Endean v Endean - [2020] NZHC 2575

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1774

[2020] NZHC 2575

UNDER Parts 5 and Rule 27(5) of the High Court Rules, the Administration Act 1969 and the Wills Act 2007

IN THE MATTER

of the estate of JENNY LUCY MARTIN

BETWEEN

LINDA MARY ENDEAN AND JOHN ENDEAN

Plaintiffs

AND

LINDA MARY ENDEAN AND ROBERT EDWARD MCGINNESS

Defendants

Hearing: 29 September 2020

Appearances:

W E Andrews for the Plaintiffs

No appearance by or on behalf of the Defendants

Judgment:

1 October 2020

JUDGMENT OF GORDON J

This judgment was delivered by me
on 1 October 2020 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:Dawsons, Auckland Davenports West, Auckland
Counsel:W Andrews, Auckland M Locke, Auckland

ENDEAN v ENDEAN [2020] NZHC 2575 [1 October 2020]

Introduction

[1] The plaintiffs Linda and John Endean (Mr and Mrs Endean) are the joint executors of a will made in 1994 by the deceased, Jenny Martin, Mrs Endean’s sister. Mrs Endean is the sole executor of another will made by Ms Martin in 2018.

[2] Mr and Mrs Endean plead that they are uncertain as to which is the last proper will of Ms Martin. They raise the issue of whether Ms Martin had testamentary capacity when she executed the 2018 will.

[3] Under the 1994 will, Ms Martin left her entire estate to Mrs Endean. Under the 2018 will, Ms Martin left certain property to the second named defendant, Robert McGinness, and other property to Mrs Endean.

[4] Mr McGinness was named as an executor and trustee of the 2018 will, along with Mrs Endean, but he renounced his right to seek appointment as such. In his personal capacity he initially opposed the proceeding, which although seeking an order in the alternative, expressed a preference for the 1994 will.

[5] Mr and Mrs Endean and Mr McGinness have now entered into a Deed of Settlement. As a consequence, Mr McGinness has withdrawn his opposition to the grant of probate in respect of the 1994 will and any relevant ancillary relief. He did not seek to be heard at the hearing which accordingly proceeded by way of formal proof.

[6] Although the statement of claim raised the issue of undue influence, Ms Andrews, who appears for Mr and Mrs Endean, confirms that the sole issue in the proceeding is whether Ms Martin had testamentary capacity when she executed the 2018 will.

The proper procedure

[7] Although the parties have settled matters as between themselves, it is not open to them to consent to “make a will no will”.1 That is a matter for the Court to determine. In Re Watson,2 Gilbert J said:

[10] An executor is duty bound to carry out the testator’s wishes by taking all proper steps to prove the validity of the last potentially valid will. An executor is not free to choose which will to seek probate for in circumstances where…

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 Endean v Endean

Details

AGLC: Endean v Endean [2020] NZHC 2575
Case: [2020] NZHC 2575
Decision Date: 1 October 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Linda and John Endean, sought to determine which of two wills executed by the deceased, Jenny Martin, was her last valid will. The plaintiffs raised the issue of whether Ms Martin had testamentary capacity when she executed the 2018 will. The 1994 will left her entire estate to Mrs Endean, whereas the 2018 will left certain property to Robert McGinness and other property to Mrs Endean. Mr McGinness was named as an executor and trustee of the 2018 will but renounced his right to seek appointment as such. The primary issue for the court to decide was whether Ms Martin had testamentary capacity when she executed the 2018 will. The court considered the medical history of Ms Martin, her cognitive decline, and the circumstances surrounding the execution of the 2018 will. The court concluded that the evidence indicated that Ms Martin lacked testamentary capacity when she executed the 2018 will. The court found that the 2018 will was invalid due to the lack of testamentary capacity and appointed the plaintiffs as joint administrators and executors of the 1994 will. Consequently, the plaintiffs may apply for a grant of probate of the 1994 will. There was no issue as to costs.

Orders