Estate of Frostick

[2024] NZHC 2420

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-000016

[2024] NZHC 2420

IN THE MATTER	of the Administration Act 1969
BETWEEN	PUBLIC TRUST as the executor of the estate of ANTHONY FROSTICK Applicant

Hearing:	26 August 2024
Counsel:	G M Cairns for Applicant
Judgment:	27 August 2024

JUDGMENT OF RADICH J

[1]                 Anthony Frostick died on 10 April 2020. He made a number of wills during the 23 years prior. The issue in this proceeding relates to which of the wills should be the subject of a grant of probate in solemn form.

Background

[2]After costs and liabilities, the net value of the late Mr Frostick’s estate is

$86,150.

[3]                 Mr Frostick suffered from chronic paranoid psychosis. He managed it with medication throughout most of his life. He lived alone and had no children or direct dependants. The only surviving immediate member of his family is his sister. He was able to care for himself sufficiently until August 2011 when he was moved into rest- home care.

RE ESTATE OF ANTHONY FROSTICK [2024] NZHC 2420 [27 August 2024]

[4]                 In late December 2011, Mr Frostick was transferred to dementia level care. He was at that time suffering from vascular dementia of a moderate severity with associated persecutory delusions.

[5]                 The Public Trust acted as the deceased’s property attorney, under an enduring power of attorney from 22 October 2012 until the date of his death.

[6]                 Mr Frostick’s death certificate records the cause of death as “cerebrovascular disease years”. Given that entry,  the  Public Trust  needed  to  determine  whether Mr Frostick had the requisite testamentary capacity to execute certain wills prior to his death.

[7]                 Mr Frostick made wills  on 20 June 1997, 29 April 2004, 27 January 2006,  10 November 2009 and 13 May 2010. A further will was made on 24 July 2013. Although Public Trust records show it to have been executed, the executed will itself has not been located and is presumed lost. The Public Trust holds only a copy of the draft will and the accompanying will questionnaire.

[8]                 Will instructions were taken on 13 June 2011 and 15 March 2011. Draft wills were prepared following each set of instructions. However, wills were not finalised in either case.

[9]                 The signed wills and the draft wills made provision for numerous beneficiaries including the Christchurch City Salvation Army, past neighbours of the deceased and for the deceased’s family members including siblings, a stepbrother and a nephew.

The application

[10]             On the basis of the medical evidence I come on to describe, the Public Trust has applied for the following orders:

(a)an order for a grant of probate in solemn form of the deceased’s      10 November 2009 will; or in the alternative,

(b)a grant of probate in solemn form of another of the deceased’s wills if the Court determines that a different will represents his final testamentary intention at a time when he had testamentary capacity; or in the alternative,

(c)an order under s 14 of the Wills Act 2007 validating any of the draft will instructions given by the deceased if the Court considers that those will instructions represent his final testamentary intention at a time when he had testamentary capacity, and granting probate in solemn form of such will accordingly; or in the alternative,

(d)a direction for the Public Trust to make a lost will application and a grant of probate in solemn form of the unlocated and presumed lost will dated 24 July 2013.

[11]             Each of the beneficiaries under each of the wills have, in accordance with directions as to service, been served. No one has opposed the application.

Legal principles

[12]             In order for a grant of probate to be made under s 5 of the Administration Act 1969, the Court must be satisfied that the deceased had testamentary capacity when the will in question was made. To establish testamentary capacity, the will-maker must have a sufficient understanding of four things:1

(a)that he or she is making a will and the effect of doing so;

(b)the extent of the property being disposed of;

(c)the moral claims to which he or she ought to give effect when making the testamentary disposition; and

1      Banks v Goodfellow (1870) LR 5 QB 549; Woodward v Smith [2009] NZCA 215 at [19].

(d)that he or she was free from any disorder of mind that might distort feelings or judgment relative to making a will.

[13]             Mental soundness is a question of degree. The mere existence at the time at which a will was made of a delusion or partial unsoundness of mind not affecting the deceased’s general faculties does not necessarily render the will-maker incapable of disposing of their property by will.2

[14]             The task for the party propounding the will is to show that, at the time at which the will was made, the testator was free from delusion or its influences, or that a delusion was of such a character that it could not reasonably be seen to affect the disposition of the will-maker’s property.

The medical evidence

[15]             The Public Trust obtained two reports from Dr Jane Casey, a consultant psychiatrist and psychogeriatrician; the first in September 2022 and the second in February 2023 (a revised version of an October 2022 report which corrected factual inaccuracies).

[16]             Dr Casey determined in her second report that, on the balance of probabilities, Mr Frostick would have had testamentary capacity when he signed the 10 November 2009 will. In that will, he left a half share to Yvonne Cawkill and a half share to Barry Joyce, both friends. If the provisions failed, then the residuary estate would go to the Salvation Army, Christchurch.

[17]             Dr Casey concluded that the instructions for this will were given at a time when Mr Frostick was not needing care in the public health system, was reportedly clinically stable with minimal cognitive impairment and when there was an absence of psychosis. In other words, he was not at that time suffering from any disorder of the mind. That is to be contrasted with the position at the times at which he signed his later wills.

2      Earles & Others Dobbie’s Probate and Administration Practice (6th ed, Lexis Nexis, Wellington, 2014) at 49.7.8.

[18]             As Dr Casey explained, Mr Frostick suffered from early onset mood and psychotic disorder with somatic preoccupation since the 1990s. She explained that, in May 2010, there was a flare-up of the symptoms, causing him to suffer from persecutory delusions relating to his neighbours. Dr Casey concluded that the 13 May 2010 will revision was related temporally to that acute psychosis and to those persecutory delusions. Accordingly, it could not be said that Mr Frostick had testamentary capacity when he signed the 2010 will.

[19]             Dr  Casey  referred  to  psychotic  symptoms  re-emerging  in   July   2011. Mr Frostick needed to be admitted to hospital at that time because of his persecutory delusions and mild cognitive impairment. Dementia had been diagnosed. It could not be said, therefore, that when instructions for a new will were given in March 2011, Mr Frostick had the necessary testamentary capacity.

[20]             Dr Casey said that there is a distinct possibility that in June 2011 the psychosis was re-emerging which precipitated the changes to the unsigned and undated will dated 13 June 2011.

[21]             Dr Casey has referred to further evidence about Mr Frostick’s condition fluctuating throughout 2011 and to medical records recording a diagnosis of moderate vascular dementia prior to the enduring power of attorney over the deceased’s affairs being activated on 20 December 2011.

[22]             Dr Casey said it was not in her view possible to say that Mr Frostick had testamentary capacity, in relation to the July 2013 will, with the necessary degree of probability.

[23]             Accordingly, on the medical evidence, the 10 November 2009 will was the most recent will in relation to which it can properly be concluded that Mr Frostick had testamentary capacity.

Discussion

[24]             On the basis of Dr Casey’s evidence, as just described, I am satisfied that there is sufficient evidence to establish that, on the balance of probabilities, Mr Frostick had

testamentary capacity when he executed his will dated 10 November 2009. The evidence from Dr Casey on his capacity at that time is unequivocal.

[25]             I am satisfied also that it would be unsafe for the will executed on 24 July 2013 (and presumed lost), any instructions or unsigned draft wills on 13 June and 15 March 2011 or the executed will on 13 May 2010 to be probated or validated.

Orders

[26]             I make an order granting probate in solemn form of the deceased’s will dated 10 November 2009.

Radich J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for Applicant