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 granted for the deceased’s 2014 will. He continues to suggest that the deceased did not have testamentary capacity when she signed this will, therefore it is ineffective, and the 2004 will should dictate the position.

[7]                On these matters it seems some attempt has been made to put before the Court information to explain why the deceased may have altered the position prevailing under her 2004 will when she chose to execute her 2014 will. It is suggested that around 3 August 2014 there was an altercation between the respondent, Mr Howell and his sister, Ms Mathieson at the deceased’s home. As a result, Mr Howell was charged and convicted of common assault. Some issues then arose as to his being bailed at the time to the home of his mother, the deceased and she, it seems, then took steps to have his bail address changed.

[8]                Be that as it may, issues over why the deceased may have wished to make the small changes to her 2004 will she did with her 2014 will do not have a specific bearing upon the question before me as to her testamentary capacity when signing the later will.

Assessment of testamentary capacity

[9]                So far as testamentary capacity is concerned in a case such as this, the onus of establishing that the deceased did have testamentary capacity rests with those propounding her 2014 will, the applicants here. The obligation is for the applicants in this case to establish on the balance of probabilities that the deceased had capacity in September 2014 when she made the will in question.

[10]            The requirements from the authorities seem to be that the applicants in this case must demonstrate that the deceased had sufficient understanding of three things:

(a)that she was making a will and the effect of doing so;

(b)the extent of the property being disposed of, and

(c)the moral claims to which she ought to give effect when making the testamentary dispositions.

[11]            The leading authority on testamentary capacity is Banks and Goodfellow.1 In the judgment of Cockburn J at 567 the elements of testamentary capacity are outlined as follows:

As to the testator’s capacity, he must, in the language of the law, have sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects to his bounty, and the manner in which it is to be distributed between them. It is not necessary that he 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.

[12]            In a recent New Zealand Court of Appeal decision Loosley and Anor v Powell & Ors,2 the Court said that:

A will-maker is free to change [their] will and unfairly and indeed brutally disappoint expectations, providing that is done with a full understanding and capacity.

[13]            In this case the 2014 will of the deceased removed her son, Mr Howell, as executor and trustee. To all other effects, however, his material entitlement under the 2014 will remains the same as it was under her earlier 2004 will. A proper question might be, therefore, why the respondent, Mr Howell continues to proceed with his objection to probate being granted with respect to the 2014 will.

[14]            Turning nevertheless back to the issue of testamentary capacity here, the evidence which is before the Court on this aspect includes certain medical assessments.

1      Banks and Goodfellow (1870) LR 5, QB 549.

2      Loosley and Anor v Powell & Ors [2018] NZCA 3 at [35].

[15]            Before me Dr John Ranald Elliot (Dr Elliot) a specialist geriatric health practitioner gave evidence. He had seen Mrs Howell on referral three times during 2014, shortly after she had signed her 2014 will. These occasions were 14 October 2014, 30 October 2014 and 18 December 2014.

[16]            From his affidavit evidence before the Court, Dr Elliot made a number of useful statements:

(a)Following his 14 October 2014 appointment with the deceased he noted at paragraphs 15 and 21 of his affidavit:

15. I undertook a simple MMSE with Mrs Howell. She scored 26/30 which is consistent with mild abnormality and consistent with scoring 17/30 on a MOCA at an earlier date.

21. It was my opinion that the probable diagnosis would be mild to moderate dementia of Alzheimer type. However, I awaited the results of an upcoming CT scan, and a further appointment, before confirming any diagnosis.

(b)Then, after Dr Elliot’s 30 October 2014 appointment with Mrs Howell, he stated in his affidavit evidence:

26.     My report notes that the results of the CT scan showed appreciable change since her last scan in 2006. I confirmed the clinical diagnosis of Alzheimer’s dementia of mild to moderate severity.

27.     … My conclusions from my previous report – that Mrs Howell probably lacked capacity with regard to property, and probably maintained capacity with regard to health and welfare – were unchanged.

28.     … A diagnosis of Alzheimer’s dementia, including a mild to moderate diagnosis, is not determinative of whether or not a person has capacity to sign documents but clearly raises doubt. There are clear risks that a document signed by a patient with a diagnosis of Alzheimer’s disease, regardless of severity will be challenged, especially in a setting of family disharmony. The more complex the document and the greater the complexity of issues being considered, the higher the risk that capacity is lacking.

(c)Then, in Dr Elliot’s affidavit referring to the 18 December 2014 appointment he had with Mrs Howell, he stated:

33.     This appointment took place after Mrs Howell had moved into a retirement village and began to settle.

34.     My previous clinical diagnosis of Alzheimer’s dementia of mild to moderate severity remains unchanged, as did my conclusions with respect to capacity regarding health and welfare, and with regard to finances.

(d)Finally, in the concluding paragraphs of his affidavit regarding testamentary capacity, Dr Elliot stated:

35.     None of my three assessments refer to testamentary capacity. I was not asked to undertake such an assessment at the time.

36.     I am aware of the test for testamentary capacity. I understand a will-maker must have sufficient understanding of three things:

36.1That they were making a will and the effect of doing so;

36.2The extent of the property being disposed of; and

36.3The moral claims to which the will-maker ought to give effect to when making testamentary dispositions.

37.     In my opinion I think it is very likely that Mrs Howell had capacity with regard to 36.1.

38.     In my opinion it is unlikely she had full capacity with regard to

36.2 as outlined above. If she was given a clear summary of her situation and guidance at the time by her independent solicitor it is possible this could be mitigated and that she would have capacity in this regard. I am uncertain if there were major changes from earlier wills where she clearly had capacity but if there were no changes this might not require a decision.

39.     In my opinion it is possible but doubtful that she had full capacity with regard to 36.3. In a setting of marked disharmony in a family and allegations of influence I believe it would be unlikely that Mrs Howell could weigh up such complex decisions.

40.     … it is possible that the specific change she was making was so straight forward that she had the capacity to make that specific decision at that specific time. The toolkit for assessing capacity published by the New Zealand Law Foundation outlines that capacity is assessed in regard to a specific decision at a specific time. Secondly it outlines that a supported decision is possible.

41.     If for example, her son had clearly breached her trust it might be a very simple moral decision that his role should be altered in her will. I believe she would understand independent legal advice to allow her to make a supported decision and to guide her in appropriate mechanisms.

42.     In my opinion she would probably have capacity to make such straight forward decisions.

[17]            In addition, in his oral evidence before the Court, Dr Elliot went on to say in the Notes of Evidence (NOE) at page 7, line 9:

In the report I state that “Mrs Howell scored 80 out of 100 which sits in the category of moderate cognitive impairment”. The normal range for a result for this test sits from 78 to 100. So, a score of 80 is a score that will be potentially scored by someone who does not have dementia and is able to function independently in the community.

[18]And at page 7, line 30:

So the scores on this test are not a precise cut off where one suddenly changes from having normal function to dementia and dementia’s secondly not defined purely on the result of a test result but rather provides some support for a diagnosis of dementia, so about 10% of the – it’s certainly quite possible – the cut off is 78 on the test and so she would be at about the 10th percentile of normal function in a normal range, so if you take people that are so called have normal cognition and rated them from zero to 100, a score of 80 would place her in the bottom 10% of people that would score normally on the test.

[19]            In addition to the evidence of Dr Elliot, before the Court were affidavits in support of the application from the first-named applicant, Mark Jonathan Tavendale (Mr Tavendale), and from Anna Elizabeth O’Callaghan (Ms O’Callaghan).

[20]            Mr Tavendale and Ms O’Callaghan are both solicitors who acted here  on  Mrs Howell’s instructions for the 2014 will, took her through the provisions of this will and arranged witnessing of her signature, this occurring on 5 September 2014. Both of them have indicated in their affidavits that they were cognisant of the need to consider testamentary capacity here, particularly given Mrs Howell’s age and what is said to be her short-term memory abilities.

[21]            In his affidavit sworn 5 June 2019 which was provided in evidence in this matter, Mr Tavendale deposed:

28As is my practice when taking instructions from more elderly clients, I turned my mind to testamentary capacity. Mrs Howell appeared entirely cognisant of her surroundings and the matters we were discussing. She was able to clearly and logically articulate her concerns about Jonathan’s conduct and approach to money, and her concerns that he might complicate or dispute decisions against her wishes, or that his children would not be looked after out of his share of the Trust.

29In that meeting, it was my impression that Mrs Howell understood the meaning and effect of the documents we had drafted for her. I was satisfied that she was happy with the content of the documents and that they reflected her wishes. I was therefore satisfied that Mrs Howell had the requisite capacity in respect of the changes to her will.

30Annexed as Exhibit “MT18” is a copy of a file note of the meeting signed by both myself and Ms O’Callaghan. That file note records my opinion that Mrs Howell had testamentary capacity.

31I held that opinion for the following reasons:

31.1In my assessment, she understood that she was making a will and the effect of the changes being made from her previous will;

31.2The changes were sound and logical in light of Jonathan’s behaviour and Mrs Howell’s concerns as to the practical workings of her will, powers of attorney and Trust moving forward; and

31.3She was aware of the moral claims she ought to give effect to in her will, and the changes reflected her concerns that some claims may not be met by the previous will (regarding Jonathan’s children (her grandchildren)).

32During the time I knew and acted for Mrs Howell [from at least 2004] she did become more physically frail and hard of hearing but at no stage in the taking of instructions from her in 2014 did I consider her to be lacking testamentary capacity to execute a new will. She articulated that she understood the nature and effect of the changes being made.

[22]And in the affidavit of Ms O’Callaghan, affirmed 5 June 2019, she states:

8Mark [Mr Tavendale] and I met with Mrs Howell on 5 September 2014 to execute the will and other documents. My clearest recollection of that meeting is Mrs Howell’s gratitude towards Mark. I recall that, as she was leaving, she took his hand and gave him a kiss on the cheek. It was clear that the events leading up to the meeting, including the assault and trespass, [involving Mr Howell] had been very upsetting for her.

9My other recollection is of being alert to testamentary capacity on this file, as is my practice with more elderly clients, discussing that issue with Mark, and consequently making a comprehensive file note in relation to the meeting of 5 September 2014 (attached to the affidavit of Mark Tavendale as Exhibit MT18). I do not otherwise recall the meeting itself and am relying on that file note in order to state my opinion that Mrs Howell understood the effect of what she was signing.

[23]            The file note referred to by Mr Tavendale and Ms O’Callaghan exhibited as “MT18” to Mr Tavendale’s affidavit was dated 5 September 2014 and signed by   Mr Tavendale and Ms O’Callaghan. The file note relevantly stated:

The above documentation [including the 2014 will] had been drafted consequent upon the altercation that occurred between Jonathan and Julia at 22 Takahe Drive and for which Jonathan has been charged with assault. Since that altercation Theresa has been staying at Julia’s house rather than in her home at 22 Takahe Drive. While Jonathan has been bailed to another address he continues to turn up at the property at 22 Takahe Drive and as such, Theresa is not comfortable going back there to live.

The trustees had therefore decided to remove Jonathan as a Trustee of the Trust.

Mark stepped Theresa through each of the documents and explained the nature and effect to her. She acknowledged that she understood what the documents effected, …

Theresa, whilst slightly hard of hearing appeared entirely cognisant of her surroundings and the matters we were discussing. She intimated to us that she understood and that she was happy with the content of the documentation and that it reflected her wishes.

[24]            The only other evidence of any possible relevance before the Court here represents  two  affidavits filed by the respondent, Mr Howell, each being filed on  13 February 2019. Aspects of that affidavit as evidence that might be considered relevant to the testamentary capacity issue here broadly is as follows:

(a)Paragraph 1 of Mr Howell’s first affidavit:

1.    … At the time of her death and for the previous decade I believe she would have had no idea as what her assets were apart from her house, or where her other income came from (she did know she got the pension). I had no contact with my mother for the last four of (sic) years of her life.

5. In 2005 – 2006 (I may be mistaken as to the date) after an assessment [the deceased] was diagnosed and a report was made with some form of cognitive impairment. She was assessed by a specialist a gerontologist, psychiatrist, neurologist someone like that, I am not 100% sure which, but she continued to live by herself on Takahe Drive in Christchurch and worked part time until I think 2012.

(b)Some detail was provided in Mr Howell’s affidavit contending that prior to August 2015 issues arose with the deceased over a number of matters. These related to issues over her credit cards which he said had to be taken from her, her willing responses to cold callers, issues over remembering her PIN number on her EFTPOS card, and what are said to be “countless other incidents where you could tell she wasn’t quite with it”.

(c)At paragraph 15 of his first affidavit Mr Howell stated in part:

15.     For the previous 11 years [before August 2014] my mother and I had had a good relationship. Within the next few weeks this changed completely and I believe the subsequent acts listed below were the result of pressure applied by [Julia Mathieson], who would play upon our mother’s fears. I suspect this continued until my mother’s death.

…

e)   On that day [10 September 2014] I contacted Tavendale and Partners by email, raising my concerns that undue influence was being placed upon [the deceased] and that I was not convinced she has the capacity to make such decisions either by way of

i.undue influence by [Julia Mathieson]

ii.   [the deceased] lacked mental capacity (in late 2013 or the first half of 2014 I was present at Christchurch South Medical Centre when [the deceased] was given a Mini-Mental State Examination in which she achieved 13 out of 30)

iii a combination of the two.

[25]            As best I can tell there is no further material before the Court regarding what is said to be this “Mini-Mental State Examination” for the deceased said to be carried out in late-2013 or early 2014.

[26]            What seems clear from the medical evidence which is before the Court here of Dr Elliot in particular is that the deceased had a diagnosis of mild to moderate dementia at least in or around October 2014 and that it is likely this had represented her medical state for some little time before that date.

[27]            Notwithstanding this, the evidence outlined above from Mr Tavendale, an experienced solicitor well-versed in taking will instructions from elderly clients and from Ms O’Callaghan goes some way to support the view that the deceased had sufficient testamentary capacity here in September 2014 to properly make the 2014 will.

[28]            The medical evidence from Dr Elliot, an acknowledged specialist geriatric health practitioner which I outline at paragraph [16](d) above, would also in my view seem to provide some support for the contention that the deceased’s subsequent

diagnosis of mild to moderate dementia of an Alzheimer’s type may not have affected her testamentary capacity to a significant and major degree here.

[29]            Before me, Ms King for the applicants referred at some length to the recent decision of this Court in Public Trust v Dollimore.3 She suggested the Dollimore case bears some resemblance to the situation prevailing here and may provide a useful comparison for this Court, albeit Dollimore is based on its own factual situation.

[30]Nevertheless, similarities between Dollimore and the present case it seems are:

(a)Ms Dollimore as the will-maker in the Dollimore case was diagnosed with dementia before making the will in question. In the present case the deceased was diagnosed afterwards, although it is suggested that dementia had existed for some time earlier.

(b)Both will-makers made their will some years before their death.

(c)Both will-makers were going through a period of routine change at the time. Ms Dollimore was moving from her home in Wellington to a dementia unit in Nelson. The deceased in the present case was housing her son and his family in her home, a conflict and an assault occurred and then the deceased was living with her sister.

(d)Both scored imperfect scores on MMSE.

(e)Both gave will instructions to experienced solicitors who were satisfied as to testamentary capacity.

(f)There was concern about the level of capacity in respect of self-care on the part of both will-makers.

[31]            Indeed it is suggested, and I accept it is arguable here, that Ms Dollimore had less testamentary capacity than did the deceased given that Ms Dollimore scored lower

3      Public Trust v Dollimore [2018] NZHC 3316.

in MMSE in the weeks leading up to her will and she was also living in a dementia care unit at the time of giving her instructions and executing her will. In addition, a lawyer who it seems was taking Ms Dollimore’s will instructions just days before she executed the will in question was not satisfied that she had testamentary capacity and refused to execute a will with her. Finally, the differences between Ms Dollimore’s two wills were more significant  than  those  in  the  wills  of  the  deceased  here.  Ms Dollimore’s will had been described as a “generational shift” in the distributions to be made in that will.

[32]            Despite  all  these  factors  this  Court  in  Dollimore  ultimately  held  that  Ms Dollimore had the requisite capacity when she gave instructions about the changes to her will. It is accepted that every case involving questions of testamentary capacity must be assessed on the particular facts and medical assessments prevailing in that particular situation but notwithstanding this, the decision in Dollimore might be seen as providing some assistance here.

[33]            What seems to me to be of further significance in the present case in addition to the useful medical assessments provided by Dr Elliot, are the following:

(a)It seems to be accepted that wills made previous to the 2014 will of the deceased were made at a time when clearly she had testamentary capacity. This seems to be confirmed in the evidence of Dr Elliot which I note above.

(b)Effectively the specific changes made by the deceased in her 2014 will from the provisions of her 2004 will were straight-forward, able to be explained given the family difficulties which had arisen just prior to that time, and of limited impact given that essentially no substantive change to her earlier bequest principally to the Trust were made.

[34]            As authorities such as Re Simpson,4 and Re Rhodes (deceased) Steward v Meades5 confirm, it is well-settled that a diagnosis of mild to moderate dementia does

4      Re Simpson [2019] NZHC 454.

5      Re Rhodes (deceased) Steward v Meades HC Wellington CP25/02, 7 March 2002, at [42].

not in and of itself prevent a person from having the requisite testamentary capacity to make a will.

[35]            In this case I am satisfied that the deceased’s instructions for her 2014 will were rational and might be seen as appropriate when considering the events that had taken place earlier in 2014. Both the solicitors taking her instructions were satisfied first, that she had capacity and secondly, that the changes made from her 2004 will were indeed rational and properly considered and understood by her. And Dr Elliot’s expert medical assessment here, although not directed specifically at testamentary capacity, in my view is sufficient to indicate that the deceased would have had the requisite capacity to understand and make a consistent and sound assessment of all her circumstances and the consequences of her decision-making such that she would have had testamentary capacity at the time of revising her will on 5 September 2014.

[36]            The applicants therefore have done sufficient here to establish on the balance of probabilities that the deceased had testamentary capacity when her 2014 will was signed. That 2014 will is valid. Taking all matters which are before me together I am satisfied they establish that the deceased, Sylvia Theresa Howell, had testamentary capacity when she made the 2014 will.

Result

[37]            The present application, therefore, succeeds. I grant probate (in solemn form) in relation to the 2014 will.

[38]            As to costs, these are reserved. In the event that counsel for the applicants and the respondent, Mr Howell, are unable to agree on any outstanding issues of costs then these may be the subject of memoranda (maximum of five pages each) filed sequentially in this Court which are to be referred to me and I will then make a decision on costs based upon the memoranda filed and all the other material before the Court.

...................................................

Gendall J

Solicitors:

Tavendale and Partners, Christchurch

Copy to:
Mr J Howell (self-represented)