Ball v Saint
[2023] NZHC 814
•18 April 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1876
[2023] NZHC 814
IN THE MATTER OF an application for probate in solemn form under Part 18 of the High Court Rules 2016 IN THE MATTER OF
of JOHN ELLIOTT LAWFORD, of
Auckland, Retired, Deceased
BETWEEN
DENISE JOY BALL, TIMOTHY JOHN LEWIS and ROBERT McDOUGALL FERRIER
Plaintiffs
AND
BELINDA BEVERLEY GWENDOLEN SAINT
First Defendant
Continued over page
Hearing: 13 February 2023 Appearances:
S A Grant, Y Mortimer-Wang and J Kim for the plaintiffs V Bruton KC and A McDonald for the first defendant
D Chambers KC, I Hikaka and J L Beverwijk for the third defendant
S R Morris for Interested PartyJudgment:
18 April 2023
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 18 April 2023 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules
……………………………………………………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
AJO Legal, Auckland; Hesketh Henry, Auckland; Glaister Ennor, Auckland; Lee Salmon Long, Auckland; Gregory Simon Law, Auckland; Morris, Auckland; S Grant, Auckland; V Bruton KC, Auckland; A McDonald, Auckland; D Chambers KC, Auckland
BALL & ORS v SAINT & ORS [2023] NZHC 814 [18 April 2023]
JACK LEE PORUS and DAVID LUNNY
Second Defendants
MYLES CURLING LAWFORD
Third Defendant
[1] When John Elliot Lawford died aged 86 on 12 June 2020 his most recently executed will was dated 18 April 2017 (2017 Will). Mr Lawford’s penultimate will was dated 6 November 2013 (2013 Will).
[2] The plaintiffs are the executors of the 2017 Will. They apply for a grant of probate in solemn form of the 2017 Will. The first defendant opposed and counterclaimed for an order that probate of the 2013 Will be granted to the second defendants who are the executors of that will. The second defendants abide. The third defendant is the residuary beneficiary under both wills. He supports the plaintiffs’ application.
[3] The trial took place before me between 30 May 2022 and 8 June 2022 but was adjourned part heard. Shortly before it was due to recommence for a further 10 days on 13 February 2023 the parties reached a compromise at a mediation with the Hon Rhys Harrison KC. The parties sought various orders by consent, including that the plaintiffs be granted probate of the 2017 Will.
[4] Notwithstanding the agreement of the parties, an issue arises as to whether the Court can and should grant probate in solemn form; or whether it should exercise its discretion to grant probate in common form. The parties (and counsel for an interested party, Mr Maurangi) filed memoranda and I convened a short hearing to deal with this issue.
[5] For the reasons set out below I am satisfied it is appropriate to grant probate of the 2017 Will in solemn form. The first defendant no longer opposes probate being granted in solemn form (although as I will explain that is not determinative). I am also satisfied it is appropriate to make the further orders sought by consent, albeit without reference to Mr Maurangi.
Background
[6] The first defendant and Mr Lawford were married in 2010. The first defendant and her adult son were both beneficiaries of the 2013 Will; neither were beneficiaries of the 2017 Will.
[7] There was extensive affidavit evidence concerning the nature of the relationship between Mr Lawford and the first defendant, including during the period between the 2013 Will and the 2017 Will (and afterwards). However, there is no dispute that Mr Lawford and the first defendant ceased living together some years before Mr Lawford executed the 2017 Will; but that they maintained contact and for some time the first defendant continued to visit Mr Lawford regularly at his home. For a period of time the first defendant’s son and his wife also lived in a separate flat attached to Mr Lawford’s home.
[8] When Mr Lawford died the first defendant lodged a caveat against probate being granted in respect of the 2017 Will. On 1 October 2020 Whata J directed that the plaintiffs’ application proceed as an application for probate in solemn form, which it did.
[9] The first defendant challenged the 2017 Will on three bases. She alleged that Mr Lawford was under the undue influence of Messrs Lewis and Ferrier when he signed it, and that he lacked testamentary capacity in any event. She also alleged that Mr Lawford lacked knowledge and approval of the 2017 Will when he executed it.
Mr Maurangi
[10] Mr Maurangi was a beneficiary under both the 2013 Will and the 2017 Will. Under the former he was to receive a sum of money and a particular property. That property was sold before Mr Lawford executed the 2017 Will, so that gift adeemed. Mr Lawford left Mr Maurangi a larger sum in the 2017 Will.
[11] Mr Maurangi was not a party to the proceeding. He was not named as a defendant, and Associate Judge Bell directed that “directions for formal service on [him] are not required.1 Nor did he file a statement of defence or apply to be joined as a party, despite having been granted leave to do so.2 Mr Maurangi purported to file a notice reserving rights pursuant to rr 5.50 and 5.51, but those rules do not apply to Mr Maurangi because he is not a defendant. His former counsel was present during the trial, essentially with a watching brief.
1 Re Lawford Minute of Associate Judge Bell dated 23 October 2020.
2 Re Lawford Minute of Toogood J, 19 May 2022.
[12] Mr Maurangi did not attend the mediation at which the parties reached their compromise, but he is not prejudiced by it. If anything, there appears to be merit in counsel for the third defendant’s submission that because of the intervening sale of the property that Mr Maurangi was to have received under the 2013 Will he is better off if probate is granted of the 2017 Will. Mr Maurangi indicated through counsel that he is considering bringing a claim against Mr Lawford’s estate under the Law Reform (Testamentary Promises) Act 1949 (TPA). The details of any such claim are not apparent; but importantly any rights Mr Maurangi may have under the TPA will not be prejudiced regardless of whether probate of the 2017 Will is granted in common or solemn form.
Legal Framework
[13] Applications for probate in common form are made without notice pursuant to r 27.4 of the High Court Rules 2016. In making a grant of probate in common form the Court is not required to determine whether the will-maker was competent or possessed testamentary capacity at the time of executing the will. As such, where probate is granted in common form it remains susceptible to an application for the recall of probate, for example due to a lack of testamentary capacity.3
[14] If the will-maker’s competency or testamentary capacity are challenged, an application for a grant of probate in solemn form is made under r 27.6. The Court may only grant probate in solemn form if it is satisfied that the testator had capacity and that the will has otherwise been properly made. If probate is then granted in solemn form it can only be recalled where the grant of probate has been fraudulently obtained, or a subsequent will comes to light.
[15] Parties to an application for a grant of probate in solemn form may compromise. Rule 27.8 provides:
27.8 Compromises
(1)This rule applies if an application under rule 27.6 is the subject of a compromise, whether or not a statement of defence has been filed.
(2)The court may direct—
3 See High Court Rules 2016, r 27.34.
(a) that the application is to be treated as an application under rule 27.4; and
(b) that evidence on the application may be given by affidavit.
[16] Rule 27.8 recognises that when the parties to an application for a grant of probate in solemn form reach a compromise the Court has a discretion instead to grant probate in common form. There is nothing in rule 27.8 to suggest that the Court may not grant probate in solemn form when the parties compromise.
[17] However, in cases such as this where a testator’s capacity has properly been put in issue, the subsequent agreement or compromise of the parties is not determinative. The Court must still be satisfied as to Mr Lawford’s testamentary capacity when he executed the 2017 Will. If not, the Court may only grant probate of the 2017 Will in common form. This reflects the public interest in ensuring the deceased’s wishes are met.4
Should probate in solemn form or common form be granted in respect of the 2017 Will?
Testamentary capacity
[18] The plaintiffs have the onus of establishing that Mr Lawson had testamentary capacity when he executed the 2017 Will. The Court must be satisfied that on the balance of probabilities that Mr Lawford understood what a will is; generally understood his estate; appreciated the claims to which he ought to give effect; and was of sound mind.5
[19] Dr van Roekel is a general practitioner and was Mr Lawford’s doctor when he signed the 2017 Will. Dr van Roekel saw Mr Lawford on 4 April 2017. At that time Mr Lawford was suffering a form of delirium, which Dr van Roekel thought was caused by a urinary tract infection. He noted that Mr Lawford was “mentally less astute” and proscribed antibiotics. When Dr van Roekel visited Mr Lawford the
4 See for example Condon v Marshall (2006) 26 FRNZ 103 (HC); In the Estate of Watson [2017] NZHC 874; Rakich v Cox [2015] NZHC 703; and Endean v Endean [2020] NZHC 2575.
5 Woodward v Smith [2009] NZCA 215 at [19]. In Woodward the Court of Appeal accepted the leading authority on testamentary capacity, Banks v Goodfellow (1870) LR 5 QB 549, but restated it in more modern language.
following week he observed a “significant difference” in Mr Lawford who he said was alert and responsive, no longer withdrawn.
[20] Ms Guilford was Mr Lawford’s primary caregiver at the time he made the 2017 Will. She said he was mentally alert and able at that time. Mr Ferrier (a beneficiary and executor of the 2017 Will) saw Mr Lawford later on the day he made the 2017 Will and said he was alert and happy.
[21] Mr Lewis was Mr Lawford’s solicitor. He had worked with Mr Lawford concerning his will over a long period of time, including preparing various drafts subsequent to the 2013 Will which had been presented to Mr Lawford but which he had not executed. Mr Lewis said he was aware there were times when Mr Lawford’s capacity could be in doubt, but he was satisfied Mr Lawford had capacity when he executed the 2017 Will. He said he followed his usual practice of going through the will clause by clause, reading it and getting Mr Lawson’s assent. He said Mr Lawson requested an amendment to the draft will in relation to the first defendant, thereby demonstrating that he understood the process and was making rational decisions about various claims on his estate.
[22] Mr Lewis’ evidence in this regard was generally supported by that of Ms Wyness a solicitor, and Ms Sain, a legal executive, both of whom were also present when Mr Lawford executed the 2017 Will.
[23] The plaintiffs also adduced expert evidence from Dr Jane Casey and Professor Pesiah, two highly qualified psychiatrists specialising in old age psychiatry. They were each of the opinion that Mr Lawford would have had testamentary capacity when he signed the will. They explained that a testator with some degree of cognitive impairment can still have sufficient understanding of relevant matters to retain testamentary capacity.
[24] Each of these witnesses was cross-examined extensively on this issue, some as to their veracity. Nevertheless the evidence satisfies me on the balance of probabilities that Mr Lawford had testamentary capacity when he executed the 2017 Will.
Undue influence
[25] The first defendant’s defence (and counterclaim) of undue influence asserts that Messrs Lewis and Ferrier unduly influenced Mr Lawford to exclude the first defendant from the 2017 Will. They are alleged to have done this largely out of animosity towards the first defendant, although Mr Ferrier would receive a particular item under the 2017 Will that he would not receive under the 2013 Will.
[26] In the context of making a will, pressure of whatever character can amount to undue influence if it overbears the will of the testator. Circumstantial evidence is sufficient, although the Court must be satisfied both that undue influence was exercised and that the will would not have resulted but for that exercise. The burden of proof of undue influence rests on the person asserting it. 6
[27] Messrs Lewis and Ferrier strongly reject the allegation that they unduly influenced Mr Lawford. They (and other witnesses) were extensively cross-examined on the point and their veracity was challenged. They maintain that Mr Lawford executed the 2017 Will of his own volition, and that amendments concerning provision for the first defendant were made at his request.
[28] The matter was compromised before the first defendant’s evidence was tested by cross-examination. The first defendant no longer opposes the grant of probate in solemn form - although Ms Bruton KC says the first defendant makes no concession beyond the terms of the compromise. In those circumstances I am not satisfied by the evidence that Mr Lawford was unduly influenced when he executed the 2017 Will.
Want of knowledge and approval
[29] Having found that Mr Lawford had testamentary capacity I am satisfied that he knew and understood that the document he was executing was a will. There is no evidence to suggest that a fraud was being perpetuated on Mr Lawford when he executed the 2017 Will. As such, I accept the submission of counsel for Myles
6 Green v Green [2015] NZNC 1218 at [100] – [101], approved in Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [47].
Lawford that there is nothing to rebut the presumption as set out in Guardhouse v Blackburn that:7
the fact that the will has been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with his execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof.
Conclusion
[30] For these reasons I am satisfied it is appropriate to grant the plaintiffs probate in solemn form of the 2017 Will.
[31] I am also satisfied it is appropriate to make the other orders sought by consent as set out in the joint memorandum attached to the memorandum of counsel for the plaintiffs dated 7 February 2023; save that reference to Mr Maurangi should be removed. As noted, he did not attend the mediation and if he has any rights under the TPA those rights have not been compromised.
Result
[32] The plaintiffs’ application for probate in solemn form of the will of John Elliott Lawford dated 18 April 2017 is granted.
[33] I otherwise make orders in terms of paragraphs numbered 1-8 of the draft orders submitted by counsel for the plaintiffs dated 8 February 2023; save for the last sentence of paragraph 2.
Robinson J
7 Guardhouse v Blackburn (1866) LR 1 P&D 109.
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