Estate of Cousins
[2021] NZHC 552
•18 February 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2020-409-000364
[2021] NZHC 552
UNDER Section 14 of the Wills Act 2007 IN THE MATTER
of an application by HELEN IRENE DAVIDSON for an order that a document be declared the valid Will of the deceased JANICE LEE COUSINS
Hearing: 1 February 2021 Appearances:
J C D Guest for Applicant R J Little for Respondent
Judgment:
18 February 2021
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 18 February 2021 at 4.00 pm pursuant to Rule 11.5
of the High Court Rules
Registrar/Deputy Registrar Date:
Re estate COUSINS [2021] NZHC 552 [18 February 2021]
Introduction
[1] The applicant, Helen Irene Davidson, (Ms Davidson) a lawyer practising in Dunedin, seeks a declaration pursuant to s 14 of the Wills Act 2007 (the Act) declaring a document to be the valid will of her deceased client Janice Lee Cousins (Jan).
[2] The document which Ms Davidson seeks to have validated as Jan’s will is a draft will prepared by her. Ms Davidson brings her application on the basis that Jan had the testamentary capacity to make a will and had an immediate and unconditional intention that her estate should be distributed in the manner provided for in the draft will.
[3] The respondents, who are members of Jan’s family, say that there is a complete absence of evidence establishing that the draft represents Jan’s actual testamentary intentions, and equally fundamentally that she lacked testamentary capacity to make a will in any event.
[4] An additional factor in this case is that the respondents raise serious questions concerning Ms Davidson’s legal craft and her propriety. They lack complete confidence that the draft will accurately reflects Jan’s instructions. They say it is in whole or in part a fabrication by Ms Davidson.
Background
[5] Jan died at Christchurch, New Zealand on or about 2 October 2019. Jan did not have a valid will when she died.
[6]Jan was survived by two brothers, a sister, nephews and a niece.
[7] Jan and her siblings grew up in Dunedin and moved to Nelson when Jan was about 15. Soon thereafter Jan left home to study psychotherapy. Eventually she moved to London and practised as a professionally qualified child psychotherapist.
[8] Towards the end of her career she developed Parkinson’s disease. She ceased practice and returned to New Zealand in 2013. She stayed with her brother, Blair, in Bluff for two or three months immediately following her return and then settled in Dunedin.
[9] She moved from Dunedin to an “over 55’s village” (the village) in Christchurch only a matter of weeks before her unexpected death.
[10] Jan engaged Ms Davidson as her solicitor in respect of her conveyancing and personal affairs in 2017. In 2019 Ms Davidson attended to the conveyancing on the sale of Jan’s home in Dunedin and the purchase of her unit at the village in Christchurch. Jan and Ms Davidson dealt with one another on these matters on many occasions throughout 2019.
[11] In or around March 2019 Ms Davidson and Jan commenced discussions about the need for Jan to consider signing an enduring power of attorney and giving Ms Davidson her instructions on a will.
[12] The first draft will was prepared based on Jan’s initial instructions. Under that draft will she left her entire estate to two charities, Médecins Sans Frontières and Amnesty International (the charities) and she made no provision for her surviving family members.
[13] Between March 2019 and June 2019 Ms Davidson moved law firms. She did not take her file concerning Jan’s will with her. In or around June 2019 an enduring power of attorney was prepared and executed by Jan. Jan appointed Ms Davidson her attorney.
[14] In or around July/August 2019 Jan renewed her instructions concerning the draft will. After further discussions with Ms Davidson Jan changed her instructions and told Ms Davidson to make provision for her family in the sum of $100,000. The residue was to be divided between the charities.
[15] On 17 September 2019 Ms Davidson met with Jan at her home in Dunedin. Jan read the draft will and confirmed her instructions. It was agreed between Jan and Ms Davidson that Ms Davidson would attend upon Jan at her new home in Christchurch to have the will executed. This was to have occurred on 24 October 2019.
The application
[16] In summary, the application to validate the draft will prepared by Ms Davidson is based on it being a written record of Jan’s testamentary intentions communicated by her to Ms Davidson in the course of Ms Davidson managing Jan’s personal affairs, including the preparation and execution of an enduring power of attorney and conveyancing on the sale and purchase of realty, and against the background of an agreement between Jan and Ms Davidson as to when and how the draft will would be formally executed.
[17]Section 14 of the Act provides as follows:
14 High Court may declare will valid
(1) This section applies to a document that
(a)appears to be a will; and
(b)does not comply with section 11; and
(c)came into existence in or out of New Zealand.
(2) The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
(3) The court may consider
(a)the document; and
(b)evidence on the signing and witnessing of the document; and
(c)evidence on the deceased person’s testamentary intentions; and
(d)evidence of statements made by the deceased person.
[18] The Court is entitled to take a robust approach to the application of s 14.1 In making the evaluation required by the section, the Court may consider both the document itself and evidence of statements made by the deceased person regarding their testamentary intentions.2
[19] The onus is on Ms Davidson to prove on the balance of probabilities that the document tendered for validation appears to be a will and accurately expresses Jan’s testamentary intentions.3
Respondent’s concerns about Ms Davidson’s legal craft and her propriety
[20] Ms Davidson acknowledged in cross-examination that she had been censured in 2012 by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal for having backdated a will. She said she had taken such action because:
… that was the result that the family wanted to achieve, and it was very much at the last minute and it was the stupidest thing, one of the stupidest things I’ve ever done and I am not going to repeat it.
[21] Ms Davidson also acknowledged that her legal craft had been called into question in the case of Wilson & Ors v Davidson.4 In that case Ms Davidson had advised the testatrix when she made a will. In the will the testatrix made a gift of “my house unit at Chatsford to Robert Rutter”.
[22] The testatrix’s nephews and nieces in that case contended the gift to Mr Rutter failed because, under the testatrix’s occupation right agreement with a retirement company, her rights of occupation of her unit were personal to her and could not be transferred. Ms Davidson applied for correction of the will, seeking the replacement of the words “my house unit at Chatsford” with the words “my occupation rights in my house unit at Chatsford including any proceeds therefrom”. Nation J corrected the will because he was satisfied the testatrix wanted Mr Rutter to have the benefit of the unit.
1 Re Estate of Feron [2012] NZHC 44, [2012] NZLR551 at [11] applying Re Estate of Murray HC Masterton CIV-2011-435-000178, 20 December 2011.
2 Wills Act, s 14(3).
3 Re Estate of Beaumont [2013] NZHC 2719 at [11] – [13].
4 Wilson & Ors v Davidson [2016] NZHC 1238.
[23]In her originating application in this case Ms Davidson said:
2.6 the consent of all persons who may be potentially affected by the granting of the order have consented to this application.
[24]When cross-examined by Mr Little about this she said:
Mr Little, if I remember rightly you, your clients had applied for letters of administration. I had filed a caveat and the caveat had to be sustained or not sustained. One way or the other your people could be assumed to have approved with my then application.
[25] The statement in 2.6 of the originating application is not factually correct on its face. I do not consider Ms Davidson was dissembling when she wrote that statement. I accept Ms Davidson believed that others supported her bringing this application so as to resolve the question of whether or not she could sustain the caveat she had lodged. I do not think she was being dishonest, but rather that she misapprehended the situation and hence the inaccuracy of the statement.
[26] I must also observe that Ms Davidson’s general approach to recording matters is unusual. Her file notes are incomplete. Ms Davidson said in evidence that she does not always record all instructions taken over time from clients, particularly:
… not if it is a repeat conversation or I am on [my] feet getting something witnessed.
She relied a lot on her memory for recollecting the details of the conversations she had had with Jan.
[27] Ms Davidson’s notes are, when recorded, extremely brief. Her notes concerning Jan’s will instructions were intermingled with her file notes concerning Jan’s personal and conveyancing files in what can only be described as a somewhat chaotic style.
[28] In summary, Ms Davidson has on one occasion been censured for falling below the requisite professional standards required of a lawyer and conveyancer, and on other occasions she has had a somewhat unconventional style of practice and an imprecise way of expressing herself. It is with these observations in mind and with appropriate caution arising that I approach the necessary evaluative assessment in this case.
Does the draft will reliably express Jan’s testamentary intentions?
[29] Ms Davidson’s case is that, but for the allegation that Jan did not have testamentary capacity, this Court would inevitably declare the draft to be a valid will.
[30] Mr Little, for the respondents, submitted that the evidence falls well below the standard required by the Court as cogent evidence of the deceased’s intentions. They say there is no extraneous evidence that Jan:
(a)wished to make a will and to appoint Ms Davidson as the executrix and trustee and enable her to charge the estate for her professional services;
(b)knew what her estate consisted of or who the potential claimants were;
(c)wished to give exactly $100,000.00 to her family and leave the residue to charities; and
(d)wished to be cremated and have her ashes scattered over Lake Wanaka.
[31] Finally, Mr Little submitted that Jan had never confirmed the content of the draft will as her final testamentary wishes.
The Draft Will
[32] Exception was taken by Mr Little to the document being described as a draft will. It is difficult to conceive, in these particular circumstances, of it being described any differently. By virtue of the professional relationship between Jan and Ms Davidson, the nature of their dealings with one another, the subject matter of those dealings and the form and appearance of the document it is precisely what it purports to be, namely a draft will.
[33] The draft will is on its face unremarkable. First, it contains the usual revocation clause. Second, it appoints Ms Davidson as executrix and trustee of Jan’s estate. It is of course common for testators or testatrices to appoint a solicitor in this role,
especially when there are no obvious contenders amongst family and friends considered by the deceased to be able and willing to take on the role.
[34] Also, unremarkably, the draft will provides that the executrix and trustee may charge the estate for any professional services in connection with the estate. The submission was made that this clause benefits Ms Davidson and that is what is motivating her to bring this application. I reject that notion outright. Nothing in my mind gives me pause as to the propriety or otherwise of such a clause and its implications in this case. Nor is there anything which gives me pause for thought about Ms Davidson’s motivation in seeking to validate the will.
[35]The draft will also has the usual clauses for the payment of debts and taxes.
[36] The draft will contains the usual clause concerning disposal of the deceased’s body, and in this case Jan wished to be cremated and have her ashes scattered over Lake Wanaka.
[37]Read as a whole, the document appears to be a will.
[38] The truly controversial clauses in this case are first a gift of $100,000.00 to be divided equally between Jan’s niece, nephews, brothers and sister. The second is the clause providing the residue to be divided equally between the charities.
How the draft will was created
[39] Ms Davidson said in evidence that taking Jan’s instructions for the draft will was a protracted affair for two primary reasons. First, because Jan refused to contemplate death and therefore didn’t like talking about it. Ms Davidson did not want to press Jan unduly as she discerned it exacerbated Jan’s feelings of vulnerability on account of her Parkinson’s disease. Second, she said she had trouble getting the requisite information from Jan, and she wanted to give Jan time to contemplate her advice that there was a risk that her will would be contested if she left her entire estate to charity without any provision for family members.
[40] At the outset of their engagement about the will Jan told Ms Davidson that she wished to leave her entire estate to the charities. A draft will was soon thereafter prepared on this basis.
[41] Later, Ms Davidson advised Jan again that her will may be subject to attack should she leave her entire estate to charities. As a result, Jan instructed Ms Davidson to amend the draft will to include provision for the family to receive $100,000.00. Ms Davidson recalled writing $100,000.00 on the typed draft will to reflect the change.
[42]She described the process in evidence:
… but at some point, probably when I was working in the last firm that she was convinced by me to put the family in, then there would have been an Asterix in the corner and I would have written at that level, at that point in the will, that there was a bequest to the family of $100,000. And I recall saying to her: “Anymore?” and she said: “No more”, and I said: “That’s not going to be very much,” I thought here was more nephews and nieces than there actually are, I said: “that’s not going to be very much.” She said, “well, a token,” is what it, is what she intended at that point.
[43] Ms Davidson then moved law firms and the draft will (being the prepared will with the handwritten notation made by Ms Davidson) remained with her former firm. Ms Davidson said in evidence that she thought it had probably been shredded. Suffice to say that she was unable to produce the initial draft will that had her handwritten amendment and was not able to produce any written file note about this change.
[44] Ms Davidson has some file notes of iterative conversations she had with Jan concerning her will after she moved to her present firm. These recorded that there was a conversation between them on 13 May 2019. The file note records inter alia:
needs an executor (can’t find one).
[45] On 17 May 2019 there is an extensive file note covering the reasons for Jan’s decision not to leave her estate to her family and her perception that they had wronged her. It records the lack of contact she had had with some family members. It is also apparent that on this occasion Ms Davidson had enquired if Jan would like to appoint her nephew Mr Philip Cousins as her executor. Ms Davidson recorded Jan’s instructions in this respect as “not ok”. It also contains the notation:
Explained role of Executors, role of Attorney, history of straight PoA
[46] On 11 June 2019 Ms Davidson and Jan had a telephone conversation. The file note recording that conversation is as follows:
Me to re EPoA – discuss Will reqd now
27 June 2019 apptment noon?
[47] The file note produced marking the commencement of the instructions at Ms Davidson’s new firm is sparse, but indicates it was opened on 26 June 2019 and that Jan instructed Ms Davidson to draft an enduring power of attorney appointing Ms Davidson as her attorney. It also records Jan was intending to give Ms Davidson instructions as to a will.
[48] Ms Davidson and Jan met on 10 July 2019. On that occasion Ms Davidson elicited details about Jan’s siblings. They also discussed Jan’s intention to go to Christchurch to live in the village. Jan also reiterated to Ms Davidson that she wanted to make provision for the charities.
[49] Two weeks later, on 25 July 2019, Ms Davidson took details of Jan’s assets in the United Kingdom and further details about the family. Jan renewed her instructions to provide the bulk of her estate to the charities. Jan also informed Ms Davidson that she had made an offer on a unit in the village. It is evident from the file that they also discussed the sale of Jan’s Dunedin home.
[50] A month later, on 26 August 2019, Jan provided Ms Davidson with her reasons for not wanting to make greater provision for her family. Jan said that Phillip and his friend no longer came to visit her. She said that while her brother Blair had initially kept in touch with her, he had since become ambivalent towards her. Jan said that her sister Robyn thought she was “doolally” and that was no basis on which to maintain a relationship. Finally, Jan told Ms Davidson that there had been some adverse interference by a family friend called June Birchall.
[51] During this consultation Ms Davidson sought more information about family members’ names and details concerning Jan’s taxation affairs.
[52] On 17 September 2019 Ms Davidson went to Jan’s home in Dunedin to make final arrangements concerning the sale of the property. Jan confirmed her instructions concerning the draft will. Ms Davidson said she did not want to press Jan on this occasion to sign the will as she had too much on her plate over the move to Christchurch.
[53]Under cross-examination by Mr Little, Ms Davidson said:
“Jan, we need to sign your will and – but I am coming up in a few weeks time anyway I’m scheduled to do that, so why don’t I drop in and see you in your new place,” and she was very happy about that, that was a good excuse to drop in and by that stage she thought she’ll have met enough people that she could find two witnesses which was struggling to find in Dunedin although I could have obviously found my office staff, but it was a good reason for us to catch up. And I guess I’m painting a picture which is, which is that I liked Jan and respected Jan more than I respected most of my clients. She was – she was such an amazing person.
And later on:
I had thoughts about taking her on the launch to where my home in Diamond Harbour is as well, so it went that far.
[54] After Jan had successfully moved to Christchurch, she and Ms Davidson had another telephone conversation. Jan told Ms Davidson that she would have no difficulty finding two fellow residents in the village to witness her will when Ms Davidson visited her.
Discussion
[55] I am satisfied the document at issue has all the hallmarks in form and content of a will. It therefore appears to be a will as is required by s 14 (1) (a) of the Act. Its contents are quite unremarkable.
[56] The draft will obviously does not comply with s 11 because it was never executed, although there is clear evidence that Jan intended to execute it when Ms Davidson visited in Christchurch for that precise purpose.
[57] The draft will also came into existence in New Zealand as required by s 14(1)(c).
[58] I have set out in some detail how the draft will came to be created. I now wish to add some comments on the nature of the relationship between Ms Davidson and Jan as it is of real significance to the outcome of my evaluative assessment.
[59] Even though the relationship between Ms Davidson and Jan commenced in a professional context it appears they became very friendly. It is also clear that Ms Davidson had a very caring and pastoral approach to Jan and Jan’s affairs. I was struck by the affection Ms Davidson had for Jan, and the moving account she gave in her viva voce evidence of the care and concern she had for Jan whom she described as a remarkable person. Their relationship was in the nature of a friendship, as well as being professional. That is no doubt why Jan appointed Ms Davidson her attorney charged with dealing with her most intimate and critical affairs. There is no doubt in my mind that, as a result of Ms Davidson’s care and concern for Jan, Jan reposed considerable trust and confidence in her.
[60] The respondents were critical of the length of time Ms Davidson took to take her instructions. I am not. It is clear Ms Davidson recognised that Jan was feeling vulnerable and frightened. For instance, it was Ms Davidson Jan turned to when the police advised her she could no longer hold or obtain a motor vehicle licence. In taking matters slowly and sensitively with Jan she managed to secure Jan’s future with the enduring power of attorney and to get Jan’s firm instructions on the final form of her will. She also managed to help Jan understand that some provision should be made for her family, when Jan had fairly entrenched views that they did not deserve recognition in her will.
[61] Although the file notes are incomplete and scant, I am satisfied that over a concentrated period of time Ms Davidson elicited the necessary information from Jan on which to make the draft will, and that all the core elements necessary in a will are contained in the draft will. As to the incompleteness of the file notes, I am satisfied that Ms Davidson does have a good memory, was able to “fill in the blanks” and was
not shaken under cross-examination as to her recollection of her many discussions with Jan.
[62] Jan had lived overseas for a long period. Her relationship with her siblings, niece and nephew were clearly affected as a result. Her relationship with them was also clearly affected by her perception of their reaction to her Parkinson’s diagnosis. Jan did not have any partner or children to provide for. Her estate had been created entirely by her own efforts. She was an independent freethinker. The charities she chose to benefit in her will are well-established entities, known internationally for their integrity and value to the global community. The respondents are not persons who are automatically entitled to be claimants under s 3 of the Family Protection Act 1955. There are therefore clear and cogent reasons why Jan instructed Ms Davidson to draft the will to make some symbolic provision for her family and to leave the bulk of her estate to the charities.
[63] In summary, having regard to the draft will itself, the evidence as to why the draft will was not signed or witnessed, the evidence as to Jan’s testamentary intentions, the statements made by Jan to Ms Davidson in her capacity as Jan’s lawyer and the pastoral care and concern demonstrated by Ms Davidson over and above the professional relationship, I am satisfied on the balance of probabilities that the draft will appears to be a will and accurately expresses Jan’s testamentary intentions.
[64] As a result of those conclusions I do not accept the respondents’ case that Ms Davidson was improperly motivated to bring the application, nor that she has fabricated some or all of the draft will.
Testamentary capacity
[65] 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
5 Woodward v Smith [2009] NZCA 215.
6 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618.
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 organisation, 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 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.
7 Banks v Goodfellow (1870) LR 5 QB 549.
8 At [19].
(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.
[66] The statements from Banks v Goodfellow are to be treated as guiding propositions rather than as a formula.9
[67] 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.
[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.
[68] There is, accordingly, an evidential onus on the respondent to displace the presumption of testamentary capacity on the date the will was made.11 If that onus is discharged then it falls on Ms Davidson to satisfy the Court on the balance of probabilities that Jan had testamentary capacity.
9 Loosley v Powell, above n 5 at [19].
10 At [20]; Bishop v O’Dea (1999) 18 FRNZ 492 (CA).
11 Loosley v Powell, above n 5 at [102].
Discussion
[69] The respondents say that throughout the relevant time (mid to late 2019) Jan lacked testamentary capacity “due to a paranoia she had which prevented her from making rational decisions about her and her family”. It is significant that the respondents have not produced any independent medical evidence on that point. I shall now set out the evidence on which they rely.
[70] Claire Riviere, a close friend of Jan’s, noted a significant change in her personality and demeanour as early as 2011. She described Jan as accusing her of colluding with and discrediting her to her work colleagues. I note this was around the time Jan was diagnosed with Parkinson’s disease. The Parkinson’s was certainly physically debilitating. There is no evidence that she was suffering from a disease of the mind that amounted to persecutory delusions at this time.
[71] Jan’s sister Robyn and her brother Gavin filed affidavits containing email exchanges they had with Jan in early 2016. It is apparent that Jan thought her sister had been meddling in her affairs. It is not possible to identify what the meddling was thought to have consisted of. It is also clear that Jan thought she had been defamed by Robyn. Gavin and his wife were accused by Jan of not being supportive of Jan in the face of Robyn’s alleged defamation of Jan. In the course of these email exchanges Robyn (who has a background in mental health) offered to travel to Dunedin and assist Jan in getting some medical advice about the potential side effects of Parkinson’s disease including cognitive disturbances and paranoid ideation. Jan was offended by this. The offer was not taken up and Robyn and Jan remained estranged at the time of Jan’s death.
[72] I should note that it was not a long bow for Jan to draw from Robyn’s e mail that Robyn thought the disease may have reached the stage that Jan should go into a rest home. In that case Jan was plainly not delusional.
[73] Jan’s brother, Blair Cousins, filed an affidavit supporting those of Robyn and Gavin. He had had limited contact with Jan shortly before her death, but they remained on good terms.
[74] Jan’s nephew, Philip Cousins, also filed an affidavit saying he had a good relationship with Jan and talked to her every three or four weeks for about 20 minutes. He also observed that Jan had a belief that “others” were trying to get her into a rest home.
[75] It is clear, rightly or wrongly, Jan did not feel supported by her family in the later years of her life. This may have been an unfair characterisation of their efforts. She seems to have formed the belief that Robyn was not only unsupportive but actively acting against her. This appears to have some connection with her belief that others were trying to put her into a rest home. Given her medical condition, the prospect of being put into a rest home against her will would have been galling at best and deeply distressing at worst. The fact that these intentions were well intentioned is immaterial; Jan felt distressed by them. That is not surprising when Jan would have had to confront questions about her mortality and ability to continue to live independently after a lifetime of high -functioning independent living.
[76] I acknowledge Robyn had plainly formed the view that Jan’s disease had progressed to cognitive disorder. However, her evidence is circumstantial, and she does not have the relevant expertise to make that determination. The mere fact that Jan had Parkinson’s disease, in and of itself, is not enough. Objective evidence that can be tied to the relevant point in time is required to raise capacity as a tenable issue. The only medical evidence provided to the Court was the report written for the coroner by Jan’s medical practitioner, Dr Williams, and the review of Jan’s medical file by Dr McIllraith, a colleague of Dr Williams. The respondents submitted this evidence was hearsay and inadmissible, no doubt because it did not support their case. The evidence of Dr Williams was her sworn statement for the coroner’s inquest into Jan’s death. Dr McIllraith’s evidence was a review of Jan’s existing medical notes.
[77] Even if the respondents could have raised testamentary capacity as a tenable issue, I have the evidence of Ms Davidson, a professional charged with the duty to satisfy herself that there are no questions concerning her client’s testamentary capacity.
[78] Ms Davidson has been a practising lawyer since 1985. She is a seasoned practitioner in all aspects of the law dealing with people’s personal affairs, property
and deceased estates. She has had significant experience of clients with marginal capacity and with no capacity at all. She has made applications under the Protection of Personal and Property Rights Act 1988 (PPRA). She has also practised in the mental health area. From all of this, I accept she has had long experience of people with disabilities, including a lack of testamentary capacity. She is also aware of her professional responsibilities in taking proceedings under the PPRA when a client lacks testamentary capacity in relation to their own affairs. However, as I have already said, Ms Davidson has some imprudent methods of recording instructions.
[79]Her evidence is that:
On not one of my dealings with Jan was any concern raised in my mind about Jan’s mental health. I did not see signs of delusional paranoia or any other psychological disease.
[80] Ms Davidson did question Jan about the reasons behind her wishing to give the majority of her estate to charity and not to family, and Jan confirmed that she did not think her family were supportive of her following on from her diagnosis. She told Ms Davidson that Robyn thought she was “doolally”. Ms Davidson said Jan was offended by this for obvious reasons. Ms Davidson observed generally that although Parkinson’s was debilitating Jan physically, her intellect remained as sharp as a tack.
[81] In summary, the respondents did not discharge the evidential onus on them to raise Jan’s testamentary capacity as a tenable issue. Even if they had, Ms Davidson’s evidence would have led me to conclude on the balance of probabilities that Jan had testamentary capacity.
Conclusion
[82] As observed by Courtenay J in Balchin v Hall, where a Court is satisfied that the document in issue represents the deceased person’s genuine intentions it can ordinarily be expected that a validating order will be made.12 Where a Court has concluded that the document reflects the deceased’s testamentary intentions there would have to be exceptional reasons to not give effect to the deceased’s wishes. No such reasons exist in this case.
12 Balchin v Hall [2016] NZHC 837 at [11].
Order
[83] I make an order under s 14 of the Act declaring the document (being the draft will prepared by Ms Davidson) appended to her affidavit of 17 March 2020 to be the valid last will of Janice Lee Cousins.
Costs
[84] The issue of costs is reserved. In the event counsel cannot agree on costs each is to file a memorandum of no more than five pages within 20 working days of the delivery of this judgment and costs will be dealt with by me on the papers.
Doogue J
Solicitors:
Klinkert Law, Dunedin
Eagles Eagles & Redpath, Invercargill
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