Endean v Endean
[2020] NZHC 2575
•1 October 2020
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 As a consequence, Mr McGinness has withdrawn his opposition to the grant of probate in respect of the 1994 will and any relevant ancillary relief.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 testamentary capacity is in doubt. The [executor’s] duty to propound any will he believes may be the last valid will of the testator is not discharged by the consent of affected beneficiaries. As Sir Herbert Jenner said in In the Goods of Watts:
The consent of parties interested proves nothing; no person’s consent can make a will no will.
[11] In Re Young, Wilson J stated that the proper course to follow in cases like the present, where the same executor is appointed under two wills and there is doubt about testamentary capacity at the time the later will was made, is to seek to admit both wills to probate so that the Court can determine which is the last valid will:
It is the duty of an executor of any will which he believes may be the valid last will of the testator to propound it and to take all proper steps to prove its validity. It is not his duty to decide, in any doubtful case, whether or not he should do so, it being the function of the Court to resolve such doubt. If he is not prepared to propound a will which appoints him executor he should renounce his right as such. If a person is named as executor in more than one will and he is uncertain which is the last valid will he should propound each one, as alternatives.
(citations omitted)
[8] Mr and Mrs Endean accept that in applying for probate they cannot choose between the wills. Hence the need for this hearing.
Background
[9] Ms Martin was born on 16 May 1939 and died on 28 October 2018, aged 79. She was one of three sisters who were very close. The third sister, Elaine, died in June 1994.
1 Rakich v Cox [2015] NZHC 703 at [10], citing In the Goods of Watts (1837) 1 Curt 594 at 595, 163 ER 208 at 208 and Re Young [1968] NZLR 1178 (SC) at 1179.
2 Re Watson [2014] NZHC 874.
[10] Ms Martin never married and she had no children. She and Mr McGinness were in a relationship for a year or two when they were both in their 20s. They reconnected many years later, in 1994. At some stage after that Mr McGinness moved into Ms Martin’s house. Mr McGinness was living there at the time of Ms Martin’s death. He was involved in her care. There was an issue between the parties as to whether Ms Martin and Mr McGinness were in a relationship during this period or whether he was a boarder at her house. However, it is not necessary for that to be resolved.
1994 will and Power of Attorney
[11] On 9 March 1994, Ms Martin executed a will appointing Mr and Mrs Endean as executors and administrators and, subject to Mrs Endean surviving her, Ms Martin left the entirety of her estate to Mrs Endean. There is no issue over Ms Martin’s testamentary capacity at the time she executed the 1994 will.
[12] In August 2016, Claire Endean (the niece of Mr Endean) then acting as solicitor for Ms Martin, met Ms Martin to discuss appointing someone as attorney over her affairs. Ms Martin advised Ms Endean that she wanted Mrs Endean to have the power of attorney over her property and personal care and welfare and Mrs Endean’s son as her successor attorney.
[13] Ms Endean drafted the relevant documents and on 30 September 2016 Ms Martin signed the enduring power of attorney documents in terms as had been discussed. At the same time Ms Endean went through the provisions of Ms Martin’s 1994 will with her and asked her if she wished to update it. Ms Martin said she was happy with it and did not want to make any changes.
Cognitive decline
[14] The appointment with Ms Endean was as a result of Mrs Endean noticing a steady decline in Ms Martin’s memory during 2016. Then, from 2017, in summary, Mrs Endean’s evidence is that she had increasing concerns about her sister’s cognitive impairment. Her affidavit describes repetitiveness, disorientation as to time and both short and long term memory impairment. Mrs Endean refers to the diagnosis of
Alzheimer’s disease in March 2017 (referred to below in the context of Ms Martin’s medical history) and says that, during 2017, Ms Martin stopped driving and required assistance for other activities of daily living, including shopping and the use of her EFTPOS card. Mrs Endean refers to Ms Martin’s increasing confusion and agitation in 2018. During a period when Mr McGinness was away in May 2018, Ms Martin stayed with Mrs Endean. Ms Martin’s personality and behaviour had changed. Mrs Endean describes uncharacteristic abusive behaviour, anger and self-neglect.
Medical history
[15] At this point in the narrative I turn to the affidavit of Dr Jane Casey filed by Mr and Mrs Endean. Dr Casey is a consultant psychiatrist specialising in geriatric psychiatry who, for the last 18 years, has worked in both a private capacity and at the Auckland District Health Board as a specialist in the Mental Health Service for Older People. She worked in Canterbury Hospitals for the 10 years prior to this as a consultant psychiatrist and psychogeriatrician and Senior Psychogeriatric Registrar. She is currently an honorary senior lecturer at the Auckland University and previously worked as a senior lecturer in old age psychiatry for the University of Otago. She is a member of the International Psychogeriatric Association Capacity Shared Interest Forum and the Taskforce for Testamentary Capacity and Undue Influence.
[16] Dr Casey has reviewed the affidavit evidence as well as the available clinical notes and medical records. Ms Martin first enrolled in the Byron Medical Centre on 10 February 2016. There is a note dated 9 August 2016 which says:
Coming with her sister. Worried she has been confused today, and memory declining, gradual onset. Today unwell, shaky since morning, worse now, felt confused today, did not remember how to close garage door.
[17]On 22 August 2016, the notes record:
Memory problem, difficulty in remembering things, forgetful, sister was concerned about her memory. … I’ve done GPCOG screen: score 4/9, discussed with patient referral to The Memory Clinic for review.
[18] The GPCOG bedside examination that day demonstrated that Ms Martin was not oriented to month and in the clock drawing test was unable to correctly mark the
hands on the clock face. In the short term memory test, one out of five items was recalled.
[19] Ms Martin was then seen at the Memory Clinic. The initial assessment was performed by a general medical registrar for Dr Phil Wood, Consultant Geriatrician. In the reporting letter dated 15 February 2017 the provisional diagnosis was:
… multi-domain mild cognitive impairment, however there seems to be minimal or no functional limitations. The lack of a supporting person to provide collateral history limits this assessment.
[20] On 28 March 2017, Ms Martin, accompanied by Mrs Endean, was reviewed by Dr Wood. He noted a family history of dementia. He made the diagnosis of Alzheimer’s disease. The Addenbrooke’s Cognitive Examination – III score was 74/100 where 82/100 is the cut off for Dementia. Dr Casey’s evidence is that studies have demonstrated good sensitivity and specificity for this cut off to make the diagnosis. There was evidence of cognitive impairment across multiple domains with more marked deficits in attention, memory and verbal fluency, with relative preservation of language and visuospatial function. Given the minimal functional decline at that time, it was determined to then be of a mild degree. It was agreed that Ms Martin would trial the cognitive enhancer drug Donepezil.
[21] On 12 June 2017 Ms Martin’s GP’s file records, “Stopped taking Donepezil 10 mg nocte due to nightmares”. In the plan it was noted, “She can try to restart take
½ tab 5 mg mane for one week and review if still having nightmares to stop it”.
[22]On 4 December 2017, the GP’s file records:
Cognitive impairment. Seen today with a list of her problems. She has been feeling better, on Donepezil 10 mg daily at night. I’ve notice [sic] she’s more forgetful, she was able to tell me she will be spending Christmas with her sister in Omaha.
[23] On 13 March 2018 there was a review by her cardiologist. Among the multiple medical problems he noted, “Significant cognitive dysfunction”. On taking a history from Ms Martin he stated, “I would note that Jenny’s memory does significantly reduce the reliability of points of history”.
[24] In commenting on the cardiologist’s observations, Dr Casey states that progression of the cognitive impairment is consistent with the natural history of the disease.
[25] The problem of the dementia was then overshadowed by the new onset of physical symptoms of fatigue and weakness. The GP’s notes of 14 April 2018 refer to a “suspicious shadow” on Ms Martin’s chest x-ray. Investigations confirmed carcinoma of the lung on 6 June 2018. The follow up notes of 14 June 2018 state: “despite the mild cognitive deficit, is otherwise in good health. She is keen for treatment”.
[26] The notes from an oncologist at Auckland District Health Board (ADHB), on 28 June 2018, state that “she obviously has some mild cognitive impairment but she seemed to take on board the relative urgent need for treatment and the potential side effects of chemotherapy”.
[27] At the follow up visit, on 18 July 2018, it was recorded that, after discussion with family and friends, Ms Martin had decided against chemotherapy. The doctor goes on to state in the notes:
I am not quite sure that Jenny understands the prognosis with extensive stage small cell and mentioned to me several times today about looking forward to reaching her 80th birthday which would not be until May of next year.
[28] A referral was made to Hospice with consent from “Jenny and Bob [Mr McGinness]”.3
[29]There are no general practitioner notes at or around July and August 2018.
2018 will
[30]At this point I turn to the events leading up to the signing of the 2018 will.
3 All future references to “Bob” in various file notes are to Mr McGinness.
[31] At the end of June 2018, Mr McGinness made an appointment to see a partner in an Auckland law firm.4 He had not used the law firm before but did so because of a personal connection and recommendation. He and Ms Martin met the partner to discuss wills for each of them. The partner then handed the matter on to a legal executive in the firm.
[32] On 2 July 2018, Mr McGinness visited the legal executive and provided her with a will checklist/instruction for both himself and Ms Martin. Ms Martin’s checklist had been completed by Mr McGinness. On 6 July 2018 the legal executive emailed draft wills to Mr McGinness.
[33] On 17 July 2018, Ms Martin and Mr McGinness met with the legal executive. They had not met her before. She had been told by the partner before the meeting that Ms Martin had been diagnosed with dementia and terminal cancer. Her file note of the 17 July 2018 meeting includes the following:
Jenny was seen by a Doctor in March and diagnosed with mild cognitive impairment and has recently been diagnosed with terminal cancer and she has refused any treatment.
[34] The issue of the existing power of attorney was raised and the legal executive’s file note records:
However, Jenny has no recollection of exactly what the terms of the enduring powers of attorney are. I have to note that Jenny’s recollection of doing the powers of attorney did come and go during the meeting …
[35] In her affidavit the legal executive recalls: “I asked Jenny if she made a will at the same time, but she couldn’t recall”. The file note further states:
It was obvious that Jenny has cognitive impairment as her ability to recall did come and go throughout the meeting. However, I am confident that after repeated questioning she expressed twice that it was her wish that the Welland Place property is to go to Bob. I also asked Jenny if she owned any other assets and she immediately recalled that she owned another property with her sister and that this should go to her sister. Jenny did have difficulty recalling Bob’s plans to leave his estate to his daughter and Jenny’s nephew Michael equally, but went on to say that she didn’t care because she would be dead. Jenny corrected me twice on the pronunciation of the street name “Welland”.
4 It was a different law firm from the firm for which Ms Claire Endean worked.
[36]The file note continued:
During our discussion, Jenny expressed to me that she understood that she was here to deal with her affairs because of her terminal cancer diagnosis and was able to recall other details such as that she did not have children, she had not been in any other “relationships” apart from many boyfriends, she recalled the street number and road name of Welland Place, that she had repaid the BNZ mortgage over that property, she knew she owned another property with her sister, she knew her age although was not too clear on her birth date and she thought she had a birthday coming up soon (May next year).
[37] The legal executive concluded her file note by saying: “I believe that Jenny has testamentary capacity to make a will”.
[38] There was no discussion about the previous will. Nor did the law firm obtain a copy of the previous will.
[39] There is then a record of a further meeting on 26 July 2018 when the legal executive met Ms Martin on her own for an hour. The legal executive’s file note includes the following:
During our meeting Jenny said that she had not seen the draft will that I had emailed to Bob.
To ensure that Jenny was very clear on the contents of her will I went through the will but after a considerable amount of discussion and explanation about her will she was not able to recall her instructions that Bob and Linda be her executors and that the rental property would go to Linda.
[40] She was not able to make up her mind as to who she would want to appoint as executors. In relation to funds held in bank accounts, the file note records:
But once again, after a lot of roundabout talking by Jenny she was unable to give definitive instructions on who should receive the bank account monies.
[41] It is apparent from the file note that Ms Martin was unsure about certain things. However, the file note continues:
Jenny was very clear however that the house is to go to Bob and said that that is set in stone (or phrase to that effect). She said Bob had looked after her.
Jenny said her sister was coming to see her on Friday and that she might talk to her about her will.
[42]The file note then states:
It was at this stage that I became concerned about Jenny’s lack of ability to make decisions about her will instructions and I made an excuse that I would go and prepare a draft for her to take to her sister to talk about.
I went to see [my supervising partner] and said that I do not feel she has the mental capacity to make a will and that she should be seen by a medial [sic] practitioner. [The partner’s] comment was that sure If Jenny had children that we would do that, but in this case she doesn’t, and we should just work to get Jenny to sign a will. I explained to [my supervising partner] that Jenny would be talking to her sister tomorrow – [my supervising partner] suggested that Jenny bring her sister in to talk about the will.
(emphasis added)
[43] The file note records that Mr McGinness was subsequently invited into the meeting room and the legal executive told him that Ms Martin had been unable to recall her instructions as to executors or her share of the rental property.
[44] After further discussion Ms Martin agreed that Mr McGinness and her sister should be executors. Mr McGinness spoke to Ms Martin about the rental property suggesting it should go to Mrs Endean and then to Michael, Mrs Endean’s son, after Mrs Endean’s death. Ms Martin agreed to that.
[45]The file note continues:
Bob then said to Jenny that she had to decide who got the bank account money and that he couldn’t influence here [sic] about that. Jenny’s thinking seemed to turn to giving it to family members, but she had obviously [sic] difficulty in recalling and writing down names – she said that she can’t do that now and would do it at home.
[46] Ms Martin signed her will on 1 August 2018 in the presence of Mr McGinness, the legal executive and a legal secretary. The latter two witnessed the will. The legal executive’s file note of 2 August 2018 states:
I meet [sic] with Jenny and Bob on the 1st of August 2018.
I read out Jenny’s will very slowly and clearly and after each item I looked at her and she gestured to me that she understood. Jenny appeared to me during this meeting to be very coherent and appeared that she understood the contents of her will.
[47] At no stage was a medical opinion sought by the law firm in relation to Ms Martin’s testamentary capacity.
Medical events after the signing of the 2018 will
[48] Hospice involvement was initiated on 25 July 2018 with a face to face review on 9 August 2018. The file note for 9 August 2018 includes the following:
Jenny is reported by Bob to have early onset dementia, and Jenny did appear to be forgetful and lose her train of thought during our conversation.
[49]On 13 September 2018 the record of a home visit includes:
During the visit today Jenny only had a few moments of confusion/short-term memory loss. Bob wanted to sign the hospice consent form today. Bob states he never leaves Jenny along [sic] except on Fridays when Linda comes to shower and have lunch with Jenny.
[50]In the Hospice care plan the issue of “confusion” is noted.
[51] Ms Martin deteriorated rapidly and on 27 October 2018 an Ambulance Care Summary notes the presenting complaint as “terminal lung cancer, shortness of breath”. The primary clinical impression was noted as “dementia”.
[52] In the North Shore Hospital General Medicine Admission note on the same day it states: “Has Alzheimer’s disease – forgets about lung cancer”.
[53] Ms Martin died on 28 October 2018. The medical certificate for cause of death stated “Metastatic lung cancer. Other significant conditions: Alzheimer’s disease”.
Dr Casey’s opinion
[54] Dr Casey’s opinion is that, on the “grounds of probability”, Ms Martin lacked testamentary capacity at and around the signing of the second will of 1 August 2018. In support of that opinion the matters she refers to include the following:
(a)During the month of July 2018, when the will was being drafted, there is evidence that Ms Martin did not recall she had already made a will and that the process was actually a revision of a previous will. On the other hand Ms Martin knew the contents of her estate. She knew that she owned Welland Place and that she owned another property with her
sister, Mrs Endean. There is no record that Ms Martin knew the broad value of her estate;
(b)Ms Martin knew that she had no natural beneficiary but there is evidence that she had impairment in autobiographical memory and struggled to recall the names of family members. It is not evident from the legal file that Ms Martin understood who may have a claim on her estate. She was unable to demonstrate an understanding of the new will and appreciate the impact of the change in the distribution of the estate;
(c)The lack of recall of the previous will, the limited appreciation of her estate, the impairment in autobiographical memory and the inability to appreciate changes in the distribution of the estate, are all matters indicative of a lack of testamentary capacity. Dr Casey refers to the concern on the part of the legal executive about Ms Martin’s testamentary capacity and the legal executive’s suggestion that a medical assessment be performed;
(d)At the time of the actual signing of the will on 1 August 2018, the legal executive’s evidence is that the deceased gestured her understanding of the contents of the will. However, Ms Martin did not read the will herself, reiterate the will in her own words or verbalise that she appreciated the rationale and consequences of her decision-making;
(e)There is evidence that Ms Martin initially understood the implications of the diagnosis of the dementia. However, by 2018, evidence in the medical records indicates that her comprehension and appreciation of her circumstances was impaired. She did not appear to grasp the rapidly terminal nature of her condition. She also appeared to devolve her decision-making to others. The consent to Hospice care and the contact with health professionals was handled by Mr McGinness as was the driving, finances and general activities of daily living;
(f)Dr Casey acknowledges that capacity to decide is task-specific, situation specific and time specific. Individuals may retain the capacity to decide in one domain and not in others. Individuals are also entitled to change their minds. She says the diagnosis of dementia does not preclude the capacity to decide, although dementia is a disorder of the mind. The cognitive testing in March 2017 established that there were deficits in memory and frontal-executive dysfunction; the higher cognitive faculties which are required to be relatively intact in the capacity to decide; by July-August 2018 there is clinical evidence that the cognitive impairment had progressed. There was no repeat assessment of the cognitive function, yet consistent with the course of the illness, the dementia would then have been of a moderate degree. Ms Martin had a relative preservation of language and may have minimised or covered up her deficits. She had the ability to communicate choices, yet there were deficits in the ability to understand, retain and manipulate information. These deficits were evident in the meetings with the legal executive on both 17 and 26 July 2018;
(g)Dr Casey refers to the legal executive’s file note that on the day of signing the will Ms Martin was reported to be “very coherent”. Dr Casey says the question of whether “lucid intervals” and dementia truly reflect an improvement in cognition has been questioned in the medical literature. She says the concept of “good days and bad days” appears to be more a reflection of the caregiver’s perspective, influenced by behaviour rather than an objective measure of cognition fluctuations. The objective measures of fluctuations are in fact extremely short in duration, often in the order of seconds or minutes. Such short-term changes in mental state would not allow a testator to appreciate all of the factors needed to execute a valid will, even if a state of true lucidity was ever reached. Therefore it should not be assumed that a “good day” means that testamentary capacity was achieved; and
(h)On 1 August 2018 there was not the necessary probing and evaluation of Ms Martin’s ability to meet the specific Banks v Goodfellow test for testamentary capacity. There is no evidence that Ms Martin had the requisite mental capacity to understand and make a sound assessment of the issues and circumstances so as to leave her assets in specific proportion, for reasons that are clear, rational and consistent.
Testamentary capacity – legal principles
[55] The principles relating to the assessment of testamentary capacity are well- settled. They were set out by the Court of Appeal in Woodward v Smith5 and repeated by the Court of Appeal in Loosley v Powell.6 In both cases the Court restated the principles laid down in the often-cited judgment of Banks v Goodfellow.7 Those principles, as restated by the Court in Woodward v Smith, are:8
(1)Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.
(2)It is essential to the exercise of such a power that a testator:
[i]understands the nature of the act and its effects; and also the extent of the property of which he is disposing;
[ii]is able to comprehend and appreciate the claims to which he ought to give effect;
[iii]be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
(3)Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But
[i]though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand
5 Woodward v Smith [2009] NZCA 215.
6 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618.
7 Banks v Goodfellow (1870) LR 5 QB 549.
8 At [19].
and appreciate the testamentary act in its different bearings, the power to make a will remains.
[ii]It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.
(4)It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
(5)In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
(6)A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
(7)Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all;
(8)Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.
(9)But if that standard is not met, he will lack capacity.
[56] The statements from Banks v Goodfellow are to be treated as guiding propositions rather than as a formula.9
[57] The Court of Appeal in Loosely referred to the relevant onus and standard of proof in a testamentary capacity case citing the following from Bishop v O’Dea:10
[3] In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity.
9 Loosley v Powell, above n 6, at [19].
10 At [20]; Bishop v O’Dea (1999) 18 FRNZ 492 (CA).
[4] If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have testamentary capacity rests on those who seek probate of the will.
[5] That onus must be discharged on the balance of probabilities. Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.
[58] The Court of Appeal in Loosley also referred to Nijsee v Squires11 where it was said:12
… the matter cannot be left finely balanced … The Judge must be able to find that the reasonable inference relating to testamentary capacity can and should be drawn, otherwise the attempt to propound the will must fail.
Discussion
[59] It is necessary to consider Ms Martin’s capacity on 1 August 2018 when she signed the will. This is the day, subject to the rule in Parker v Felgate,13 when she must have had testamentary capacity in order for the will of that date to be valid.
[60] The necessary context for that consideration is Ms Martin’s medical history and presentation up to that date. In short, she was diagnosed with Alzheimer’s disease in March 2017. In the same month her cardiologist recorded “significant cognitive dysfunction”. There is clinical evidence that by July/August 2018 the cognitive impairment had progressed. Dr Casey’s opinion is the dementia would then have been moderate (reflecting the progressive nature of the disease).
[61] There were deficits in her ability to understand, retain and manipulate information. This was demonstrated by Ms Martin in her meeting with the legal executive on 26 July 2018. The law firm did not obtain a copy of Ms Martin’s previous will nor did they contact her sister who held the enduring power of attorney. Consequently, on that date Ms Martin was not able to demonstrate an understanding of the changes made in the 2018 will, nor could she appreciate the impact of the changes in the distribution of her estate from the 1994 will. The legal executive
11 Loosley v Powell, above n 6, at [21].
12 Nijsse v Squires CA53/04, 15 December 2004 at [12].
13 Parker v Felgate (1883) 8 PD 171 at 173-174. The rule (which is not relied on in this case) is that if, when instructions were given by a will-maker, that will-maker had testamentary capacity, the will can be valid even though that testamentary capacity had been lost by the time of execution.
formed the view that Ms Martin did not have mental capacity to make a will and that she should be seen by a medical practitioner. Her concerns were brushed aside by her supervising partner (who was not the same partner Mr McGinness had instructed).
[62] On 1 August 2018, Ms Martin did not verbalise any understanding of the contents of her will before signing it. She simply gestured to the legal executive after each item was read to her. The legal executive took from those gestures that Ms Martin understood the will and she described her as very coherent on that day. However, there was no inquiry as to whether Ms Martin understood the changes between her 1994 will, which had not been obtained, and the new 2018 will. Such an inquiry would include whether she understood changes to the beneficiaries under her new will.
[63] Having regard to the progressive nature of the dementia, the legal executive’s assessment of lack of testamentary capacity on 26 July 2018 when she took instructions for the will, and the lack of questioning by the legal executive on 1 August 2018, I consider it has not been shown that all necessary parts of the Banks v Goodfellow test for testamentary capacity on 1 August 2018 have been established. The evidence displaces the presumption of testamentary capacity on 1 August 2018. There is no party arguing that the evidence satisfies the test for testamentary capacity. As is apparent, the reverse is the case. Dr Casey holds the opinion that on the balance of probabilities14 Ms Martin lacked testamentary capacity at and around the signing of the 1 August 2018 will.
[64] In Woodward, the Court of Appeal noted that the opinions of expert witnesses who did not know the will-maker, and who make their assessments after her death, must be treated with caution. They are trying to assess mental health from documentary evidence, and the observations of others, without the benefit of knowing or meeting the will-maker.15 However, in this case Dr Casey has specialised in geriatric psychiatry and has significant experience in that field. Her affidavit evidence was careful and detailed and contained a thorough review of the evidence and the medical files. I am persuaded by her evidence and accept her opinion.
14 Dr Casey uses the expression “on the grounds of probability” which I understand to mean on the balance of probabilities.
15 Woodward v Smith, above n 5, at [94].
[65] In conclusion, therefore, testamentary capacity has not been established at the time Ms Martin executed the 2018 will. I go further. Accepting Dr Casey’s opinion, I consider, on the balance of probabilities, that Ms Martin did not have testamentary capacity when she made her will on 1 August 2018.
Result/Orders
[66]I make the following orders as sought by Ms Andrews:
(a)Declaring that Ms Martin’s will of 1 August 2018 is invalid for lack of testamentary capacity; and
(b)Appointing Mr and Mrs Endean as joint administrators and executors of Ms Martin’s will of 9 March 1994.16
[67] As a consequence, Mr and Mrs Endean may apply for a grant of probate of Ms Martin’s 9 March 1994 will.
[68]There is no issue as to costs.
Gordon J
16 The making of this order brings to an end the order of this Court of 19 September 2019 appointing Mrs Endean temporary administrator of Ms Martin’s estate. That order was expressed to be until further order of the Court.
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