Gibson

[2021] NZHC 3256

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…