Legal Research
Cases
Collins v Collins

Collins v Collins

Case [2023] NZHC 1491 15 June 2023

Testamentary Capacity

Executor

Probate

Knowledge and Approval

Administrator Appointment

Succession Law

No judgment structure available for this case.

Type to search within this case.

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Collins v Collins

Details

AGLC: Collins v Collins [2023] NZHC 1491
Case: [2023] NZHC 1491
Decision Date: 15 June 2023

CaseChat Overview and Summary

This case concerns a dispute between two brothers, Terry and Anthony Collins, regarding the administration of their late mother's estate. The primary issue was whether the Court should grant probate in respect of their mother's 2015 will or her earlier 2014 will and whether the Court should exercise its power to appoint different executors. Anthony disputed the validity of the 2015 will, arguing that their mother lacked testamentary capacity and did not know and approve of its contents. The court found that although there were only minor differences between the two wills, the only material consequence of the validity of the 2015 will related to the appointment of executor(s). The court found that Mrs Collins lacked capacity to make the 2015 will, and probate may be granted in relation to the 2014 will. The court held that the 2014 will appointed both Terry and Anthony as executors and trustees of their mother's estate, and they should jointly be appointed executors and trustees of their mother's 2014 will, in accordance with her wishes. 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. In the circumstances of this case, the court is 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 the court will determine costs on the papers.

Orders