De Gregorio v Surridge

[2019] NZHC 1802

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-602870

[2019] NZHC 1802

UNDER

the Administration Act 1969

IN THE MATTER

of the Estate of Wilbur Surridge

BETWEEN

NUNZIO DE GREGORIO

Plaintiff

AND

ANNE JOSEPHINE SURRIDGE

First Defendant

PAUL HOUSTON SURRIDGE

Second Defendant

CIV-2018-485-65

BETWEEN

MARION JOAN PEARSON
Plaintiff

AND

DAVID VANCE AS TEMPORARY ADMINISTRATOR OF THE ESTATE OF WILBUR GEORGE SURRIDGE

Defendant

Hearing:

5-9 November and 12 November 2018

Appearances:

No appearance for Plaintiff (CIV-2017-485-602870)

C T Patterson for First Defendant (CIV-2017-485-602870) S J Iorns for Second Defendant (CIV-2017-485-602870) N Levy for Plaintiff (CIV-2018-485-65)

No appearance for Defendant (CIV-2018-485-65)

Judgment:

29 July 2019

Reissued:

30 July 2019

JUDGMENT OF CLARK J

DE GREGORIO v SURRIDGE [2019] NZHC 1802 [29 July 2019]

Table of Contents

Para No

Overview and issues  [1]

Background in more detail[10]

Testamentary capacity: the law[21]

Testamentary capacity: summary of parties’ positions[27]
Anne’s position[27]
Paul’s position[29]

Ms Pearson’s position[30]

Testamentary capacity: evidence  [31]

Paul’s evidence[32]
Judith’s evidence[38]

Mr Connor’s evidence[40]

Courtney Scrymgeour’s evidence[46]

William Bell’s evidence[48]

David Ingram’s evidence[51]

Ms Pearson’s evidence[52]

Medical evidence[54]
Anne’s evidence[56]

Murray Wright’s evidence[58]
Jane’s evidence[63]
Josephine’s evidence[69]

Dr Stuart Mossman[72]

Dr Brian Young[83]

Testamentary capacity: assessment  [90]

Undue Influence: the law[115]
Undue influence: summary of parties’ positions[116]
Anne’s position[116]
Paul’s position[118]

Undue Influence: assessment  [120]

Ms Pearson’s claim[141]

Settlement deed[142]

Positions of the parties[144]

Abuse of process[148]
Alternative claim in intended breach of contract[157]

The path forward[160]

Result[167]

Overview and issues

[1]                 The deceased Wilbur Surridge, known in life as Lofty and so called throughout the hearing, was a successful businessman, and an idiosyncratic and curmudgeonly individual. He established a number of companies that manufactured and supplied cleaning products. As at the date of the hearing the assets of the Surridge companies were estimated to be worth approximately $8.6 million.

[2]                 Lofty died on 15 December 2016 survived by five adult children and a number of grandchildren and great-grandchildren. In this judgment I refer to the members of the Surridge family by their first names. In  his  latest  will,  Lofty  appointed  Nunzio de Gregorio the executor and trustee of his will. After making a gift of

$10,000 to a charitable organisation, Lofty left the residue of his estate to four of his children Paul, Jane, Judith and Josephine (22.5 per cent each). For reasons explained in the will, Lofty made a bequest of significantly less value to his daughter Anne who was to receive the remaining 10 per cent of the residue.

[3]                 Three documents central to this proceeding were prepared and executed in circumstances of urgency on 21 January 2014. On that day, 89-year-old Lofty was ill in hospital, bleeding from the bowel, sleep deprived and distressed. He wanted to order his affairs. The following three documents were executed:

(a)Lofty’s latest will dated 21 January 2014 (the 2014 will).

(b)A deed of assignment by which, in consideration of the sum of $10, Lofty assigned to Ms Pearson, his daughter-in-law, his legal…