DUDDING v THOMAS [2023] NZHC 634

DUDDING v THOMAS [2023] NZHC 634

On the balance of probabilities the Court accepted the credible, consistent evidence of the solicitor (Mansfield) that the 10 August 2020 draft will reflected Jennifer's testamentary intentions and there was no reliable evidence of subsequent change of mind or incapacity; accordingly the draft will was validated...

Source-derived case information.

Citation
[2023] NZHC 634
Parties
Applicant: Peter Glenn Dudding; First Respondent (as Executor of the Estate of Peter Clarence Dudding): Melanie Thomas; Second Respondent (in Personal Capacity): Melanie Thomas; Third Respondent: Linda Santo; Fourth Respondent: Peter Shane Dudding; Fifth Respondent: Rochelle Dudding; Sixth Respondent: Peter Ford Dudding; Seventh Respondent: Kaylene Cortina Dudding; Eighth Respondent: Peter Thomas; Ninth Respondent: Ryan Anthony James Scott; Tenth Respondent: Holly Elizabeth Button; Eleventh Respondent: Bradd Earea; Twelfth Respondent: Jayden Earea; Thirteenth Respondent: Lloyd Johnson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 March 2023
Procedural Posture
Will and Estate Dispute (validation and Declaratory/rectification of Wills) / Judgment (hearing 14–15 March 2023; Judgment 27 March 2023)
Outcome
Applicant's validation application granted; the unsigned 10 August 2020 draft will of Jennifer Dawn Dudding is validated as her last will under Wills Act s14. Applicant's primary declaratory relief seeking that clauses 3–7 of Peter's will remain effective notwithstanding Jennifer's prior death was dismissed; instead...
Legal Topics
Validation of Unsigned Will (wills Act S14), Testamentary Capacity, Interpretation of Wills, Rectification/clerical Error (wills Act S31), Court Declaration (declaratory Judgments Act S3)
Wills Estates Probate Succession Declaratory Relief Validation of Unsigned Will (wills Act S14) Testamentary Capacity Interpretation of Wills +2 more

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Parties

Peter Glenn Dudding

Applicant

Melanie Thomas

First Respondent (as Executor of the Estate of Peter Clarence Dudding)

Melanie Thomas

Second Respondent (in Personal Capacity)

Linda Santo

Third Respondent

Peter Shane Dudding

Fourth Respondent

Rochelle Dudding

Fifth Respondent

Peter Ford Dudding

Sixth Respondent

Kaylene Cortina Dudding

Seventh Respondent

Peter Thomas

Eighth Respondent

Ryan Anthony James Scott

Ninth Respondent

Holly Elizabeth Button

Tenth Respondent

Bradd Earea

Eleventh Respondent

Jayden Earea

Twelfth Respondent

Lloyd Johnson

Thirteenth Respondent

Procedural Posture

Will and Estate Dispute (validation and Declaratory/rectification of Wills) / Judgment (hearing 14–15 March 2023; Judgment 27 March 2023)

Legal Issues

  1. 1 Whether the unsigned 10 August 2020 draft will of Jennifer Dawn Dudding should be validated under s14 of the Wills Act 2007
  2. 2 Whether there was lack of testamentary capacity or subsequent change of mind preventing validation
  3. 3 Proper interpretation of clause 9(b) of Peter Clarence Dudding's will dated 21 November 2019

Ratio Decidendi

On the balance of probabilities the Court accepted the credible, consistent evidence of the solicitor (Mansfield) that the 10 August 2020 draft will reflected Jennifer's testamentary intentions and there was no reliable evidence of subsequent change of mind or incapacity; accordingly the draft will was validated under s14. As to Peter's will, extrinsic evidence established a clerical/drafting error in clause 9(b) and the testator's intention was that if his wife predeceased him his entire estate should vest in his children (with Brent's issue taking his share); the Court therefore interpreted and corrected clause 9(b) (under ss31/32 and s3 DJA) to read 'all of my estate both real and...

Court Disposition

Applicant's validation application granted; the unsigned 10 August 2020 draft will of Jennifer Dawn Dudding is validated as her last will under Wills Act s14. Applicant's primary declaratory relief seeking that clauses 3–7 of Peter's will remain effective notwithstanding Jennifer's prior death was dismissed; instead...

Orders

  • Order under Wills Act 2007 s14 declaring the unsigned 10 August 2020 draft will of Jennifer Dawn Dudding validated as her last will
  • Declaration under Declaratory Judgments Act 1908 and orders under Wills Act 2007 ss31 and 32 that clause 9(b) of the will of Peter Clarence Dudding dated 21 November 2019 is to be read and the will corrected so that the words 'all my said estate' are deleted and replaced with 'all of my estate both real and personal...