Collins v Collins
[2023] NZHC 1491
•15 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-485-607
[2023] NZHC 1491
UNDER Part 18 of the High Court Rules 2016 IN THE MATTER
of the estate of MARGARET PAMELA COLLINS of Auckland, Deceased
BETWEEN
TERRENCE JAMES COLLINS
Plaintiff
AND
ANTHONY STEPHEN COLLINS
Defendant
Hearing: 20, 21 and 22 February 2023 Appearances:
S McCarthy KC for the Plaintiff T Homes for the Defendant
Judgment:
15 June 2023
JUDGMENT OF GAULT J
This judgment was delivered by me on 15 June 2023 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr S McCarthy KC, Barrister, Auckland
Ms C Reynolds (plaintiff’s instructing solicitor), Bruce Scott Muller Law, Auckland Ms T Homes, Vallant Hooker & Partners, Auckland
COLLINS v COLLINS [2023] NZHC 1491 [15 June 2023]
[1] This proceeding concerns a dispute between two brothers, Mr Terrence Collins (Terry) and Mr Anthony Collins (Anthony),1 as to the administration of the estate of their late mother, Mrs Pamela Collins. The issues are whether the Court should grant probate in respect of a will executed by Mrs Collins on 18 March 2015 (the 2015 will) or her earlier will dated 10 July 2014 (the 2014 will), and exercise the Court’s power to appoint different executors.2
[2] Anthony disputes the validity of the 2015 will on two grounds. First, he says that Mrs Collins lacked testamentary capacity. Secondly, he says that she did not know and approve of its contents.
[3] The dispute belies the fact that both wills provide for the residue of Mrs Collins’ estate to be distributed equally between her three sons, and that there are only two material differences between the wills.
(a)The first difference is that the 2015 will provides that Mrs Collins’ third (youngest) son, Mr Mark Collins (Mark), could live in Mrs Collins’ home for three years before the residue was to be divided.
(b)The second difference is that the 2014 will appointed Terry and Anthony as executors whereas the 2015 will appointed Terry and Mark as executors.
[4] Moreover, these differences are of considerably reduced effect since Mark pre-deceased Mrs Collins.
[5] Accordingly, the only material consequence of the disputed validity of the 2015 will concerns the appointment of executor(s).
[6] Nevertheless, Terry may have been duty bound to make an application for probate in relation to the 2015 will,3 particularly given Anthony’s broad challenge to Mrs Collins’ capacity.
1 I will use first names not for informality but for ease of differentiation.
2 Administration Act 1969, s 6(2).
3 Re Goods of Watts (1837) 1 Curt 594 at 595.
Factual background
[7] Anthony, Mrs Collins’ oldest son, is retired. Terry is a university professor based in the United States of America.
[8] As at 10 July 2014, Mrs Collins, a widow, lived in her property in Mangere Bridge, Auckland, together with Mark.
[9] A 10 July 2014 file note by Mrs Collins’ former solicitor, Ms Wratten, provides relevant background, indicating that Mrs Collins had concerns about whether Anthony would be influenced by his wife to move Mrs Collins into a rest home and move Mark out of the house. This stemmed from a conversation between Anthony’s wife and Mark.4 The lawyer’s file note continued:
Turning to her will, I asked Pamela to advise what changes she wanted to be made and how she wanted her estate to be dealt with. She advised that she was adamant she wanted her estate to be left equally to the three children but that the change she was considering making was for Anthony to no longer be “the boss” and for Terry to be the sole executor. She stressed that it is important to her that Mark is looked after but that it was more important that the boys were treated equally. She has explained that Terry is clear that if necessary, ie. if Anthony wants his share to be paid out immediately, then Terry will buy Anthony out so that, if necessary, the home can be kept for Mark.
…
I reiterated to Pam on a number of times [sic] different scenario sets etc that her instructions were that the legal position should be that the assets of the estate are brought together and distributed equally amongst the boys. Behind that in an formal [sic] setting, she wishes for her wishes to be made known to them and the most important of those wishes being that Mark is provided for and that she trusts them all to do the right thing by each other.
We spent a significant amount of time with Pamela agonising over whether to include both Anthony and Terry as executors or to remove Anthony and have Terry only. She reiterated again and again the issues regarding Ann [sic] and how that is the only issue that prevents her from being concerned [sic] about Anthony. …
[10] On the same day, 10 July 2014, Mrs Collins executed the 2014 will. It is common ground that, although then aged 86, her 2014 will was a valid will.
4 It is unnecessary to decide whether Mrs Collins received an accurate account of this conversation.
[11] On 14 July 2014, Ms Wratten wrote to Mrs Collins, stating in relation to the distribution of her estate:
We note the fundamental outcome of our meeting was your adamant assertion that your three sons should be provided for equally within your will but that you would make known to them during your lifetime, and leave them instructions as appropriate, on how you would like for your house to be dealt with and the importance to you of ensuring Mark is supported and provided for. Notwithstanding, you understand that if necessary or requested by any of the beneficiaries, your estate assets would be sold and distributed equally amongst your children.
... We note that the appointment of executors has particularly troubled you but that, at present, you are happy to provide for both Anthony and Terry to be executors of your estate. As discussed, this will require the two of them to act jointly in estate matters.
[12] On 23 July 2014, Ms Wratten made a file note of a telephone call from Terry in which he advised that he had attempted to call a family meeting but that Anthony had declined to attend or to commit to allowing Mark to remain in the home following their mother's death. Terry advised that his mother therefore considered that a change to the will may be necessary.
[13] On 2 August 2014, Mrs Collins suffered a fall and was admitted to Middlemore Hospital. She fractured her hip and sustained an acute brain injury, with a right subdural haematoma (brain bleed) diagnosed a few days after admission. For at least several days she was acutely confused, with ongoing signs of cognitive impairment, some of which were exacerbated by a urinary tract infection and side effects to medication.
[14] On 12 September 2014, Mrs Collins signed enduring powers of attorney (EPA) in relation to her property and her care and welfare appointing Terry as her attorney and Mark as her successor attorney if Terry’s appointment ceased.
[15]On 29 September 2014, Mrs Collins was discharged from hospital.
[16] On 21 October 2014, Mrs Collins suffered a further fall at home, suffering a new left subdural haematoma. She was readmitted to Middlemore Hospital.
[17] On 13 November 2014, following a family meeting with the care team at Middlemore Hospital the previous day, Mrs Collins’ geriatrician/gerontologist, Dr Yin, certified Mrs Collins’ mental incapacity for the purpose of activating her EPA.
[18] On 19 November 2014, Mrs Collins was discharged from Middlemore Hospital. Arrangements were subsequently made for her admission to Mercy Parklands, an aged care facility with hospital level care.
[19] On 2 December 2014, Mrs Collins was admitted to Mercy Parklands. The same day, Dr Mulgan saw Mrs Collins and noted that she was “pleasantly demented. Knows year, otherwise disoriented”.
[20] From about July 2014 and in early 2015, Terry said Mrs Collins raised with him concern about the 2014 will. She said she wanted Mark to be able to live in her home for as long as he wanted.
[21] In March 2015, Terry travelled to New Zealand for work and to see Mrs Collins. While in New Zealand, Terry arranged for Mrs Collins to make the 2015 will.
[22] On 12 March 2015, Terry called a new solicitor, Mr Hall at Murdoch Price, who had not previously acted for Mrs Collins. Terry told Mr Hall that Mrs Collins was unhappy with her will and wanted to change it so that Mark could live in her home for as long as he wanted. Terry requested Mr Hall to draft a new will to reflect her wishes. They also discussed arranging for Mrs Collins to be assessed by a doctor to confirm her capacity to make a new will.
[23]Following that call, Terry sent Mr Hall an email, relevantly stating:
Here is Mum’s existing will.
As her Enduring Power of Attorney, I am attempting to help Mum alter her will to honor her very strong wishes that my younger brother Mark will be able to live in her home for as long as he wishes after her death.
She will get assessed for competence tomorrow as well as see you in the afternoon. I will be there for any discussions.
[24] That same day, Terry also called Dr Mulgan, who had become Mrs Collins’ doctor on her admission to Mercy Parklands. Terry explained to Dr Mulgan that Mrs Collins wanted to change her will so that Mark may live in her house when she dies, and asked Dr Mulgan to assess her capacity to make this change. Dr Mulgan interviewed Mrs Collins for this purpose the next day, Friday 13 March 2015.
[25] In the late afternoon of 13 March 2015, Mr Hall met with Mrs Collins and Terry at Mercy Parklands to discuss Mrs Collins’ proposed new will. At Mr Hall’s request, Terry left Mr Hall alone with Mrs Collins for her to confirm the terms of the will. In a file note dated (Monday) 16 March 2015, but which may have been dictated on the previous Friday after the meeting, Mr Hall recorded that:
At my request, Terry advised me that he had arranged for his mother to be assessed by a doctor to confirm her capacity to make a new Will, but I saw no evidence of the assessment. However, she appeared to generally understand things although made some errors over such things as time periods and dates, and initially said that her son Mark was aged 35, when, I understand, he is aged 57.
…
I asked Mrs Collins what she wanted to provide in her Will and she advised that:
1.She wanted to treat her three sons equally.
2.She wanted to give Mark the right to live in her house property for as long as he wished.
I explained to her that there was an element of conflict in those instructions in that if Mark (as the youngest son) chose to live in the house property for the rest of his life, then it would be unlikely that the other two sons would receive anything from her estate, although of course their children may eventually benefit.
She responded that she did not envisage that Mark would want to live in the house for the rest of his life, so I suggested endeavouring to seek a compromise whereby he had the right to live in the house for up to a certain finite period.
[26] Mr Hall noted the discussion was left on the basis that Mrs Collins and Terry would discuss a possible compromise and let Mr Hall have further instructions.
[27]On 16 March 2015, Terry emailed Mr Hall:
Further to our conversation concerning Mum’s will, I hereby wish to retain you to act as my family’s solicitor and to perform the tasks prescribed below which have been developed upon instructions from Mum which we have agreed I would transmit to you and that you will confirm personally with Mum at the will signing.
·To produce a new will and get Mum’s approval and signature thereon where the new will expresses Mum’s wishes that Mark be able to live in the house undisturbed in any way for a period of three years with the estate being split three ways at the end of that period in the manner prescribed by the existing will. Mum wishes her trustees to be myself, Terrence James Collins, and my younger brother, Mark Francis Collins, which represents a change from the existing will.
·To have the existing will destroyed.
·To move the family papers from [Ms Wratten’s firm] to Murdoch Price with you as our family’s solicitor.
·To contact Mum’s GP, Dr. Roderick Mulgan … to obtain his assessment of Mum’s competence to give testimony as concerning these specifics in her will (which has been performed already) – I believe he agreed that Mum was competent to assert that she wanted Mark to live in the family home for as long as he wished to do so – she is changing that to a specific period of three years following your legal advice.
Many thanks and I look forward to seeing you at Mercy Parklands this coming Wednesday at 3:00 pm.
[28] Also on 16 March 2015, Mr Hall noted he received a telephone call from Dr Mulgan advising that Dr Mulgan considered that Mrs Collins had capacity to sign a will, and that Dr Mulgan would send a letter of confirmation. Dr Mulgan’s letter was undated but was received by Mr Hall on 25 March 2015. The letter relevantly stated:
I interviewed Ms Collins for this purpose on the 12th of March 2015.5 The only other person present was a Mercy Parklands nurse. She was able to explain to me in her own words and with no prompting that she wants her son Mark to live in her house when she dies for as long as he may choose to do so. We discussed this proposal and she showed a good grasp of her situation and the implications of what she was proposing. I am satisfied she understood what she was saying.
Ms Collins was adamant that this was her free wish, and that she was not under any pressure to make this decision.
5 Dr Mulgan accepted this occurred on 13 March 2015.
Ms Collins has never demonstrated any delusional belief that would influence her decisions.
It is my opinion that Ms Collins has the capacity to instruct her lawyer to change her will so that her son Mark may reside in her house after her death for so long as he chooses to do so.
[29] On 18 March 2015, after Mr Hall had prepared a new will based on the instructions relayed to him by Terry, Mr Hall met with Mrs Collins to have it executed. The 2015 will was signed by Mrs Collins and witnessed by Mr Hall and one other. The 2015 will provided for Mark to remain living in the house for a period of three years with the estate being split three ways at the end of that period.
[30]Mark died on 17 July 2015.
[31]Mrs Collins died on 1 January 2019, aged 91.
[32] On 16 January 2019, having become aware of the 2015 will, Anthony lodged a caveat to prevent probate being granted without notice to him.
[33] In mid-2019, prior to Terry’s proceeding seeking probate in relation to the 2015 will, Anthony applied to the Court for particular discovery before proceedings commenced of medical and financial documentation.6
Testamentary capacity
Applicable principles
[34] The principles relating to the assessment of testamentary capacity are well settled. They have been set out by the Court of Appeal in Woodward v Smith and Loosley v Powell,7 restating the principles laid down in the often-cited judgment of Banks v Goodfellow:8
6 Affidavits in that proceeding were sought to be adduced but were only admitted insofar as they were cross-referred to in evidence.
7 Woodward v Smith [2009] NZCA 215 at [19]; and Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19].
8 Banks v Goodfellow (1870) LR 5 QB 549 at 565-568.
(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;
(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.
[35] As the Court of Appeal has said, it is important to treat these Banks v Goodfellow criteria as guiding propositions rather than as a formula.9
[36] It is not only the date of the signing of the will that is relevant to the issue of capacity.10 Under the rule in Parker v Felgate,11 if, when the instructions were given by a will maker, that will maker had testamentary capacity, the will can be valid even though that testamentary capacity had been lost by the time of execution. As the Court of Appeal noted in Loosley v Powell,12 Parker v Felgate has often been applied and accepted as good law in English decisions. It has been criticised but the England and Wales Court of Appeal decision of Perrins v Holland did not accept the criticism.13 Parker v Felgate has been accepted by this Court.14 In Loosley v Powell the Court of Appeal did not consider that case was the appropriate occasion to review the rule’s application in New Zealand.15 Under the rule, the Court must be satisfied that there has been no revocation of the earlier instructions when the will is signed, all the more so when the earlier instructions involve a significant change from an earlier will for no apparent rational reason.16
[37] The relevant onus and standard of proof in a testamentary capacity case has been described by the Court of Appeal as follows:17
[3]In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless
9 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19].
10 At [22].
11 Parker v Felgate (1883) 8 PD 171 at 173-174.
12 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [23].
13 Perrins v Holland [2010] EWCA Civ 840, [2010] WTLR 1415 at [13]-[23].
14 Tansley v Trustees Executors and Agency Co of New Zealand HC Wellington CP698/92, 17 March 1994 at 5; Re Prasad [2012] NZHC 1489 at [97(e)]; and Farn v Loosley [2017] NZHC 317, [2017] 3 NZLR 383 at [43].
15 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [25].
16 At [24].17 Bishop v O’Dea [1999] 18 FRNZ 492 (CA), quoted in Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [20].
there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity.
[4]If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have testamentary capacity rests on those who seek probate of the will.
[5]That onus must be discharged on the balance of probabilities. Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.
Discussion
[38] It is common ground that by March 2015, Mrs Collins had significant cognitive impairment. However, cognition and capacity are not the same. The question is whether Mrs Collins had testamentary capacity. Even so, the background of mental incapacity in the medical records leading to the activation of Mrs Collins’ welfare EPA in November 2014 and subsequent delusions is evidence which raises lack of capacity as a tenable issue such that the onus of satisfying the Court that Mrs Collins did have testamentary capacity rests on Terry who seeks probate of the 2015 will.
[39] Terry, Anthony and Anthony’s wife observed Mrs Collins to various degrees. While no doubt well-intentioned, they cannot give expert evidence on her capacity.
[40] Dr Mulgan and Dr Malone gave expert evidence as to Mrs Collins’ capacity at the time of the 2015 will. Both are doctors experienced in assessing the capacity of elderly patients. Dr Mulgan had the advantage of assessing Mrs Collins in 2014/2015. While acknowledging that she appeared confused some days, he considered that when he assessed her on 13 March 2015 (five days before she signed the 2015 will) she had capacity to instruct her lawyer to change her will to allow her son Mark to live in her house after she died. Dr Malone’s opinion, based on medical notes and other evidence, was that there is serious doubt about Mrs Collins’ capacity to make a valid will on 18 March 2015.
[41] As the Court of Appeal said in Loosley v Powell,18 the opinions of expert witnesses who did not know the will maker, and who make their assessments after her
18 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [94], citing Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65] and [80]–[89].
death, must be treated with caution. They are trying to assess mental health from documentary evidence, and the observations of others, without the benefit of knowing or meeting the will maker. Also, rather than advocate a position, experts should limit their evidence to opinions within their area of expertise in order to assist the Court.
[42] There was a misunderstanding as to Dr Mulgan’s instructions. As indicated, Dr Mulgan said he was only opining on Mrs Collins’ capacity to change her will to allow her son Mark to live in her house after she died. Dr Mulgan said that capacity is specific to a stated question and acknowledged there are different elements that have to be tested if a new will is going to be presented.19 By contrast, Mr Hall (an experienced solicitor) thought Dr Mulgan was opining on whether Mrs Collins had capacity to sign a new will. In any event, Mr Hall prepared a new will for Mrs Collins to execute.
[43] Dr Mulgan acknowledged he had no discussion about changing executors. Mr McCarthy KC, for Terry, submitted that, while the change of executors was not recorded by Mr Hall in his file note, it was likely that Mr Hall would have raised it given his evidence that it was his practice to go through the contents of the will, alone, with his will makers.
[44] Mr McCarthy also submitted that Mr Hall’s file note showed that Mrs Collins knew she was talking about her will, and specifically about her plan for the disposition of her house following her death. He also referred to a nurse’s note that Mrs Collins was “cognitively good” on 13 March 2015. I accept, as Mr McCarthy submitted, that nothing showed that Mrs Collins affections towards her sons had altered and that the changed arrangement for the disposal of Mrs Collins’ property in the 2015 will was not a material diversion away from the 2014 will. In these circumstances, only a small amount of capacity is needed.20 I also accept that on 13 March 2015 Mrs Collins appeared to understand that she wanted to treat her three sons equally but that she also wanted to give Mark the right to live in her house for as long as he wished. That
19 He may well have been referring to the checklist endorsed by the Court of Appeal in Woodward v Smith [2009] NZCA 215 at [57] and [59] and in Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [51].
20 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [32], referring to Re Rhodes HC Wellington CP25/02, 7 March 2002 at [40].
resonates with her strong wish that Mark be provided for, recorded in the file note on the day of the 2014 will.
[45] Even so, treating the Banks v Goodfellow criteria as guiding propositions rather than as a formula, I consider the evidence does not satisfy the onus of proving that Mrs Collins had testamentary capacity to make a new will on 18 March 2015. While the changes from her 2014 will and her 13 March 2015 discussion with Mr Hall were modest (both in respect of Mark living in the house for three years and being appointed an executor instead of Anthony), Dr Mulgan’s 13 March 2015 capacity assessment is of limited assistance given his narrow focus. Mr Hall’s only file note related to his 13 March 2015 discussion with Mrs Collins. In relation to his attendance on her on 18 March 2015 when she executed the will, he could only say that his practice was to go through the contents of the will, alone, with the will maker when having it executed.21 Hence, the only direct evidence of Mrs Collins’ testamentary capacity on 18 March 2015 is Mr Hall’s observation that she had the same grasp of what she wanted to achieve as at his first meeting with her. In terms of the rule in Parker v Felgate, the evidence does not show that Mrs Collins had capacity when she relayed her instructions to Terry on or before 16 March 2015. Given the background evidence raising lack of capacity as a tenable issue, more was required.
[46] For these reasons, I conclude that Mrs Collins lacked capacity to make the 2015 will. It follows that probate may be granted in relation to the 2014 will.
Knowledge and approval
Applicable principles
[47] Even where there is no lack of testamentary capacity, the will maker’s knowledge and approval of a will’s contents can be in issue. As the Court of Appeal said in Mumby v Mumby:22
Knowledge of the contents, of course, is a prerequisite for validity.23 The execution of the will formally signifies approval of its contents as expressing the testamentary intentions of the will maker. However, even if a
21 He also accepted that he did not pick up that the 2015 will gave Mark an indemnity.
22 Mumby v Mumby [2017] NZCA 394 at [14].
23 Hastilow v Stobie (1865) LR 1 P & D 64 (Prob) at 68.
will appears in order on its face, it can be challenged on a number of grounds at common law, all of which go to whether in fact the will maker had knowledge of the contents of the will and genuinely approved them.
[48] This requirement is conceptually distinct and separate from testamentary capacity.24 Since the usual position is that execution formally signifies approval, an inquiry as to knowledge and approval arises where suspicion attaches to the document.25
Discussion
[49] Given my finding of Mrs Collins’ lack of testamentary capacity, I deal with this alternate ground only briefly. It was raised late. I doubt that the changes to the 2015 will benefitted Terry such that suspicion attaches to the document. Mrs Collins had considered allowing Mark to live in the house and removing Anthony as executor at the time of the 2014 will. While Mr Hall appeared to take instructions via Terry, Mrs Collins’ limited role is hardly surprising given her health. Mrs Collins was the client and should have been sent the relevant documents, but if testamentary capacity had been proved I would have concluded that Mrs Collins had knowledge of and approved the contents of the 2015 will.
Executor(s)
Applicable principles
[50] Section 6 of the Administration Act 1969 deals with the Court’s discretion as to the person to whom administration is granted. Section 6(2) provides:
(2)Where by reason of the insolvency of the estate or other special circumstances the court thinks it necessary or expedient to do so, it may—
(a)grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed an executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration:
24 Drummond v Davidson [2016] NZHC 1888 at [172], citing Hoff v Atherton [2004] EWCA Civ 1554 at [62]; and Gorringe v Pointon [2022] NZHC 342 at [83], citing Hoff v Atherton at [33].
25 McGarvey v Temo [2008] NZCA 375 at [22] citing Guardhouse v Blackburn (1866) 1 LR P & D 109 at 116; and Tanner v Public Trustee [1973] 1 NZLR 68 (CA).
(b)grant probate to 1 or more of the executors appointed by a will, notwithstanding that some other person or persons may also be appointed as an executor or executors.
[51] Section 21(1) also provides the Court with power to remove an administrator where it becomes expedient to do so.
Discussion
[52] Having concluded that the 2014 will is Mrs Collins’ last valid will, the starting point is that she appointed both Terry and Anthony as executors and trustees of her estate.
[53] I was told that in separate ongoing Family Court proceedings Anthony seeks to review decisions made by Terry as Mrs Collins’ attorney. In those proceedings at least, each says the other should not be appointed executor. Mr McCarthy submitted that if Anthony is appointed as executor, he could continue his Family Court proceeding as executor and use estate funds to pay his legal costs. Mr McCarthy submitted that given they share Mrs Collins’ estate equally, each should meet their own legal costs subject to any costs award of the Family Court.
[54] In this proceeding, Terry said in an earlier affidavit that he and Anthony could not work together and proposed that Perpetual Trust Ltd be appointed as executor and trustee, and Perpetual consents to do so. However, Terry gave evidence that he remains prepared to be jointly appointed with Anthony under the 2014 will.
[55] Anthony also remains willing to act as executor. As an alternative, and assuming Terry had renounced being an executor, Ms Homes, for Anthony, proposed in opening that he be appointed jointly with an independent solicitor who has agreed to be nominated. In evidence, Anthony also acknowledged the possibility of the solicitor being the sole executor. Ms Homes indicated in closing that Anthony wants to be an executor, even with Terry.
[56] As Ms Homes submitted, the Court will not readily replace an executor selected by a deceased to manage his or her estate.26 Involving an independent executor and trustee adds cost to the administration of an estate. This is not a large estate. Both Terry and Anthony must appreciate their legal obligations as executors and trustees. That includes Anthony’s obligation to remain neutral despite his Family Court proceedings.
[57] I do not consider the dispute between Terry and Anthony amounts to special circumstances such that it is necessary or expedient to appoint an independent executor and trustee instead of Terry or Anthony under s 6(2) of the Administration Act 1969. I consider that Terry and Anthony should jointly be appointed executors and trustees of their mother’s 2014 will, in accordance with her wishes.
Result
[58] Probate is granted in relation to the will executed by Mrs Margaret Pamela Collins on 10 July 2014 to both executors appointed by that will, Mr Terrence James Collins and Mr Anthony Stephen Collins.
Costs
[59] In the circumstances of this case, I am inclined to make no order as to costs. However, if costs cannot be agreed, memoranda (not exceeding three pages) may be filed within 20 working days and I will determine costs on the papers.
Gault J
26 Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 at [27](a), citing Farquhar v Nunns [2013] NZHC 1670, Hinde v Cranwell [2012] NZHC 63 at [27] and Crick v McIlraith [2012] NZHC 1290 at [19].
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