Estate of Howell - [2019] NZHC 1731

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-485-613471

[2019] NZHC 1731

IN THE MATTER of the Estate of SYLVIA THERESA HOWELL

BETWEEN

MARK JONATHAN TAVENDALE and JULIA THERESA ELIZABETH

MATHIESON, as Executors of the Estate of Sylvia Theresa Howell
Applicants

AND

JONATHAN CHARLES BABINGTON HOWELL

Respondent

Hearing: 9 July 2019

Appearances:

J R King and S J Jamieson for Applicants Mr JCB Howell, the Respondent, in person

Judgment:

22 July 2019

JUDGMENT OF GENDALL J

This judgment was delivered by me on 22 July 2019 at 4:15 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 22 July 2019

RE ESTATE HOWELL [2019] NZHC 1731 [22 July 2019]

Introduction

[1] Sylvia Theresa Howell (the deceased) died at Christchurch on 16 September 2018.

[2] Before the Court is an application for probate in solemn form relating to what is said to be her last will dated 5 September 2014 (the 2014 will).

[3] A caveat has been lodged against the grant of probate of this 2014 will by the respondent, Jonathan Charles Babington Howell (Mr Howell) who is the son of the deceased. At issue is the validity of the will because of what is said by Mr Howell to be the deceased’s lack of testamentary capacity when she made the will in September 2014 and that matters should revert back to the previous will the deceased made on 18 October 2004 (the 2004 will).

[4] At the outset it needs to be noted that the changes the deceased made in her 2014 will from the provisions in her earlier 2004 will in one sense might not be considered to be particularly significant in terms of the substantive bequests she makes. These changes are:

(a)The respondent, Mr Howell, is removed as one of the trustees of his late mother’s will.

(b)Although the bequest from the deceased of the bulk of her estate to the Theresa Howell Trust (the Trust) in clause 6.1 of the 2014 will remain unchanged from that provision in her earlier 2004 will, clause 6.2 of the 2014 will changes matters slightly. This provision indicated that should the Trust fail, then half of the residue is to be held on trust for the respondent and his children “in such shares and at such times as my Trustees in their absolute discretion from time to time direct” and the other one-half share of the residue is to be paid to Mr Howell’s sister, the second-named applicant, Julia Theresa Elizabeth Mathieson (Ms Mathieson).

[5] The Trust has not failed. The provisions of clause 6.1 of the 2014 will transferring the residue of the deceased’s estate outright to the Trust would be implemented if probate is granted here. Effectively therefore there is little change to the distributions to be made under the deceased’s 2014 will in this respect from her earlier 2004 will.

[6] Notwithstanding all of this, Mr Howell still maintains his objection to probate being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 1731
Decision Date: 22 July 2019

CaseChat Overview and Summary

The case before the Christchurch Registry of the High Court of New Zealand involves an application for probate in solemn form relating to the last will of Sylvia Theresa Howell, dated 5 September 2014. The application is contested by Jonathan Charles Babington Howell, the son of the deceased, who alleges that his mother lacked testamentary capacity when she executed the will and that the will should be invalidated in favour of her previous will dated 18 October 2004. The central legal issue before the court was whether Sylvia Theresa Howell had the requisite testamentary capacity when she signed her 2014 will. The court assessed the evidence, including medical assessments and affidavits from the solicitors who drafted the will, to determine if the deceased understood the nature and effect of making a will, the extent of the property being disposed of, and the moral claims to which she ought to give effect.

The court found that the evidence, particularly from Dr. John Ranald Elliot, a specialist geriatric health practitioner, indicated that while the deceased had a diagnosis of mild to moderate dementia, it did not necessarily preclude her from having testamentary capacity. Furthermore, the affidavits from the solicitors who drafted the will attested that the deceased understood the changes being made and that they reflected her wishes. The court also drew a comparison to the Dollimore case, where a will-maker with dementia was found to have testamentary capacity. The court concluded that the applicants had satisfied the onus of proving, on the balance of probabilities, that the deceased had testamentary capacity when she executed her 2014 will.

The court granted probate in solemn form for the 2014 will, ruling it to be valid. The matter of costs was reserved pending any agreement between the parties, with the option for memoranda to be filed if necessary.

Orders