Estate Of Geraldine Yates

[2025] NZHC 2358

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-601937

[2025] NZHC 2358

IN THE MATTER OF

the Estate of Geraldine Yates

BETWEEN

SHARON MCGANN

Applicant

AND

PETER FRANCIS MCGANN

Respondent

Hearing:	24 July 2025
Appearances:	M T Riordan for Applicant Respondent in person
Judgment:	20 August 2025

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 20/08/2024 at 11am Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

Quin Law, New Plymouth Copy to Respondent

RE ESTATE OF GERALDINE YATES [2025] NZHC 2358 [20 August 2025]

Introduction

[1]    The applicant, Sharon McGann, and her brother, Peter McGann, are the executors named in the last will of their late mother, Geraldine Yates, who died in February 2024.

[2]    After Ms Yates died, Peter McGann neither sought probate of her last will nor renounced his role as executor.

[3]    On 4 March 2025 Sharon McGann obtained an order  nisi  calling  upon  Peter McGann to show cause why probate of Ms Yates’ last will should not be granted to Sharon McGann alone as one of the executors.

[4]    Sharon McGann says that Peter McGann has not shown cause why the order nisi should not be made absolute and probate issued to her alone as sole executor and trustee.

[5]    Peter McGann says that the last will does not reflect his mother’s testamentary intentions. He says that there are issues of undue influence and testamentary capacity.

Background

[6]    Ms Yates made her last will on 27 October 2023, revoking all earlier wills and appointing Sharon McGann and Peter McGann as executors and trustees.

[7]    The principal asset of the estate is a residential property at 31 Blake Street, Waitara (Property). Under her last will Ms Yates bequeathed her jewellery to her granddaughters and left the residue of her estate in equal shares to Sharon McGann and Peter McGann.

[8]    On 4 April 2024, a meeting was  held  at  Ms  Yates’  solicitors’  office,  Legal Solutions, for Peter McGann and Sharon McGann, as executors, to sign the probate  application  and  affidavit.  Sharon  McGann   signed   the   documents. Peter McGann was unable to attend the meeting.

[9]    Legal Solutions sent six emails to Peter McGann between 29 March 2024 and 12 August 2024 asking that he attend their office to sign the probate documents. Peter McGann responded to most of those emails but did not attend to sign the probate documents.

[10]   Following a telephone conversation with Peter McGann on 23 August 2024, the Legal Solutions solicitor advised Peter McGann and Sharon McGann to each seek independent legal advice. Sharon McGann then instructed her current solicitors, Quin Law. Quin Law sent a letter to Peter McGann asking him to advise them of his availability and how he wished to be contacted. No response was received.

[11]   On 11 February 2025 Sharon McGann filed a without notice application under s 19(1) of the Administration Act 1969 (the Act) for an order nisi, calling  upon  Peter McGann to show cause why probate of Ms Yates’ last will should not be granted to Sharon McGann alone as one of the executors of the last will.

Procedural history

[12]The order nisi was granted on 4 March 2025 by the Registrar.

[13]   The matter was called in the Judges’ Chambers List on 7 April 2025 and timetabling directions were made towards a hearing.

[14]   On 8 April 2025, McHerron J  noted  that  it  was  not  at  all  clear  to  Sharon McGann why her brother was resisting probate of the will, apart from some general statements to the effect that he believed his mother’s last will was not “as she requested nor discussed”.1 McHerron J said that Peter McGann’s grounds for opposition required expansion and explanation.

[15]   McHerron J directed Peter McGann to file any further affidavit evidence clarifying the basis for his objections to probate of the last will no later than 5 May 2025. Any affidavit evidence in response was to be filed no later than 3 June 2025. McHerron J directed Peter McGann to file and serve submissions no later than

1      Re Yates HC Wellington CIV-2025-485-601937, 8 April 2025 (Minute).

10 working days prior to the hearing and Sharon McGann to file her submissions no later than five working days before the hearing.

[16]   Peter McGann did not file his evidence in accordance with the timetable. On 5 June 2025 Grau J issued a minute stating that Peter McGann had not filed the affidavit evidence as directed and noted that the time for filing had long since passed.2 Grau J recorded that Peter McGann had advised the registry on 28 May 2025 that he had not received reminders from the registry that related to his non-filing. Grau J said that even if Peter McGann had not received the reminders, he should have been aware that he needed to file his evidence.

[17]   Grau J gave Peter McGann a final opportunity to file his evidence by 13 June 2025, otherwise the application may proceed without it. Peter McGann was directed to confirm receipt of that minute.

[18]   Peter McGann did not comply with those orders, but on 13 June 2025 he notified the Court that he had an appointment with a Justice of the Peace on 16 June 2025 to witness his affidavit, and he would then file it.

[19]   On 16 June 2025 Sharon McGann filed a memorandum stating that no further evidence had been filed by Peter McGann in accordance with Grau J’s order and sought directions.

[20]   La Hood J issued a minute dated 24 June 2025 directing Sharon McGann to file any further evidence in response to the 4 April 2025 affidavit of Peter McGann no later than 30 June 2025.3

[21]   La Hood J issued a further minute on 26 June 2025 directing that Peter McGann was not permitted to file any further evidence in the proceedings without an accompanying application for leave to file that evidence out of time, which must contain a full explanation of his noncompliance with the Court’s directions to date.

2      Re Yates HC Wellington CIV-2025-485-601937, 5 June 2025 (Minute).

3      Re Yates HC Wellington CIV-2025-485-601937, 24 June 2025 (Minute).

[22]On 26 June 2025, Peter McGann filed an affidavit dated 25 June 2025.

[23]   On 26 June 2025 La Hood J issued a further minute.4 La Hood J noted that Sharon McGann objected to the filing of the 25 June affidavit because it was not accompanied by an application to file evidence out of time as required by the previous minute.

[24]   As Peter McGann was self-represented, La Hood J was prepared to grant him the indulgence of accepting the affidavit for filing. La Hood J granted an extension to Sharon McGann to file her further evidence by 7 July 2025. La Hood J directed that any further evidence or documents Peter McGann sought to file had to be accompanied by an application for leave.

[25]   Peter McGann did not file submissions as directed. On the morning of the hearing, he sought to file a document described as “affidavit of Peter Francis McGann (executor) to show further evidence clarifying the basis for my objections to probate of Geraldine Yates 27 October 2023 will”.

[26]   This document was not accompanied by an application for leave. The timing was problematic as it afforded no opportunity for Sharon McGann to consider it, file any evidence, or prepare any submissions in response.

[27]   I indicated that I would receive the affidavit and consider whether it should be admitted in the course of my decision.5 I indicated that if there was anything determinative in the affidavit, Sharon McGann would be given an opportunity to respond.

Evidence

[28]   Sharon McGann filed an affidavit on 11 February 2025 in support of the application for an order nisi. She said that Peter McGann was living at the Property and had done so since Ms Yates’ death. Peter McGann was not paying rent to the estate.

4      Re Yates HC Wellington CIV-2025-485-601937, 26 June 2025 (Minute).

5      Re Yates HC Wellington CIV-2025-485-601937, 24 July 2025 (Minute).

[29]   Sharon McGann set out the efforts that were made to engage Peter McGann in the process of obtaining probate of the last will. On 23 August 2024 a solicitor from Legal Solutions had a phone conversation with Peter McGann, during which he advised he was not willing to sign the application for probate and supporting affidavit because of his concerns about the validity of the will and other matters impacting the administration of the estate.

[30]   Sharon McGann said that a grant of probate was required to enable Ms Yates’ estate to be administered in accordance with the terms of the will. She swore that she would faithfully execute the will in accordance with the law.

[31]   Peter McGann filed an affidavit dated 4 April 2025 setting out that he relocated from Auckland to Waitara around Christmas 2019 to look after his mother, which he did until mid to late January 2024. Peter McGann acknowledged he was one of the executors named in the last will, but refuted Sharon McGann’s allegation that he refused to join in the application for probate. Peter McGann said he initiated contact with Legal Solutions to come into their office regarding the probate, but he was unable to attend due to a funeral in Auckland.

[32]   Peter McGann denied that he failed to take any steps to obtain probate.    Peter McGann said he was still corresponding with Legal Solutions six months after Ms Yates’ death, during which there was never any mention of a three-month period from his mother’s death to have probate signed.

[33]   Peter McGann also refuted the claim that he wanted his sister removed as executor. He said that he had always been adamant when talking to his sister and mother about the last will that he wanted Sharon McGann to be included as an executor.

[34]   Peter McGann said that he and his sister have joint Enduring Powers of Attorney (EPOAs) over his mother’s healthcare and financial decisions.

[35]   Peter McGann said that he believes his mother’s last will is incomplete. He said that he believes his mother’s last will is not as she requested or discussed.

[36]   In a further affidavit filed on 26 June 2025, Peter McGann deposed that his mother always maintained that  she  wanted  parity  for  himself  and  his  sister.  Peter McGann alleges that Sharon McGann had done “everything possible to manipulate his mother, health providers, hospice, Age Concern New Zealand, lawyers, everyone”. Peter McGann said that he and Sharon McGann were to be appointed as joint EPOA for Ms Yates’ property, and that he was to be appointed as EPOA for health and welfare. Peter McGann says his sister went behind his back and made herself EPOA for health and welfare as well as property.

[37]   Peter McGann said that Ms Yates enabled Sharon McGann to buy a house by acting as guarantor for the mortgage on Sharon McGann’s  house from 2014 until  Ms Yates’ death, using the property at 31 Blake Street as collateral. Peter McGann said that this constitutes a conflict of interest.

[38]   Peter McGann deposed that a “clause” handwritten by himself on the back of what he refers to as “mum’s original will” was signed by Ms Yates on 22 October 2022 and was to be included in her will. Peter McGann says that this note was signed in the presence of himself and his sister.

[39]A copy of the handwritten note is annexed. It reads:

This clause is to be added to my (Geraldine Yates) last will and testament when renewed and adjusted to conform to NZ law language.

i.    My son Peter Francis McGann is to have full ownership of my property at 31 Blake St, Waitara.

ii.   My daughter Sharon McGann will keep the property at 4 Strange St, Waitara from the mortgage guarantee for the property with my own property being used as collateral ie 31 Blake St, Waitara.

iii.    The mortgage that remains in regards to 4 Strange St, Waitara shall be split 50/50 between both my son and daughter.

[40]   The note is signed “G Yates”. It is not witnessed. The note is written on the back of Ms Yates’ earlier will, dated 2 November 2006.

[41]   Also attached to the affidavit are patient medical records apparently relating to Ms Yates. These notes appear to be from a community support services staff member and include:

Pays for her own meals, Annette provides her tea. Carer helps with breakfast.

Finances—automatic payment. Daughter managing cashflow cards since April 2023.

Property—Geraldine is the owner of her house. Her son and daughter has equal share in her will. Son is EPOA property. Geraldine want both son and daughter to be EPOA property.

[42]Peter McGann’s affidavit concludes:

If I may submit retrospectively your [honour] and the courts that evidence regarding the following:

A.Serious allegations made

B.Financial abuse

C.Deception used for personal gain

D.Elder abuse

I’m still waiting for just a few documents to arrive so could they please be submitted closer to the hearing time?

[43]   Sharon McGann filed  an  affidavit  dated  3  July  2025  in  response  to  Peter McGann’s 26 June affidavit. She said she does not understand what her brother meant when he says he believes the last will “to be incomplete and not represented correctly as per my mother’s last will”. Sharon McGann said at her mother’s request, she took her to the lawyers to make the will and Ms Yates gave the instructions to Legal Solutions herself. Sharon McGann was present at the appointment as support for her mother but did not take part in any discussion about the contents of the will.

[44]   Sharon McGann deposes that after Ms Yates made her last will and appointed EPOAs, Sharon McGann informed Peter McGann. She told Peter McGann that the main changes to the will were adding herself as an executor and removing Ms Yates’ deceased partner. Sharon McGann says she gave Peter McGann a copy of the last will in late December 2023, and he did not raise any issues.

[45]   Sharon McGann said that she believes Peter McGann has refused to sign the probate documents because he wants to continue living at the property without paying rent or other outgoings. After Ms Yates died, Peter McGann asked Sharon McGann what would happen to the house. Sharon McGann told Peter McGann it would have to be sold or he would have to buy out her share. Peter McGann told Sharon McGann he could not afford to buy her share. Sharon McGann said she has never done anything to manipulate anyone and always tried to obtain the best care and outcomes for her mother. She says that Ms Yates made her own decisions about who she wanted to appoint as EPOA.

[46]   Sharon McGann denied having seen the handwritten note prior to receiving Peter McGann’s affidavit. She denied that she saw her mother sign it and states that she is familiar with her mother’s signature and that the signature on the note is not consistent with Ms Yates’ usual signature.

[47]   Peter McGann’s affidavit, which he attempted to file on 24 July 2025, contained a fuller version of the carer notes attached to his earlier affidavit. He also attached various bank records purporting to show withdrawals against which he marked initials showing who he believed the withdrawals were made by. The carer notes refer to a referral to a private psychologist for a competency assessment which Ms Yates and Sharon McGann are recorded as agreeing to. Peter McGann attached to his affidavit a letter from his niece containing allegations against him of elder abuse. He said that this shows a level of ill-will towards him. He said that the allegations were unfounded.

[48]   A document which appears to be a competency test was also attached to the affidavit. Peter McGann did not file any evidence as to the effect of that document or the level of competency it indicated. It appears to be a Mini-ACE dementia test dated 1 September 2023 showing a score of 16/30.

Legal principles

[49]Section 19 of the Act provides:

19       Proceedings where executor neglects to prove will

(1)In any case where any executor named in a will neglects or refuses to prove the will, or to renounce probate thereof, within 3 months from the death of the testator, the court may, upon the application of any other executor or executors or of any person interested in the estate or of Public Trust or of the Māori Trustee or of any creditor of the testator, grant an order nisi calling upon the executor who so neglects or refuses to show cause why probate of the will should not be granted to that executor alone or with any other executor or executors or, in the alternative, why administration should not be granted to the applicant or some other person.

(2)Upon proof (whether by affidavit or otherwise) of service of the order, or upon the court dispensing with service of the order, if the executor who is so called upon does not appear or upon cause being shown, the court may make such order for the administration of the estate, and as to costs, as appears just.

…

[50]   Section 19 envisages two stages.6 First, the Court may grant an order nisi where a named executor neglects or refuses to prove the will, or to renounce probate thereof, within three months from the testator’s death. As such, an obligation to seek probate must exist. Secondly, the order nisi calls on that executor to show cause why probate should not be granted to the applicant. The making of any order under s 19 is discretionary.

[51]   The Court of Appeal recently held that the principles under s 21 of the Act, which deal with the discharge or removal of an administrator, similarly apply to a s 19 application.7 The starting point is the Court’s duty to see estates properly administered and trusts properly executed. This jurisdiction involves a large discretion which is heavily fact dependent. The wishes of the testator/settlor (evidenced by the appointment of a particular executor or trustee) are to be given consideration, but ultimately the question is what is expedient in the interests of the beneficiaries. Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality, and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established. Hostility as between administrators/trustees and

6      Lane v Goldson [2025] NZCA 36, [2025] 2 NZLR 336.

7      At [46], adopting the principles set out in Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 at [22]. See also Farquhar v Nunns [2013] NZHC 1670 at [13].

beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.8

[52]   Providing that an order nisi is validly granted, the onus is on the respondent to show cause why the order nisi should not be made absolute.9 The threshold for showing cause is low. It has been described as a requirement to establish an element of doubt,10 and lower than the standard of the balance of probabilities.11 The Court does not usually resolve disputed facts at a show cause hearing.12 The purpose of a show cause hearing is not to decide the ultimate issue as to the validity of the will.13

Issues

[53]The issues I must determine are:

(a)Was the order nisi validly granted?

(b)Should the late evidence be admitted?

(c)Is an application in solemn form required?

Was the order nisi validly granted?

[54]   Sharon McGann’s application for an order nisi stated the grounds for making the application without notice as:

(a) Other affected persons will be served with a copy of the order.

[55]   That is not one of the permissible grounds for applying without notice. It appears that the Registrar granted the order nisi without considering whether it could properly be made without notice. This situation arose in Lane v Goldson where the

8 At [46].

9      Underwood v Underwood [2025] NZHC 788 at [16].

10     Re Nissenbaum [1939] NZLR 94 (SC) at 96.

11     O’Neill v O’Neill [2018] NZHC 1356 at [11].

12     Underwood v Underwood, above n 9, at [16].

13 At [16].

application also failed to state the without notice ground and the Court of Appeal said it was difficult to see that any applied.14

[56]   In those circumstances it is appropriate for the Judge hearing the application for the order to treat the application afresh.

[57]   When I consider the order nisi afresh, I am satisfied that Sharon McGann has established that Peter McGann had an obligation to seek probate. Peter McGann agreed with facts that objectively establish he either failed or neglected to obtain probate or to renounce his executorship within three months of the death of his mother. He agreed that the estate is worth over $15,000. He agreed that there were numerous attempts to have him sign documents for the purpose of obtaining probate and he agreed that he did not sign the documents or renounce his executorship.

[58]   Peter McGann said his failure to take any action was justified and he did not realise that there was a time limit for obtaining probate. The lack of knowledge of the time for obtaining probate is a claim of ignorance of the law. The claim that his actions were justified is not the issue at this stage when an order nisi is being considered. That is the issue for the show cause hearing.

[59]   I am satisfied on the evidence I have heard that, although the order nisi was improperly obtained, it would inevitably have been granted. The evidence that establishes the grounds for such an order is not disputed and there is nothing to be gained by requiring a further hearing on that issue except delay and expense which would diminish the value of the estate. When treating the application afresh, and considering the evidence before me, the interests of justice lie in granting the order nisi.

[60]   The result of that finding is that the burden is on Peter McGann to show cause why the order nisi should not be made absolute.

14     Lane v Goldson, above n 6, at [52].

Should the late evidence be admitted?

[61]   Although the threshold for requiring probate in solemn form is low, it does require  some  actual  issues  to  be  properly  raised  by   admissible   evidence.  Peter McGann has had multiple opportunities to provide evidence. While leeway will be granted to a litigant in person and the Court will always look at where the real contest is between the parties, a party seeking to resist probate must do more than simply make unfounded or speculative assertions.

[62]   At the hearing, Peter McGann presented a mixture of submissions and evidence. His main issue with the last will was that it did not reflect an arrangement he thought his mother would make, namely that he would inherit the property, and that his sister would inherit nothing.

[63]   The evidence which Mr McGann sought to file on the day of the hearing related to claims of undue influence and testamentary capacity. It included a competence test which Peter McGann says I can infer raises issues of capacity. There was however no evidence from the doctor who performed the capacity assessment, and there was no evidence from Ms Yates’ solicitors who prepared the last will. The document which appears to be a Mini-ACE dementia test tells me very little in isolation.

[64]   The late filing was deeply prejudicial to Sharon McGann. If the evidence is of such cogency that it should be accepted, despite its lateness and non-compliance with multiple court orders, Sharon McGann would need an opportunity to respond.

[65]   The cogency depends on whether the late evidence raises a real doubt as to whether the order nisi should be made absolute.

[66]For reasons that I set out below, I do not consider that it does.

Is an application in solemn form required?

[67]   The High Court has jurisdiction to grant and revoke probate of wills and letters of administration of the estates.15 An application for a grant of administration can be made:16

(a)without notice where a will’s validity is not contested or questioned (often referred to as an application in “common form”); or

(b)in solemn form when the applicant elects to do so or is ordered to do so.

[68]   Peter McGann contests the validity of the last will. He said that his mother’s memory was poor and argued that she did not have sufficient capacity at the time the last will was made. He said that the wishes expressed in the handwritten note reflected Ms Yates’ actual testamentary intention. He also alleged  undue  influence  by Sharon McGann.

[69]   Sharon McGann submitted that the affidavits filed by Peter McGann do not discharge the onus on him to establish that probate of the last will should not be granted.

[70]   Sharon McGann said that, even if the handwritten note was accepted as a will of Ms Yates under s 14 of the Wills Act 2007, it was revoked by the making of the last will in October 2023. Sharon McGann submits that the evidence does not raise any real doubt as to the validity of the last will, but that there is doubt over the veracity of the handwritten note and whether the signature on it is Ms Yates’. Ms Yates did not incorporate any of the contents of the handwritten note into the last will.

[71]   Sharon McGann submits it is relevant that the last will does not differ substantially from Ms Yates’ previous will dated 2 November 2006. Under both wills Peter McGann and Sharon McGann each received a half-share of the residual estate.

15     Underwood v Underwood, above n 9, at [2] referring to the Administration Act 1969, s 5.

16     High Court Rules 2016, r 27.3.

Sharon McGann submits that Ms Yates’ wish for parity between her children is not consistent with the handwritten note, which states that Peter McGann is to have full ownership of the Property, to Sharon McGann’s exclusion.

[72]   Sharon McGann submits that the affidavits filed by Peter McGann indicate that he does not want to be an executor and trustee of the last will alongside her. He wishes to remain living in the Property without paying rent or buying out Sharon McGann’s share. Sharon McGann submits that the only practical solution is for probate of the last will to be granted to her alone as sole executor and trustee. Peter McGann will not work together with her and is preferring his own interests.

[73]   Section 14 of the Wills Act enables the Court to validate a document that appears to be a will but does not comply with the requirements under s 11, such as the 2022 handwritten note. The Court may declare the document valid if satisfied that it expresses the deceased’s testamentary intentions.17 In making that decision the Court may consider the document itself, evidence on the signing or witnessing of it, evidence of the deceased person’s testamentary intentions and evidence of statements made by the deceased.18 The fundamental principle is that the Court should give effect to the intention of the will maker.

[74]   Validation of the 2022 note as a will can only be considered if for some reason the last will is invalid. That is because the last will expressly revokes any previous wills, so even if the handwritten note was valid as a will (which it does not appear to be on the face of it), it is revoked by the later will.

[75]   The last will would only be invalid if there are issues of testamentary capacity or undue influence.

17     Wills Act 2007, s 14(2).

18     Section 14(3).

Testamentary capacity

[76]   The issue of testamentary capacity is one of fact to be decided in light of established legal principles. The leading authority on the elements of testamentary capacity is Banks v Goodfellow, where Cockburn CJ said:19

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall 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.

[77]    Capacity must be judged in the context of the decision being made. In the present case, Sharon McGann is seeking probate of an apparently validly executed will that does not differ in any significant way from Ms Yates’ earlier will. It leaves her residual estate equally to her son and daughter which was also her expressed intention in the notes attached to Peter McGann’s affidavit. Peter McGann also acknowledges that his mother wanted parity between her children.

[78]   The real issue is that Peter McGann regards “parity” as including not only his mother’s estate, but also his sister’s property. Peter McGann appears to believe that, because his sister has managed to purchase her own property (and pay her own mortgage), parity involves him inheriting his mother’s property. Peter McGann suggested that the handwritten note envisaged that Sharon McGann’s current mortgage would be split and somehow half would be attached to Sharon McGann’s property and the other half to the Property. It is very unclear how that could be achieved in practical terms. Ms Yates  could  not bequeath a mortgage on Sharon McGann’s house to  Peter McGann.

Undue influence

[79]   Peter McGann makes serious and unsubstantiated allegations regarding undue influence. The evidence which he has provided or attempted to file falls well short of establishing any such concern. Ms Yates’ last will was properly prepared with legal

19     Banks v Goodfellow (1870) LR 5 QB 548 at 565.

advice and is completely consistent with her earlier will and earlier stated intention to treat her children equally. The fact that Sharon McGann has purchased her own house is irrelevant to those considerations.

[80]   The evidence that Peter McGann has filed or purported to file also falls short of casting doubt as to capacity. Ms Yates’ age does not of itself give cause for doubt as to her capacity. Nor are concerns about short term memory sufficient on their own to raise a doubt as to testamentary capacity. In cases where abrupt and unfair changes to a will are made, the Court may regard that as supporting a submission that there was a lack of testamentary capacity.20 In this case, the changes made by Ms Yates in her last will were neither abrupt nor unfair.

[81]   By contrast, the change represented by the handwritten 2022 note would be a very significant change. That note would almost entirely disinherit Sharon McGann. Even if the note did express Ms Yates’ intention in 2022, by the time she made her last will, she chose to maintain the position of distributing her estate equally between her children.

[82]   I acknowledge the low threshold for showing cause, but I do not consider that the evidence concerning Ms Yates’ testamentary capacity at the time she made the last will are sufficient to require an application for probate in solemn form. Ms Yates made a will in 2023 with the benefit of legal advice, which made no more than minor changes to her earlier will. The evidence does not raise any real doubt that the last will reflected Ms Yates long held testamentary intention. I have far greater concerns about the 2022 handwritten note both as to validity, undue influence, and capacity to make such a major change.

[83]   An order requiring an application in solemn form would diminish the estate. It is not justified, and it would be to Peter McGann’s detriment because he is in a worse financial position than his sister and cannot afford a reduction in his share of the estate.

20     Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [34]

Result

[84]I make the following orders:

(a)The order nisi is made absolute.

(b)Probate of the last will of Geraldine Yates dated 27 October 2023 is granted to the applicant Sharon McGann as sole executor and trustee.

Costs

[85]The parties are directed to attempt to agree costs.

[86]If the parties are unable to agree on costs, I make the following directions:

(a)any application for costs is to be made by memorandum to be filed and served within 10 working days of the date of this judgment;

(b)any reply is to be filed and served by memorandum within a further

10 working days; and

(c)memoranda as to costs are not to exceed five pages.

[87]   I will deal with the issue of costs on the papers unless the parties indicate that hearing time is required, including whether any costs of the litigation arising from the application ought to be deducted from the estate.

Wilkinson-Smith J