Estate of Dobson

[2025] NZHC 1106

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-308

[2025] NZHC 1106

UNDER

the Administration Act 1969

IN THE MATTER

of the estate of IAN DOUGLAS DOBSON

AND IN THE MATTER

of an application by LEE MICHAEL CHRISTOPHER ROBINSON and IAN

DOUGLAS KENNEDY as executors and trustees of the estate of IAN DOUGLAS DOBSON

Hearing:

On the Papers

Appearances:

R W Raymond KC and Y Park for Applicants J V Ormsby for J V Burnett (a person served)

J M McGuigan for S J and L A Dobson (persons served)
Y Park for the trustees of the Dobson Family Trust (persons served)

Judgment:

8 May 2025

JUDGMENT OF OSBORNE J

[1]    This proceeding concerns the estate of the late Ian Douglas Dobson who died on 16 October 2023. The executors under his last will dated 1 April 2022 (the Will) seek orders confirming the Will is proved in solemn form as a valid will and for probate to be issued.

[2]    Directions as to service were made by this Court to ensure all interested parties were served. Janice Burnett, who was a partner of Mr Dobson for an extended period, initially opposed the application, taking issue with Mr Dobson’s capacity at the time

Re the estate of IAN DOUGLAS DOBSON [2025] NZHC 1106 [8 May 2025]

he executed the Will. In the alternative, Miss Burnett brought counterclaims seeking further provision under the Family Protection Act 1955 and/or the Law Reform (Testamentary Promises) Act 1949. Other affected parties directed to be served also filed a defence.

[3]    Counsel requested a judicial settlement conference which was to be held on 13 March 2025. On 10 March 2025, counsel filed a joint memorandum advising that the parties had entered into a full and final settlement of the proceeding including of Miss Burnett’s counterclaims and all other issues connected to the proceeding.

[4]    Counsel recognised it remained for the Court to be satisfied that the Will should be proved in solemn form. The parties’ request is supported by the evidence filed by the plaintiffs as to Mr Dobson’s capacity.

The evidence of capacity

The medical evidence

[5]    Mr Dobson’s medical practitioner, Dr Derek Hann, had been Mr Dobson’s doctor since 2012. Dr Hann’s medical notes record he personally had no inkling of any mental incapacity or cognitive impairment prior to 2 March 2022. Dr Hann says he did not detect any cognitive issue in his engagements with Mr Dobson over the  10 years he saw Mr Dobson, which was on a fairly regular basis.

[6]    Dr Hann’s notes for 2 March 2022 record a consultation in his surgery and the notes refer to a “memory decline 6/12, nil safety concerns”. Dr Hann understands that was a reference to either Miss Burnett, who attended the consultation, or Mr Dobson expressing concerns about a decline in Mr Dobson’s memory over the past six of the last 12 months.

[7]    At that time  a mini cognitive examination was  carried out by  a nurse at     Dr Hann’s medical centre. This was a Mini-Addenbrooke’s cognitive examination New Zealand Version A 2020. Mr Dobson scored 10 out of 30, which Dr Hann characterises as low for someone of Mr Dobson’s age. However, Dr Hann

characterises the score  as  confirming  his  clinical  impression  at  the  time  that  Mr Dobson had a declining memory.

[8]    On 2 March 2022 Mr Dobson also had a CT scan which Dr Hann records was normal.

[9]    On 8 and 9 March 2022, Dr Hann’s notes record that Miss Burnett telephoned one of the nurses at the surgery to say she was concerned about Mr Dobson driving as he had gone the wrong way around a roundabout. Mr Dobson voluntarily elected to stop driving before any further assessment was carried out.

[10]   When Mr Dobson attended the surgery on 29 March 2022 for a physical ailment for which medication was prescribed, Dr Hann did not record any concern about his mental capacity.

[11]   Mr Dobson was admitted to hospital on 2 April 2022. The discharge summary refers to Mr Dobson presenting with confusion which Dr Hann characterises essentially as equivocal.

[12]   Dr Hann saw Mr Dobson again on 13 May 2022. Dr Hann’s notes recorded Mr Dobson was well. Again, there is no record of Dr Hann having any concern with capacity.

[13]   Accordingly, at around the time of the last Will (1 April 2022), Mr Dobson’s regular medical practitioner did not have concerns about his capacity.

[14]   Dr Hann, on 18 July 2022, signed certificates as to Mr Dobson’s mental capacity. Dr Hann certified Mr Dobson was mentally incapable. The certificate records the reason for his opinion was based on “clinical impression and investigations”.   He   specifically    noted    in    the    certificates:    “Dementia,  mini Addenbrookes 2/3/22 10/30”. Dr Hann, in his evidence, says his “clinical impression” (identified in the certificate) was based on the consultation on 2 March 2022 as that was the only time the issue of mental capacity was considered. Dr Hann says that was the first and last time it was raised with him.

[15]   It is clear from Dr Hann’s evidence as a whole that he distances himself from the certificate he completed, based on the 2 March consultation. Dr Hann refers to his primary records to state that, other than through the consultation on 2 March 2022, he did not feel he had cause specifically to assess Mr Dobson’s testamentary capacity around the time Mr Dobson executed the Will.

[16]   Expert evidence was also given by Dr Colin Peebles, a specialist in older persons’ mental health. Dr Peebles’ evidence complies with the code of conduct for expert witnesses. Dr Peebles sets out the comprehensive material upon which he based his opinion. Dr Peebles concludes it is more than likely that Mr Dobson was suffering from a dementia at the time he signed the Will on 1 April 2022. That said, in respect to the legal test for testamentary capacity (which Dr Peebles sets out), his opinion is, from the evidence provided, Mr Dobson most likely had capacity when he signed his Will on 1 April 2022.

Mr Dobson’s legal team

[17]   Lee Robinson is one of the executors and he acted for Mr Dobson from 2017. Mr Robinson is a very experienced Christchurch solicitor with nearly 50 years of experience.  He  has  acted  in  the  administration  of  estates  for  over  45 years.  Mr Robinson details the background to the meeting on the 1 April 2022 at  which  the Will was signed. Before the meeting, Mr Dobson had advised he wished to leave Miss Burnett a life interest in an apartment rather than a half share. Mr Robinson asked one of the firm’s solicitors to draft a will on that basis. Mr Robinson then met Mr Dobson at the firm’s offices.   Mr Robinson recounts that meeting when, with   Mr Dobson, he ran through the options of ownership and life interest. He outlined those on a whiteboard in the boardroom. He says there was considerable discussion at that meeting. Mr Dobson confirmed he would change his previous will to leave Miss Burnett a life interest rather than a half share. The drafted new Will was then signed. Mr Robinson was clear that Mr Dobson was certain in what he wanted and the reasons why he wanted to change his will.

[18]   Mr Robinson recounts that, after the meeting, he took Mr Dobson out for lunch at a golf club where Mr Dobson was relaxed and chatty in the company of about 10 of

his golfing friends. Mr Dobson conversed with the others and was relaxed and coherent. Mr Robinson had no concerns at all about Mr Dobson’s capacity on 1 April 2022.

[19] Mr Robinson explains that, on 18 July 2022, when Mr Dobson was going into rest home care he was prompted to request from Dr Hann the 18 July 2022 medical certificate referred to at [14] above. Mr Robinson confirms he had no concerns as to Mr Dobson’s capacity before that date.

[20]   Mr Robinson’s evidence  is  reinforced  by  Michael Vanner,  a  partner  in  Mr Robinson’s firm. Mr Vanner  attended  the  1 April 2022  boardroom  meeting. Mr Vanner confirms that Mr Robinson explained the difference between ownership and life interest on the whiteboard with the meeting taking about half-an-hour according to Mr Vanner’s time records. Mr Vanner says “[d]uring the meeting, nothing out of the ordinary stood out to me. [Mr Dobson] was his usual self— switched  on  and  pleasant”.  Mr Vanner  also  attended  the  lunch  described  by  Mr Robinson and confirms Mr Robinson’s account of that lunch.

[21]   Noel Kennard, a friend of Mr Dobson, also provided an affidavit. He drove Mr Dobson to the 1 April 2022 meeting and was present when Mr Dobson signed  the Will. He describes Mr Dobson during the meeting as being able to articulate the change he was making to the Will. He said Mr Dobson asked questions about the change. Mr Kennard’s evidence accords with Mr Robinson and Mr Vanner’s account of that meeting and subsequent lunch.

[22]   Cameron Melville, who at this time was an associate in Mr Robinson’s firm, also provided an affidavit. It was Mr Melville who prepared the draft will as described by Mr Robinson. Mr Melville attended the boardroom meeting and confirms the other witnesses’ accounts of how the meeting went. Mr Melville also attended the subsequent lunch. Mr Melville is confident that, if Mr Dobson had shown any signs as to being unsure as to why he was at the office or that he was confused, he        (Mr Melville) would have  been  concerned.  His  evidence  is  to  the  effect  that  Mr Dobson understood the changes he was making to the Will and why he was making them.

Discussion

[23]   Three experienced solicitors, two of whom are very experienced partners in Mr Dobson’s law firm, all confirm as factual witnesses Mr Dobson appeared to understand the decisions he was making when executing his Will on 1 April 2022. That Mr Robinson took Mr Dobson through the differences between the options of ownership and a life interest  on  a  whiteboard  and  that  those  present could  see Mr Dobson was following the discussion is telling.

[24]   The evidence of Dr Peebles gives support to the impression the factual witnesses had.

[25]   The certificate completed by Dr Hann on 18 July 2022 as to Mr Dobson being mentally incapable on its face constituted some evidence that Mr Dobson may have lacked capacity at the time he executed the Will but I am satisfied the evidence as summarised at [23]–[24] establishes Mr Dobson had capacity at that time.

[26]The evidence overwhelmingly supports the making of the orders sought.

Outcome

[27]I order:

(a)that the Will of Ian Douglas Dobson dated 1 April 2022 is proved in solemn form; and

(b)probate in respect of the said Will is granted.

Justice Osborne

Solicitors:

Saunders Robinson Brown, Christchurch Counsel: R W Raymond KC, Christchurch Hill Lee & Scott, Christchurch
Counsel: J V Ormsby, Barrister, Christchurch Wynn Williams, Christchurch

Counsel: J McGuigan, Barrister, Christchurch