Dodssuweit v Olivier

[2019] NZHC 1226

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-470-114

[2019] NZHC 1226

IN THE ESTATE

of Karin Margite Dodssuweit

BETWEEN

CORNELIA and STEPHAN DODSSUWEIT

Plaintiffs

AND

KEVIN NORMAN OLIVIER

First Defendant

BETTINA DODSSUWEIT
Second Defendant

KM DOD TRUSTEES LIMITED

Third Defendant

Hearing:

10 and 14 December 2018

Counsel:

SP Bryers for plaintiffs

G Brittain QC and J Delaney for second defendant

Judgment:

31 May 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 31 May 2019 at 2:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:Holland Beckett, Tauranga (D Fraundorfer) Reithar Stuart Law, Tauranga (P Stuart)

Pricilla Brown, Auckland

To:  V Bruton QC, Auckland

Dodssuweit v Olivier [2019] NZHC 1226 [31 May 2019]

CONTENTS

Introduction  [1]

Factual background

Introduction  [8]

Early period – to 2012  [16]
2016 to end of March 2017  [27]
Difficulties start to arise – April to early May 2017  [44]
Mrs Dodssuweit is admitted to Tauranga Hospital  [59]

The expert evidence  [134]

The plaintiffs’ expert evidence  [135]

Second defendant’s expert evidence  [146]

Legal principles - capacity

Testamentary capacity  [158]
Capacity to enter inter vivos transactions  [162]

The parties’ submissions

The plaintiffs’ submissions  [170]
Bettina’s submissions  [177]

Discussion - capacity  [183]

Unconscionable transactions

Unconscionable transactions – legal principles  [202]

The plaintiffs’ submissions  [205]

Bettina’s submissions  [206]

Discussion  [208]

Result  [213]

Costs  [215]

Introduction

[1]                   Karin Margite Dodssuweit (Mrs Dodssuweit) died of lung cancer on 2 June 2017, aged 70. Approximately two weeks before she died, she entered into various inter vivos transactions1 and executed a new will. The overall effect of the gifting transactions and will was to benefit her daughter, the second defendant (Bettina), to a significantly greater extent than her two siblings.2

[2]  Bettina’s siblings, Stephan and Cornelia, are the first and second plaintiffs. They bring these proceedings challenging the gifting transactions and their mother’s will. There are three primary causes of action: lack of testamentary capacity in relation to the will; invalidity of the gifting transactions due to lack of capacity; and an application to set aside the gifting transactions as unconscionable transactions.3 As was clear by the end of the hearing, however, the central issue for determination is whether Mrs Dodssuweit had capacity to enter into the gifting transactions and/or to make her last will.

[3]                   The issue of capacity arises not only because Mrs Dodssuweit entered into the gifting transactions and made her last will shortly before her death, but also because about a week prior to the transactions and will, she had been admitted to the Mental Health Unit at Tauranga Hospital on the basis there were reasonable grounds for believing she was mentally disordered.

[4]                   After  spending  10   days   at   Tauranga   Hospital,   it   was   clear   that   Mrs Dodssuweit’s primary need was appropriate palliative care. Upon funded palliative care being located and agreed, Mrs Dodssuweit was discharged into that care where she died a few weeks later.

1      I will refer to these…