Dolan v Dolan
[2025] NZHC 1929
•15 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-1083
[2025] NZHC 1929
UNDER the Land Transfer Act 2017 BETWEEN
MATTHEW JOSEPH DOLAN, as Executor named in the will of Mark Leo Dolan (Deceased)
Applicant
AND
ERIN KATHLEEN DOLAN
Respondent
Hearing: 8 July 2025 (by AVL) Appearances:
S R Carey and C Stanley for Applicant G C Jenkin for Respondent
Judgment:
15 July 2025
JUDGMENT OF ASSOCIATE JUDGE LESTER
(Application that caveat not lapse)
This judgment was delivered by me on 15 July 2025 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
…………………………….
DOLAN v DOLAN [2025] NZHC 1929 [15 July 2025]
[1] Matthew Dolan (Matthew) is the temporary administrator of the estate of his late brother, Mark Leo Dolan (Mark). The respondent, Erin Dolan (Erin) is Mark’s widow.
[2] Given Matthew was appointed temporary administrator immediately prior to the hearing there is, on an unopposed basis, an order that the name of the applicant is amended to Matthew Joseph Dolan of Wellington, Chief Executive Officer, in his capacity as temporary administrator of the last Will of Mark Leo Dolan.
[3] Mark and Erin entered into a de facto relationship either in late 2015 or 2017 (the difference is not material) and married in January 2021. Mark and Erin entered into an agreement under s 21 of the Property (Relationships) Act 1976 (the Act) on 31 August 2017 (the s 21 Agreement).
[4] In the s 21 Agreement, Mark and Erin set out their respective interests in a property at Auckland.
4.The parties acknowledge that the property is to be registered in the names of both parties as tenants in common i.e. as to ½ share each. Despite such registration the parties agree that the ownership of the property will be governed by the terms of this Agreement.
[5]Unfortunately, Mark was diagnosed with cancer and died on 29 August 2024.
[6] On 13 August 2024, the ownership of the property was changed from tenants in common in equal shares to joint tenants. Accordingly, as a result of Mark’s death, Erin became owner of the property by survivorship. Mark also made a Will on 16 August 2024 under which the residue, save for a very modest provision for Mark’s daughters from a previous relationship, was left to Erin.
[7] Mark’s daughters indicated to Matthew, as the named executor in the 16 August 2024 Will, that they intended to bring a claim against their father’s estate. Matthew has concerns about the circumstances in which the property ownership was converted from tenancy in common to a joint tenancy.
[8]Matthew lodged a caveat on the property in the following terms:
Estate or Interest claimed
Fee simple as to a ½ share for the Caveator Matthew Joseph Dolan, being the named executor in the Will of Mark Leo Dolan (deceased), on the basis that the transfer to joint tenants on 13 August 2024 is invalid as the deceased lacked capacity to effect the transfer or it was made under undue influence and in the alternative Fee simple as to a ½ share held by the Registered Owner Erin Kathleen Dolan as trustee on constructive trust for the Caveator, Matthew Joseph Dolan, being the named executor in the Will of Mark Leo Dolan (deceased), as beneficiary.
[9] As part of an agreement by which Erin agreed to Matthew being appointed temporary administrator of Mark’s estate, Matthew undertook to issue proceedings by 31 July 2025 against Erin in respect of the undue influence/lack of capacity claim. Erin, having taken steps to lapse the caveat, prompted Matthew to bring this application to have the caveat sustained pursuant to s 143 of the Land Transfer Act 2017.
The basis of the caveat
[10] Matthew’s argument in support of the caveatable interest can be briefly stated. If it is established that Erin obtained Mark’s agreement to convert the title in the property from tenants in common to a joint tenancy through undue influence and/or by taking advantage of Mark’s lack of capacity, then the conversion to joint tenancy will be set aside and Mark’s estate will be restored to the title as a tenant in common. That will be the objective of the proceedings referred to at [8] above. Mr Carey, counsel for Matthew, submits the claim of undue influence or a lack of capacity is reasonably arguable, a caveatable interest exists, and the caveat should be sustained.
[11] Mr Jenkin, counsel for Erin, submits that the interest claimed in the caveat set out at [8] above cannot be correct. Mr Jenkin submits that as Mark and Erin’s entitlement to the property is defined and determined by the s 21 Agreement, and as the caveat does not refer to the s 21 Agreement, it must follow the caveat does not properly describe the source or nature of any interest Mark’s estate could claim. Mr Jenkin went so far as to say that it does not matter what the title says because Mark and Erin’s entitlements are determined by the s 21 Agreement.
[12] I do not accept Mr Jenkin’s submission. The s 21 Agreement records that on 7 March 2017, Mark purchased the property in his sole name. On 21 April 2022, the property was registered in Mark and Erin’s names as tenants in common in equal shares. The s 21 Agreement further records that Mark financed the property with his own cash contribution and bank borrowing, and that Erin would contribute the sum that Mark had borrowed from the bank. The original cash contribution by Mark and the amount Erin was to pay to “take out” the bank lending are recorded as to remain the separate property of Mark and Erin. Clause 3 of the s 21 Agreement concluded:
“… if either Erin or Mark at a future time choose to sell the property each party shall take from the net proceeds of sale the separate property they initially put into the property … and the remaining sum (net proceeds), less any mortgage or other debts … on the property, shall be divided equally between the parties.”1
[13]The s 21 Agreement recorded at cl 12:
In the event of Mark’s death, Erin shall have no claim on the assets set out in Schedule B hereof, except to the extent that she is otherwise provided for in Mark’s will.
[14] Schedule B to the s 21 Agreement includes, as Mark’s separate property, the original cash contribution he put into the property at the time of purchase.
[15] Mr Jenkin developed an argument that because the Will of 16 August 2024 leaves the residue in Mark’s estate to Erin, that in effect, (not his words) all roads lead to Erin having complete ownership of the property. That is, even if Matthew’s proceeding succeeds and title reverts to tenants in common, the terms of Mark’s Will means his interest in the property will be taken by Erin under the Will.
[16] Mr Jenkin accepts that if Matthew’s proceeding succeeds, Mark’s estate will be put on the title as a result. However, Mr Jenkin focuses on the “incidence of ownership”, as he put it, recorded in the s 21 Agreement.
[17] As it is accepted that if Matthew’s proceeding succeeds the estate will become entitled to be on the title, I am satisfied that the caveat should be sustained. All the
1 The Agreement recorded that part of Erin’s contribution was made up of a mortgage that she would service herself, but that issue is not relevant to this proceeding.
s 21 Agreement specifies is the amount Mark’s estate and Erin are to receive upon the sale proceeds of the property. Mr Jenkin submits that while Mark and Erin agreed “… to the title being as tenants in common, they agreed expressly that their ownership of property shall be governed by the terms of the agreement”. In fact, what the parties agreed was how the proceeds of sale of the property would be shared. That does not impact on Mark’s estate’s entitlement to be on the title should Matthew’s proceeding succeed. Until a sale occurs, Mark’s estate would be entitled to be on the title — in other words, neither Mark nor Erin could have used the s 21 Agreement to remove the other from the title.
[18] Mr Jenkin submits that the tenancy in common is subject to the s 21 Agreement. If that submission is intended to say, that upon the sale of the property the net proceeds are to be divided as set out in the s 21 Agreement then I would accept that submission. However, if it is intended to convey that because the parties have agreed how the proceeds of sale will be divided that somehow means Mark or his estate was not entitled to be on the title, I do not accept that submission. The proposition is easily tested. But for the conversion of the title to joint tenancy on Mark’s death, Mark’s estate would be entitled to be registered on the title as a tenant in common. At that point, how Mark’s half-share would have been dealt with would be governed by the s 21 Agreement and Mark’s Will, subject to any claims against his estate.
[19] As to Mr Jenkin’s submission that whatever Mark’s interest is, it is left to Erin, it ignores that Mark’s estate is subject to a claim by Mark’s daughters.
[20] Mr Jenkin developed an argument that cl 12 of the s 21 Agreement means that Mark’s Will is incorporated into the s 21 Agreement by reference. Mr Jenkin submitted the s 21 Agreement read with the Will of 16 August 2024 determines the beneficial ownership of the property, because the s 21 Agreement survives Mark’s death and the Will speaks as at the same date. Mr Jenkin submits that although the joint tenancy was registered on 13 August 2024, some 16 days prior to death, on death the beneficial interest vested in terms of the Will, and that “is the end of the matter”.
[21] I do not see that submission as advancing Mr Jenkin’s argument. If anything, the words “except to the extent that she is otherwise provided for in Mark’s Will” set out in cl 12 of the s 21 Agreement, are a redundancy. Notwithstanding the s 21 Agreement, Mark retained testamentary freedom and could elect to leave his separate property to Erin with or without cl 12 of the s 21 Agreement. Be that as it may, the words referred to above in cl 12 do not ringfence Mark’s estate from a claim under the Family Protection Act 1980 or similar. Under Mark’s last Will, Erin is left the residue of his estate, not any interest in land that he may have had at his death. In other words, simply because Mark’s Will left the residue of his estate to Erin does not mean without more that she became on Mark’s death the legal or beneficial owner of any interest in land that may be in Mark’s estate. The residue would have to be ascertained and would be subject to any estate debts or claims against the estate. That, however, is the effect of Mr Jenkin’s argument when he says that the combined effect of the s 21 Agreement and the Will means there is no caveatable interest.
[22] Mr Jenkin was critical of the caveat not referring to the s 21 Agreement or the Will. In my view, that criticism is misplaced. The administrator’s claim does not depend on the terms of the s 21 Agreement, as it is based on the allegation of undue influence or lack of capacity which will be subject of the proceedings already referred to. Accordingly, I do not accept Mr Jenkin’s submission that the description of the claimed interest is wrong.
[23] What may need to be considered is whether the conversion of the title to a joint tenancy was valid given it was inconsistent with the s 21 Agreement. A variation to a s 21 Agreement must meet the formalities required for a s 21 agreement. Here, the August 2023 agreement between Mark and Erin to change how they owned the property did not meet those requirements, so whether it should be treated as effective as between Mark’s estate and Erin is a live issue. However, as that is not the basis upon which the caveat is sought to be upheld, I say no more about that issue. How Mark originally became registered as a tenant in common is not in issue and not the point of this application.
Is there an arguable case of undue influence/lack of capacity?
[24] Mr Jenkin, while emphasising that Erin strongly rejects any suggestion, she put pressure on Mark or that Mark lacked capacity, he understandably did not press the submission that there was not an arguable case of undue influence/lack of capacity, his focus being on whether the interest claimed was properly described in the caveat. That issue cannot be determined in a caveat proceeding.
[25]Mr Carey’s submissions as to an arguable case are as follows.
[26] Mark and Erin went on holiday to Bali in August 2024. Mark recounted to Matthew that, during that holiday Mark had been “in incredible pain”, lost his vision and had experienced a mental breakdown. After returning to New Zealand, Mark reported the issues he had experienced in Bali to the Harbour Cancer and Wellness Centre.
[27] On 11 August 2024, soon after returning from the Bali trip, Erin emailed a conveyancing lawyer, from an email address she used. She said that:
(a)She and Mark “regret changing the title” (that is, in April 2022) — this being despite the fact that change was something she and Mark had agreed to in 2017, in their s 21 Agreement.
(b)She and Mark wanted to change the property back to a joint tenancy to “protect each other in the event of one of us dying”. Mr Carey submits that wording is disingenuous, if not misleading, given that Erin must have known when writing that email that Mark’s death was imminent. The change to a joint tenancy was not effected to protect “each other”, it was done to protect Erin, Mr Carey submits.
[28]On 12 August 2024 Mark told his doctors that he was “weak, dizzy and fuzzy”.
[29] On 13 August 2024 at 3.01 pm, Mark advised the Harbour Cancer and Wellness Centre that he was “feeling awful” and “generally exhausted”.
[30] An hour and a half later, Mark and Erin attended the conveyancing lawyer’s offices and changed the ownership of the property to a joint tenancy, before going to the hospital emergency department for three hours.
[31] On or around 14 August 2024, Mark contacted Rice Craig about making a new Will. Rice Craig had drafted Mark’s 2016 Will. In an email to Mark of that date, Rice Craig advised that if Mark did not provide for his daughters in his Will, they would have the right to claim against his estate. Rice Craig noted Mark’s apparent advice that he and Erin had agreed that when the property was sold, a share would be given to Mark’s daughters.
[32] On 15 August 2024, Mark’s doctors noted that he looked weak, was vomiting every second day, and had “severely deteriorated” in the past month.
[33] On 16 August 2024, Mark used a different law firm, Gold Legal, to prepare what was his final Will. It left Mark’s estate to Erin, other than two-thirds of a $35,000 KiwiSaver account, which was left to his daughters.
[34] Gold Legal prepared the 2024 Will under urgency as they were told that Mark was about to have an operation, but Mark’s medical notes show no record of an operation that day, and state that by that time he had stopped all treatment.
[35] In an email to Gold Legal on the morning of 16 August 2024, said to be from Mark but sent from Erin’s email address (the same one used by her to contact the conveyancing lawyer), a request was made that the Will contain a no contest provision. The no contest clause did not end up in the Will, but the fact that it was raised at all was of particular concern to Matthew.
[36] The same email again referred to an agreement between Mark and Erin for provision to, among others, Mark’s daughters on sale of the property.
[37] In summary, over a five-day period shortly before Mark’s death, during which he was weak, bedridden, fuzzy and dizzy, and immediately following an overseas trip in which he had had a mental breakdown, Mark is said to have agreed to, in effect,
transfer ownership of the property to Erin out of his estate, and to all but disinherit his daughters.
[38] These actions were to Erin’s sole benefit. Matthew’s evidence is that they were contrary to repeated earlier statements by Mark about providing for his daughters, and that Mark’s behaviour at that time was “very out of character”.
[39] Mr Jenkin’s submission was in substance that the above narrative is one-sided. Mr Jenkin makes the sound point that Mark died through assisted dying which requires there to be certification of capacity. The certificate is in the evidence.
[40] The medical evidence produced by Matthew shows that Mark was very unwell, losing significant weight, with the medical notes recording that “Mark was really sick in Bali, mentally very stressed about being away from medical treatment …” and that his condition had seriously deteriorated in the month prior to August 2024. The timing of the above events, that Mark attended solicitors other than his usual solicitor to complete the conversion of the property from tenants in common to joint tenancy, and went to a different firm to change his Will, that the change in how the property is held is inconsistent with cl 4 of the s 21 Agreement set out at [4] above, and that the changes have the effect of practically disinheriting Mark’s daughters where there is evidence Mark intended to make provision for them, mean that I am satisfied that there is a reasonably arguable case that the conversion of the ownership of the property from tenants in common to joint tenants was brought about by undue influence and/or a lack of capacity. I accept Mr Carey’s submission it is not patently clear that is not the case.2
[41] Accordingly, there is an order in terms of paragraph 1(a) of the originating application dated 14 May 2025. The order is subject to the condition that the proceedings referred to at paragraph [9] above are filed by 31 July 2025.
2 Sims & Lowe [1988] 1 NZLR 656 (CA) at 660.
Costs
[42] The applicant being the successful party, is entitled to costs on a 2B basis plus disbursements as fixed by the Registrar.
Associate Judge Lester
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt (for Applicant) GMA Lawyers, Auckland (for Respondent)
Copy to counsel:
S R Carey
G C Jenkin, Barrister, Auckland (for Respondent)
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