Dennerly v Craig - [2021] NZHC 2605

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-601317

[2021] NZHC 2605

IN THE MATTER OF the estate of Jeffrey Ronald Clay

BETWEEN

ALISON VALERIE DENNERLY

Applicant

AND

ANDREA FIONA CRAIG, KATHERINE LOUISE HART and VANESSA JANE FREYA LE PROU

Caveators

Hearing: 10 May 2021

Counsel:

K G Davenport QC and A E Isaacs for applicant P J Radich and S A Wadworth for caveators

Judgment:

30 September 2021

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 30 September 2021 at 3.30pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Davenports Law, Auckland for applicant Radich Law, Blenheim for caveators

DENNERLY v CRAIG [2021] NZHC 2605 [30 September 2021]

Introduction – direction to show cause under s 61, Administration Act 1969 [1] The question for determination [6]

No dispute about the material facts [9]

Preliminary issue – has the caveat lapsed? [13]

Background [24]

Property acquisitions [26]

The 2006 wills – 28 March 2006 [30]

Jeff ’s and Fiona’s ill-health [34]

Fiona’s 2016 will – 12 May 2016 [36]

Fiona’s death – 26 February 2018  [40]
Jeff ’s second will – 1 May 2018  [43]
Sale of Matarangi property and distribution of proceeds  [45]
Jeff ’s purchase of the Aria Bay apartment  [46]

G’s explanations for the Matarangi sale and distribution [49]

The legal issues that arise in the proceeding [54]

Principles governing the challenge based on lack of testamentary capacity [64]

Principles governing the challenge based on undue influence [69]

The evidence [71]
Jeff’s capacity – the dementia issue [76]

The evidence on behalf of the caveators [77]

The evidence supporting the conclusion that Jeff had testamentary capacity in May 2018 [83]

The evidence of Jeff ’s legal advisers, G and M  [89]
G’s wife, L  [99]
Medical evidence  [107]

Discussion on capacity [117]

The allegation of undue influence [123]

Decision [127]

Order [129]

Costs [130]

Introduction – direction to show cause under s 61, Administration Act 1969

[1] Jeffrey Robert Clay (Jeff) died at Auckland on 26 December 2019 aged 80. His wife Fiona had died in February 2018.

[2] Jeff and Fiona had executed mirror wills in 2006 (the 2006 wills) in which Jeff’s daughters and Fiona’s three adult nieces Andrea, Katherine and Vanessa (Fiona’s nieces or the caveators) were the residuary beneficiaries of the estates under the wills.

[3] Jeff’s last will, dated 1 May 2018 (Jeff’s second will), is uncomplicated. He appointed his solicitor, G,1 as his sole executor and, after two specific bequests and the payment of debts, left the rest of his approximately $1.1 million estate to be divided

1 I have found it necessary in this judgment to criticise the quality of the solicitor’s work in some respects, and to be critical of the conduct of his wife (who worked in the solicitor’s practice at material times) in other respects. Because they have had no opportunity to respond to such criticisms and their identity…

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 Dennerly v Craig

Details

AGLC: Dennerly v Craig [2021] NZHC 2605
Case: [2021] NZHC 2605
Decision Date: 30 September 2021

CaseChat Overview and Summary

In Dennerly v Craig, the court was asked to determine whether a deceased man, Jeff, lacked the capacity to make a valid will when he executed it in May 2018, or whether he was under undue influence from his daughter, Alison, when he made the will. Jeff had previously made a will with his late wife, Fiona, in which they had agreed to leave their residuary estate to their children and Fiona's nieces. However, Jeff later made a will in which he left his entire estate to his daughters, excluding Fiona's nieces. Fiona's nieces challenged the validity of Jeff's will, arguing that he lacked testamentary capacity due to dementia and that Alison had unduly influenced him. The court found that Jeff had testamentary capacity when he executed his will, as there was no evidence of a lack of understanding or clarity on his part. Jeff's medical condition did not prevent him from making a straightforward decision about the provisions of his will. Additionally, the court found no evidence of undue influence by Alison, as Jeff had consulted his solicitor in private and made a decision that was entirely understandable. The court ultimately ruled that the caveators had failed to establish a tenable case that Jeff lacked the capacity to make his will or that it did not represent the exercise of his own free judgment.

The court directed that the order nisi be made absolute, granting probate of Jeff's will. The applicant was entitled to costs on a category 2B basis, and counsel were invited to confer and endeavour to reach an agreement on costs. If they were unable to reach an agreement, the applicant would file and serve a memorandum as to costs, and the caveators would have the opportunity to file a memorandum in response. Costs would then be determined on the papers unless the court directed otherwise.

Orders