, who lives locally. On 14 May 2020, Sam told Mr Gibson that Ms Sullivan’s attorney had engaged a lawyer and had asked about Mr Huurdeman’s life insurance. Sam told them not to go to Ms Sullivan’s now empty house. Arrangements were made with him to obtain clothing and photographs for the funeral and to ensure the timing of the funeral suited his work schedule.
[54] Mr Huurdeman was cremated. A memorial service was held on 22 May 2020. Ms Sullivan attended, as did Sam. Sam spoke at the funeral. Ms Mitchell says Sam was upset about having to assert his rights to speak, but the Gibsons say they agreed to it immediately.
[55] Ms Mitchell found it was distressing that Mr Gibson had organised the funeral without input from Ms Sullivan’s family and failed to include Ms Sullivan’s name in the obituary. The Gibsons say the choice not to include Ms Sullivan in the obituary was not intended as a slight. There was hearsay evidence concerning comments
Mrs Gibson was alleged to have made at the funeral about Ms Sullivan (and they do not assist). There were discussions with Mr Huurdeman’s family about returning his ashes to Holland.
[56] A search for a will began. The police made enquiries but were unsuccessful. Sam found Ms Gray’s business card in Mr Huurdeman’s possessions and, once proof of death was provided, Ms Gray provided the details that are referred to above. Mr Gibson says this was the first he knew of Mr Huurdeman’s wishes being recorded and that he was to manage the estate and his sons were to be the beneficiaries.
Evidence as to capacity
[57]About Mr Huurdeman’s death, Mr Hughes said:
14.When Win took his own life this was totally unexpected. It was out of character as when he came out of hospital, he was more frustrated than anything else and he was looking forward to getting his life back on track. Win was a determined man and nothing stood out to me that suggested any change.
15.While I am still baffled, my belief is that Win being a sociable person found the lockdown very hard and it is the lockdown period that is behind what happened. Prior to that Win was of a sound mind- that’s why I was so shocked when he died. Nothing weird stood out to me at the time.
[58] Mr Lutter talked with Mr Huurdeman for the last time two days before Mr Huurdeman died. He said:
12.We talked like we always did. Win was talking about his house in Pukerua Bay, about getting his body better and his concerns about this. He was making plans about what he wanted to do. I talked about my recovery from my operation also. Win seemed like his normal self.
13.I was therefore very shocked when [Win] killed himself. He still had all these ideas about the things he wanted to do. He was the same Win he had always been, he liked to have a plan and plan ahead for something. I noticed nothing in his mood or approach that was any different or gave me any indication he would take his own life.
14.I am aware that Dianne is challenging Win’s last known wishes about what he wanted to happen to his property. Win did know he should have a will. In his mind Win believed Dianne had her house which he told me was mortgage free and that it was her property and that he had his houses which were his property to do with what he wanted.
[59] Mr Juchnowicz saw Mr Huurdeman lining up at the local fish ‘n’ chip shop on 30 April 2020 or 1 May 2020, when lockdown had ended. Mr Huurdeman “seemed so happy and was in good spirits and we exchanged conversation from the social distance required”. Mr Huurdeman telephoned him on the weekend of 2 May 2020. He thanked Mr Juchnowicz for all the work he had given him over the years and talked about some of the jobs he had done, some of the people he had met and the friends he had made along the way. He said he had really enjoyed it and thanked Mr Juchnowicz for always paying him on time. Mr Juchnowicz talked to him about some easy jobs he could do when he was physically ready to get back to work. Mr Huurdeman bought two ladders first thing on Monday 4 May 2020, which Mr Juchnowicz thought was because of the work they had discussed. In his opinion, Mr Huurdeman’s “mind was not affected by his stroke, only his body which he was working very hard to get back to normal”.
[60] Mr Caughley said the last conversation he had with Mr Huurdeman was on 27 March 2020. He seemed to be “much better, calmer and more at peace”. He talked about getting some outside help for Ms Sullivan. Mr Caughley felt that Mr Huurdeman had struggled with depression over the years. He was, however, surprised he took his own life. He said:
I don’t believe the stroke affected him mentally or changed the way Win had always been. During 2020 I didn’t see a change in [his] personality or character but in his and Dianne’s circumstances which, it seems to me, brought with it for Win a future that left him at the mercy of his inner struggles.
[61] Dr Davis had been Mr Huurdeman’s GP for about ten years. He confirmed that he had met with Mr Huurdeman on 24 February 2020 to assess his ability to drive following his stroke and subsequent discharge from hospital. At that time, he “did not observe anything untoward in his behaviour or understanding during our conversation that indicated he had lost his usual mental capacity and understanding”. He did note some physical limitations from the stroke. He referred Mr Huurdeman to occupational therapy to have an occupational assessment to see whether those physical limitations could affect his ability to drive safely. The doctor’s affidavit said:
I note that while the occupational assessment of 13 March 2020 records a reduced cognitive assessment of 83/130 this is not significant and it did not
stop Mr Huurdeman from obtaining his driver licence and following the assessment he was found medically fit to drive.
From my observations of Mr Huurdeman when I met with him on 24 February 2020 and again on 19 March 2020, in my opinion he had the mental capacity to make a decision to make his will document about what he wanted to happen to his property and that he was capable of understanding and appreciate the consequences of what would happen to his property on death.
Previous testamentary intentions
[62] In around 2017 and 2018, Mr Huurdeman told Mr Caughley that he was renewing his will and wanted to leave his Island Bay house to Mr Caughley. Mr Huurdeman’s reasons were that he did not have his own family and Mr Caughley, and Mr Caughley’s parents in particular, had been good to him and he wanted to acknowledge that. Mr Caughley’s parents were older and not in need of anything and that is why he wanted to leave his house to Mr Caughley. Mr Huurdeman’s family in the Netherlands were also not in need either. Mr Caughley did not hear about this again and did not know whether Mr Huurdeman took any steps to amend his will. However, in their conversation, Mr Huurdeman was firm in his reasoning, as he was firm more generally in his beliefs in Mr Caughley’s experience.
Discussion
The law
[63] Section 11 of the Wills Act 2007 sets out the requirements for a valid will. It must be in writing, it must be signed, and it must be witnessed by at least two witnesses in accordance with the specific requirements set out in s 11(4). Because the documents are not signed by witnesses, they do not comply with s 11(4), meaning they are prima facie invalid.
[64] Section 14 of the Act confers on the High Court the power to declare that a document that does not comply with the s 11 requirements is a valid will. It may do so if it is a document that appears to be a will, it does not comply with s 11 and the Court is satisfied it expresses the testator’s testamentary intentions. Section 14 is remedial in purpose. While care is necessary, s 14 invites a robust approach so that testamentary intentions are not thwarted by technicalities. The courts take the view
that it is better that testamentary intentions are given effect than the disposition of property that would otherwise occur or in the situation of intestacy.7
[65] It is not challenged that the documents here appear to be a will. One of the documents is a typed “do it yourself” form purporting to contain Mr Huurdeman’s testamentary intentions. It is headed “Will” and commences with the words “This is the last will of …”. It purports to dispose of property and to appoint Mr Gibson as executor. The second document provides further details of Mr Huurdeman’s apparent intentions. The two documents may have been preliminary documents to allow a solicitor to give advice or formulate a formal will, but a document appearing to be a will does not have to be in its final form.8
[66] The issue raised is whether they express Mr Huurdeman’s testamentary intentions. Ms Mitchell says they do not because Mr Huurdeman did not have testamentary capacity. As the documents were not formally executed as a valid will, no presumption of testamentary capacity applies. As Mr Gibson is the party seeking to have the documents validated as the will, the onus is on Mr Gibson to establish on the balance of probabilities that Mr Huurdeman had capacity at the relevant time.9
[67] The parties agree that the principles for assessing testamentary capacity are as set out in Woodward v Smith as follows:10
(1)Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.
(2)It is essential to the exercise of such a power that a testator:
(i)understands the nature of the act and its effects; and also the extent of the property of which he is disposing;
7 Caird v Caird [2018] NZHC1605 at [39]; Re Estate of Wong [2014] NZHC at [24]; and Re Estate of Campbell [2014] NZHC 1632 at [11].
8 See Re Estate of Feron [2012] NZHC 44, where the solicitor’s notes of the testator’s will instructions together with a follow up email provided a sufficient skeleton for a will. This decision was relied on in Winterburn v Wilson [2016] NZHC 1422, where the Court held that the deceased’s handwritten instructions, relating to specific gifts, together with the solicitor’s file note and the will instruction form, which stated who the residue should be left to, constituted a document that appeared to be a will.
9 Marshall v Singleton [2020] NZCA 450 at [25] and [49].
10 Woodward v Smith [2009] NZCA 215. See also Marshall v Singleton, above, at [24].
(ii)is able to comprehend and appreciate the claims to which he ought to give effect;
(iii)be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
(3)Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But
(i)though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.
(ii)It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.
(4)It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
(5)In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
(6)A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
(7)Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all;
(8)Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.
(9)But if that standard is not met, he will lack capacity.
[68] Ms Mitchell also raises the possibility of undue influence. The principles of undue influence in the testamentary context were set out by Fisher J in Re Dudley (deceased):11
(a) The key question is whether, because of extraneous pressure from others, the willmaker has signed a will contrary to his or her own wishes.
(b) Persuasion which has left the final choice to the will-maker is not undue influence. Where there is evidence of strong influence or pressure, the Court will approach the question of the will-maker’s own wishes with suspicion. However, if satisfied that the will-maker’s wishes have not been overborne, and that in the end he or she wanted the will in that form, the Court must uphold the will. In those circumstances the ultimate source of the will is not the external pressures but the exercise of the will-maker's own free judgment.
(c) The onus of proof lies upon the proponent of undue influence. However direct evidence of undue influence is not to be expected. These cases usually turn upon the strength of the circumstantial evidence. The question is whether from all the surrounding circumstances, with particular emphasis upon the result of the will and the circumstances in which it was actually executed, undue influence is to be inferred.
(d) For this purpose all the circumstances bearing directly or indirectly upon the free will of the will-maker at the time of execution are relevant. These include illness, pain and suffering, physical weakness and mental deterioration falling short of testamentary incapacity. They also include dependency upon others in legal, business, social, medical and/or domestic matters. One should view with special care any powerful need, obligation, or vulnerability on the part of Mr Huurdeman which others might be in a position to exploit.
(e) However, it is not enough to show that others had the means and opportunity to unduly influence Mr Huurdeman and that there has been a recent testamentary disposition in their favour. The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.
Respective positions
[69] Mr Gibson submits that intestacy would completely override Mr Huurdeman’s expressed intentions. He submits the documents together show Mr Huurdeman’s intentions - $50,000 to Bea and an 80:20 split of the remainder to Mr Gibson’s sons. He says the evidence from Mr Huurdeman’s GP and friends was that Mr Huurdeman had testamentary capacity at the time and expressed his wishes in the documents. He says there is no evidence that he lacked testamentary capacity or of undue influence.
11 Re Dudley (deceased) HC Auckland P 1042/92, 14 May 1993 at 11. See also Mahon v Mahon
[2016] NZCA 642 at [14].
He notes that validating the will does not prevent Ms Sullivan (or Ms Mitchell on her behalf) pursuing any claim against Mr Huurdeman’s estate.
[70] Ms Mitchell says she does not believe Mr Huurdeman had testamentary capacity or that the two documents reflect his true testamentary intentions. She says she cannot accept Mr Huurdeman would have intentionally left Ms Sullivan out of the will, given their very loving relationship. She suggests he may have erroneously thought she had no need of funds or the proposed beneficiaries would take care of her. She suggests Mr Huurdeman was pressured by Mr Gibson’s visits or was grateful to him in his vulnerable mental state.
[71] Ms Mitchell is concerned that Mr Huurdeman did not receive legal advice on the questionnaires. She refers to the question mark under family protection claim. She says that legal advice would have advised him regarding his de facto relationship with Ms Sullivan. She says the questionnaire is only intended to provide further information to the Law Centre. She says Mr Huurdeman had plenty of time after Ms Gray referred him to local lawyers on 6 March 2020 to do so before he died on 4 May 2020. Although there were COVID restrictions, advice could have been given over the phone and anyone can witness a will.
Testamentary capacity
[72]Ms Mitchell relies on the following evidence:
(a)the 29 January 2020 email has the odd “…” because Mr Huurdeman wanted to avoid using “key words”;
(b)Mr Huurdeman misspelt his name in the questionnaire and gave the wrong bank as holding the mortgage on one of his properties;
(c)Mr Huurdeman offering $10,000 to the Law Centre was inconsistent with his character as someone who lived simply and appreciated the value of money and contrasts with his annoyance at having to pay to re-sit his driver’s licence;
(d)he was not fit to drive on 24 February 2020;
(e)on 29 February 2020 he was seen by the mental health crisis team following a text message, and was described as confused, anxious, a little erratic, pleasant and possibly elevated;
(f)on 3 March 2020 a medical assessment provided an impression of possible post-stroke complications of fluctuating mood disorder or delirium and a need for ongoing assessment;
(g)on 5 March 2020 he was demanding tablets, very frustrated and not accepting the receptionists explanation;
(h)Mr Huurdeman’s screening on 13 March 2020 indicated an increased risk of failing a medical fitness to drive assessment, short-term memory problems, delayed recall and slowing of verbal fluency;
(i)Mr Caughley’s view that Mr Huurdeman had struggled with mental health for decades;
(j)Mr Juchnowicz’s evidence that Mr Huurdeman purchased two ladders the day that he died;
(k)Mr Huurdeman saying in his emails to Ms Mitchell that his brain still needed to heal and referring to his struggles and wanting to die;
(l)Mr Huurdeman put a “?” beside the question in the questionnaire about family protection claims and described himself as “single/partner”; and
(m)the fact that he did not gift anything to Ms Sullivan in his will despite their longstanding, loving relationship.
[73] These are all matters that might raise a suspicion about whether Mr Huurdeman had testamentary capacity on 12 February 2020 (when the documents were completed). However, they do not do more than that. I say this because:
(a)Contrary to the submission made, Mr Huurdeman appears to have spelt his name correctly in the will form and the questionnaire. His mistake about one of his mortgages seems minor and of no consequence. The description “single/partner” arguably best reflected his status. He was single because he was not married but he did have a partner. The “?” is consistent simply with Mr Huurdeman not knowing whether Ms Sullivan would have a claim against his estate. It is not evidence that he wanted to include Ms Sullivan in his will.
(b)It does seem somewhat out of character to offer the Law Centre $10,000 to help him with his will. But there may have been a rational reason for the offer. It came after he was told the Law Centre, which provides free legal advice, could not assist him. At the time, he was thinking about who to leave his assets to. He may simply have wanted to make a charitable donation to a place that did good in the community. On its own, this offer is not evidence that Mr Huurdeman was having cognitive difficulties.
(c)Feelings of frustration and demanding a prescription, mood fluctuations, struggles with mental health, and feeling sad and anxious about one’s partner whose health is in serious decline, do not necessarily equate to a lack of capacity. No expert evidence has been provided offering an opinion that these symptoms could have affected his capacity.
(d)Not gifting anything to his long-term partner is explicable by the evidence from Ms Mitchell that Ms Sullivan always wanted their assets kept separate.
[74] Overall, I consider that the evidence relied on by Ms Mitchell to support her claim that Mr Huurdeman lacked mental capacity following his stroke is somewhat weak. It contrasts with the evidence relied on by the applicant as supporting that Mr Huurdeman had mental capacity. Specifically:
(a)the evidence from Mr Huurdeman’s doctor of 10 years that from what he observed when he assessed Mr Huurdeman following the stroke, Mr Huurdeman had the mental capacity to make will decisions and appreciate the consequences;
(b)the medical report relating to Mr Huurdeman’s hospital stay recorded that he was very motivated, had little fatigue and carried out self- directed exercises and made quick progress;
(c)Mr Gibson’s evidence that Mr Huurdeman arranged the paying of bills and the care of Ms Sullivan all from his hospital bed and he appeared to Mr Gibson to be fully competent while doing all this;
(d)Mr Juchnowicz’s evidence that Mr Huurdeman appeared entirely normal in their interactions and he saw nothing to indicate that Mr Huurdeman’s mind was affected by the stroke;
(e)Mr Hughes’ evidence that they were working together on Mr Huurdeman’s Pukerua Bay property and he appeared to be in good spirits;
(f)Mr Caughley’s evidence that Mr Huurdeman was looking forward to getting back to work;
(g)Mr Huurdeman was assessed as able to drive on 13 March 2020 and 19 March 2020; and
(h)Mr Huurdeman appeared to have been able to discuss wills and power of attorney with Ms Gray on 5 February 2020. He was able to fill in the will and questionnaire forms on 12 February in a coherent way. He was able to contact Mr Gibson twice on 12 February 2020 to ask for his full name and full names and dates of birth for his sons, who he said he wanted to leave his estate to, and to ask whether Mr Gibson could manage his estate.
[75] I consider the evidence shows that on the balance of probabilities Mr Huurdeman did have testamentary capacity at the relevant time. The best evidence of that is the evidence of his doctor of ten years. He was able to give his opinion of testamentary capacity having assessed him close in time to when the two documents were completed. That evidence goes directly to the principle at (3)(i) and (ii) of Woodward v Smith. His evidence is supported by the evidence that Mr Huurdeman was able to arrange his own appointments and coherently and accurately fill in the documents. His friends, with whom he was in reasonably frequent contact during his hospital stay and the weeks following it, noticed nothing amiss in their interactions with him. There was a rational explanation for Mr Huurdeman not leaving anything to Ms Sullivan (they kept their assets separate). It is supported by Mr Huurdeman’s earlier discussion with Mr Caughley about leaving his house to him.
Undue influence
[76] Ms Mitchell’s suggestions of possible undue influence on the part of the Gibsons are premised on her view that, given the loving relationship and de facto partnership Mr Huurdeman and her mother shared, it is inconceivable that he would not provide for her in his will. The onus is on her to show undue influence.
[77] There is little evidence to suggest any undue influence here other than that the will provides for the Gibsons and not for Ms Sullivan and Ms Mitchell’s characterisation of the Gibsons’ behaviour as excluding Ms Sullivan. It is on the face of it somewhat odd that the Gibsons denied that Ms Sullivan and Mr Huurdeman were long-term partners. The evidence before this Court strongly supports that they were. Like Mr Huurdeman, the Gibsons had religious beliefs. It is possible that Ms Sullivan and Mr Huurdeman did not present themselves as a couple in front of the Gibsons because of how that might be viewed by them. I do not know and there may be other explanations. It is also somewhat odd that the Gibsons did not include Ms Sullivan in the death notice and that Sam felt aggrieved about how he was treated about speaking at the funeral. These things may simply be examples of people acting oddly (as can be the case) in times of grief. The motivations of the Gibsons were not explored in cross-examination so it is all left a bit unclear.
[78] It is true that Mr Huurdeman was at times deeply sad and therefore potentially vulnerable to acts of kindness from the Gibsons. But his other friends, including Mr Hughes who moved in with Ms Sullivan to look after her while Mr Huurdeman was in hospital and who drove Mr Huurdeman to his appointments when he did not have a licence, were also very kind. They kept in touch with him and helped him to get back into work. Mr Huurdeman did not make gifts to all of his friends. This suggests his decision to benefit Mr Gibson’s sons was a deliberate decision not improperly influenced by Mr Gibson when Mr Huurdeman was unwell.
[79] Mr Gibson’s evidence is that he had no idea of Mr Huurdeman’s exact intentions before Mr Huurdeman called him and asked him about it. He was not challenged on this through cross-examination. Ms Mitchell refers to a discussion between Mr Gibson and Mr Huurdeman about going to see Mr O’Connor to make a will, but Mr Huurdeman did not do this and went to the Community Law Centre instead. Mr Gibson’s position that the $50,000 should go to Bea, despite the inconsistency between the will document and questionnaire, indicates a loyalty to Mr Huurdeman’s family rather than being motivated entirely by self-interest or for his sons. There is no evidence to show anything other than that Mr Huurdeman made up his own mind about what to do about his will.
Testamentary intentions
[80] In the absence of a lack of testamentary capacity or undue influence, I consider Mr Huurdeman’s testamentary intentions to be set out in the two documents. It is not challenged that Mr Huurdeman wrote those documents and signed them.
[81] The contents of the two documents are consistent with the relationships he had at the time. His intention not to gift anything to Ms Sullivan is consistent with the nature of their relationship – the evidence showed that they considered their property separate and that seems to have been the reason Ms Sullivan refused to marry Mr Huurdeman. Mr Huurdeman may have considered Ms Sullivan’s property would be entirely sufficient for her care for the rest of her life (especially bearing in mind that he thought she would die soon) and that it would be pointless to leave her anything. It was consistent with his earlier discussion with Mr Caughley that he did
not want to leave anything to anyone who did not need it and that he would prefer to recognise a longstanding friendship in his will. The Gibsons fell into that category.
[82] Ms Mitchell seeks to diminish the closeness of the Gibsons’ relationship with Mr Huurdeman in his later years. She notes that the photographs Mr Gibson produced were from many years ago and the Gibsons seemed to think that Mr Huurdeman and Ms Sullivan were not partners. However, the photographs and Mr Gibson’s evidence more generally showed a friendship that dated back many years. It is not uncommon for longstanding friends to see less of each other as things in their life change (for example, Ms Sullivan and Mr Huurdeman living together and Ms Sullivan becoming unwell) without that diminishing the bond that old friends have for one another. The Gibsons were certainly there to help Mr Huurdeman and Ms Sullivan when Mr Huurdeman had his stroke.
[83] It is the case that the gift of $50,000 to Bea referred to in the questionnaire is not referred to in the will form. The explanation may simply reflect the order in which the two documents were completed and that the will form was less detailed than the questionnaire. The questionnaire asked about “any specific gifts (legacies) of money or chattels” and Mr Huurdeman’s answer indicates a deliberate decision that his sister have a specific gift. Mr Huurdeman appeared to have a good relationship with Bea, as indicated by Mr Gibson’s evidence that Mr Huurdeman asked him to communicate with her while he was in hospital. The gift to Bea appears consistent with their relationship. Mr Huurdeman sent the two documents back to the Law Centre together so they should be read together.
[84] It is also the case that Mr Gibson is named as the sole executor in the will form whereas the questionnaire names Mrs Gibson as well. Again, that may simply reflect Mr Huurdeman deciding he should have two executors instead of one when he came to do the questionnaire. The two documents should be read together, which would mean they are both executors.
[85] Lastly, there is a time gap between 12 February 2020 and 4 May 2020 when Mr Huurdeman died. He did not arrange to have his will finalised over that period. I consider this does not indicate a change in intention or uncertainty about what he
wished to do with his estate. He needed to arrange an appointment with a lawyer and there are many reasons why he might not have gotten around to it. They include having to pay money to a lawyer for his or her services, being busy with looking after Ms Sullivan and very sad about her health, and the lockdown. It is not at all strange that he had not gotten around to seeing a lawyer in these circumstances, even if he had known that lawyers were still assisting with wills over the lockdown period.
Result
[86] I allow Mr Gibson’s application. I make an order that the two documents, copies of which are at Exhibits “A” and “C” of the affidavit of Roderick Dean Gibson dated 12 February 2020, are declared valid as the last will of the deceased.
[87] I reserve leave to the parties if there are incidental orders, for example as to costs, to file memoranda by 29 January 2021 for my consideration.
Mallon J
3
6
0