Estate of Howie

[2014] NZHC 346

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-485-5314 [2014] NZHC 346

IN THE MATTER             of the estate of Ruth Annie Howie

BETWEEN  ANTHONY CLIVE SANDLANT, ROBERT DUDLEY BERRY and MICHAEL MCLEAN TOEPFER Plaintiffs

Hearing:                   On the papers

Counsel:                  NL Penman-Chambers for plaintiffs

NA Farrands for Sashabel Pty Ltd, Annabel Rose Hutchinson and Sasha Daisy Hutchinson

JS Caen for Elaine Margaret Mary Hutchinson

Judgment:                3 March 2014

JUDGMENT OF FAIRE J

Solicitors:           Hesketh Henry, Auckland 1142

Morrison Kent, Auckland

Simpson Grierson, Auckland

Estate of RA Howie [2014] NZHC 346 [3 March 2014]

[1]      The plaintiffs apply for alternative orders granting probate in solemn form of the will of the late Ruth Annie Howie, dated 14 June 2011, or alternatively an order granting probate in solemn form of the will of the late Ruth Annie Howie, dated

14 April 2008.

[2]      The reason for the application is that an issue arises as to the testatrix’s testamentary capacity in respect of the will dated 14 June 2011.  The parties directly affected by this issue are the daughters of the deceased’s nephew, Ben Hutchinson, namely Annabel and Sasha Hutchinson who are the subject of specific requests in the will of 14 June 2011, and Elaine Hutchinson who is the surviving spouse of Owen Hutchinson, who is the son of the deceased’s cousin and who is granted a one- seventh interest in residue in the will of 14 June 2011.

[3]      Counsel for Annabel and Sasha Hutchinson confirm that they support the grant of probate in respect of the will dated 14 April 2008.   That is significant because it is in fact against their interests.

[4]      Elaine Hutchinson’s counsel confirms that she abides the decision of the

court.

[5]      Counsel confirm that there is no further evidence other than that so far filed in affidavit form that could assist the court in determining the testamentary capacity of the deceased as at 14 June 2011.

The relevant legal principles

[6]      The law in relation to testamentary capacity is well settled.  Before a Will is admitted to Probate it must be established that that Will was the product of a sound mind.  In short, the testatrix must, at the time the Will is made, be of sound mind, memory and understanding.1

The issue of testamentary capacity is one of fact.  It must be established in the light of  those  well-established  principles.    Unless  the  court,  on  a  review  of  all  the

1      Banks v Goodfellow (1870) LR 5 QB 549 at 567.

evidence, is able to affirmatively declare itself satisfied of a testatrix’s competence

when she executed the Will the court must declare against its validity.2

[7]      Once a doubt is raised as to the existence of testamentary capacity, an onus rests  on  the  person  propounding  the  Will  to  satisfy  the  court  that  the  testatrix retained her mental powers to the requisite extent.3

[8]      What I am required to do is to ascertain:

a)       If the testatrix understood the nature of the act of making a Will and its effect;

b)Whether she understood the extent and character of the property of which she was disposing; and

c)       Whether she was able to comprehend and appreciate the nature and extent of the claims upon her, both of those who she was including in her Will and those whom she was excluding, and weighed up those claims.

The facts analysed

[9]      No issue is taken as to the deceased’s testamentary capacity in respect of the Will which she signed and which is dated 14 April 2008.  The only issue that arises is as to her subsequent Will, which was executed on 14 June 2011.

[10]     In respect of the Will dated 14 June 2011, the evidence discloses that she gave instructions to legal advisers on 7 June 2011 and signed the document on

14 June 2011.  The solicitor and legal executive who witnessed the signing held the view that she had testamentary capacity.  The solicitor who attended on the deceased said that given the deceased’s age, she normally would have had a doctor certify that the deceased had capacity to make a Will on the day that she did.  She said that she

arranged for Dr Budelmann, the attending doctor at Caughey Preston Rest Home, to

2 `     Brown v Free [1951] NZLR 393 (CA).

3      Peters v Morris CA 99/85, 19 May 1987.

meet with the deceased to assess her capacity.  She said that on the day she visited the deceased to sign her Will she was advised that the doctor would not see the deceased until the following morning.

[11]     On 16 June 2011, Dr Budelmann saw the deceased.   He noted she had no recollection of signing the Will two days prior.  He recorded that she scored 2 out of

10 on a mini-mental status test.   He formed the view that she did not have testamentary capacity on the date that he examined her.  Dr Budelmann reported his findings  to  the  solicitor.     The  solicitor  then  decided  to  instruct  a  specialist geriatrician to assess the deceased’s testamentary capacity.   The geriatrician was Dr Paul Owen.  He had previously provided care for the deceased.

[12]     Dr  Owen  confirmed  that  he  was  available  to  assess  the  deceased.    The solicitor arranged to meet the deceased with Dr Owen on 30 July 2011.

[13]     Dr Owen recorded that the deceased had scored 23 out of 30 on a mental status examination.   He reached the view that at the date of his examination the deceased did not have testamentary capacity.   However, the nursing staff reported that the deceased had been unwell and that she had vomited earlier in the morning. It is as a result of this that the solicitor, in conjunction with Dr Owen, decided that Dr Owen should carry out a further assessment of the deceased.  A further meeting with the deceased was arranged for 17 September 2011.

[14]     At that meeting, the deceased scored 22 out of 30.   Dr Owen asked the solicitor to discuss her Will with the deceased.  The solicitor brought out a copy of the 2008 Will.  The solicitor described the deceased as hazy on some things, but that she showed no desire to change her 2008 Will.  She said that she did not present the deceased with the 2011 as the deceased was firm in her statement that she had no desire to change the 2008 Will.

[15]     Dr  Owen  subsequently  reported  to  the  solicitor  that  he  considered  the deceased had testamentary capacity on 17 September 2011 to confirm her 2008 Will.

[16]     There is, in this case, a clear doubt as to the deceased’s testamentary capacity on 14 June 2011.  On the evidence that has been placed before me I am not satisfied that on that day she had a relevant understanding of the nature of the making of a Will and its effect and, in particular, whether she understood those aspects of her property that she was proposing to dispose of.  I am not satisfied that she had a clear understanding of her obligations to members of the family who were to be the beneficiaries.  These findings lead me to the position that the deceased did not have testamentary capacity at the time she executed the Will of 14 June 2011.  The result is that I must declare against the validity of that Will.

[17]     There is no question as to the deceased’s testamentary capacity at the time she  executed  her  Will  of  14 April  2008.     That  Will,  and  the  circumstances surrounding its execution, fit comfortably within the statement of principle adopted by the Court of Appeal in Peters v Morris where the court said:4

… in the absence of any evidence to the contrary it will be presumed that the document has been made by a person of competent understanding…

[18]     It is only when doubt is raised that the principles which I have referred to in [7] and [8] arise.  That, then, leads me to the position that it is appropriate, subject to one matter, that I make an order of a grant of probate in solemn form to the named executors, namely the first and third-named plaintiffs.

[19]     There was one matter that caused me to delay making the order immediately when I saw counsel.   It concerned the absence of an affidavit from the executors named in the Will of 14 April 2008 to the effect that they agreed to act as executors and will complete accounts as required and complete administration of the estate in the normal way.  Because of that doubt, I directed that such affidavit should be filed by 19 February 2014.  In the event that it is not so filed, the file was to be referred to me to convene an urgent telephone conference.  Happily, such an affidavit was filed

on 28 February 2014.

4      At 25.

[20]     Accordingly,  I  order  that  Anthony  Clive  Sandlant  and  Michael  McLean Toepfer be granted probate in solemn form in respect of the Will of the late Ruth Annie Howie, dated 14 April 2008.

[21]     I reserve leave to the parties to apply for any further orders that may be required to implement the order made in this judgment.

[22]     I have assumed that as this is an application by the administrators of the estate, no order for costs is required.   If there are any special circumstances that indicate that that assumption is wrong, leave is reserved to apply for costs which

may be appropriate.

Faire J