Estate of Hunt
[2025] NZHC 1882
•10 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-2592
[2025] NZHC 1882
UNDER the Wills Act 2019 and Part 19 of the High Court Rules 2016 IN THE MATTER
of the Estate of MONICA MARY HUNT
BY
PETER GERARD FROMONT and LUKE NORMAN CRAWFORD
Applicants
Hearing: 26 May 2025 Appearances:
JWH Little for Applicants
KJ Crossland for Interested Party M G Fromont A Gilchrist for Interested Party J M Fromont
Judgment:
10 July 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 10/07/2025 at 3 pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Sellar Bone & Partners, Auckland Shortland Chambers, Auckland Righteous Law, Auckland
Kiely Thompson Caisley, Auckland Southern Cross Chambers, Auckland
Re ESTATE OF MONICA MARY HUNT [2025] NZHC 1882 [10 July 2025]
Introduction
[1] Monica Mary Hunt died on 16 May 2024, aged 88. Ms Hunt was married for 46 years but she and her husband had no children, and her husband predeceased her. She did, however, have a large extended family including stepchildren, nieces and nephews. She signed a will in May 2023 dividing the main part of her estate between her stepchildren and her nieces and nephews and leaving the residue to named step-grandchildren, great-nieces and nephews, and a cousin.
[2] In the weeks leading up to her death, Ms Hunt was clearly concerned about her will. She made various lists or notes itemising which of her possessions were to go to particular family members. Each of these documents was witnessed by a family member. Most of the changes related to items of relatively small monetary value; but one change was more significant.
[3] Peter Fromont (Peter),1 Ms Hunt’s nephew, deposes that on 10 May 2024, Ms Hunt told him that she wanted to make provision for her niece-in-law, Jillian Fromont (Jillian). Jillian’s husband, Paul Fromont (Paul), had been included as a beneficiary in an earlier will along with his brothers and sister, but died in 2022 and was not named as a beneficiary in Ms Hunt’s most recent will. Peter’s evidence is that Ms Hunt told him she would like to reinstate Paul as a beneficiary at the same level as his siblings. Peter prepared a handwritten note setting out Ms Hunt’s intention and read it to Ms Hunt, who signed it.
[4] If validated as a codicil to Ms Hunt’s will, the effect of the 10 May 2024 note will be to increase one group of beneficiaries from six to seven in number. Each existing beneficiary will have their entitlement reduced by approximately $50,000, while Jillian will receive the bequest that would have been her late husband Paul’s share.
[5] Peter Fromont and Luke Crawford as executors of Ms Hunt’s last will dated 9 May 2023 apply for orders:
1 I refer to members of Ms Hunt’s family by their first names to avoid confusion. I intend no disrespect in doing so.
(a)correcting a drafting error under s 31 of the Wills Act 2007 to accurately identify the term deposit Ms Hunt intended to refer to in a specific bequest;
(b)validating the various lists by which Ms Hunt identified chattels and indicated the person or family to whom she wished to gift them. These documents are not valid wills in terms of s 11 of the Wills Act, so an application is made under s 14 of the Wills Act to validate them;
(c)validating the handwritten note Ms Hunt signed on 10 May 2024 to the effect that her late nephew, Paul, or his successors, should be reinstated in her will at the same level as his siblings. This application is also made under s 14 of the Wills Act;
(d)granting probate in respect of Ms Hunt’s last will in solemn form to the applicants, as modified in accordance with any orders of validation and correction made by the Court; and
(e)confirming that the applicants’ reasonable costs of and incidental to the proceedings are to be met by the estate.
[6] Peter and Mr Crawford take a neutral position on whether orders should be made to correct the will and to validate the various documents as effective codicils. Mark Fromont (Mark), Ms Hunt’s nephew and an interested party, opposes the application to validate the 10 May 2024 handwritten note as a testamentary instrument on the basis that Ms Hunt lacked capacity. Jillian, as an interested party, supports the application to validate the 10 May 2024 handwritten note. The remaining beneficiaries neither oppose nor support the application, though Ms Hunt’s niece, Kathryn Heffernan (Kathryn) has provided an affidavit that appears to generally support Mark’s position.
[7] The only issue in dispute is whether Ms Hunt had testamentary capacity on 10 May 2024 when she signed the note indicating that she wished to add Paul or his
successors as a beneficiary/beneficiaries under her will. Mark’s position is that she did not. Jillian’s position is that she did.
Factual Background
[8] Ms Hunt was a retired nurse who had a brother, Graeme, and a sister, Barbara. She had eight nieces and nephews. By all accounts she was a forthright and capable person who knew her own mind and expressed herself in a direct manner.
[9] Ms Hunt’s last will executed on 9 May 2023 named 23 beneficiaries. There is no dispute that the 9 May 2023 will is validly executed in terms of s 11 of the Wills Act.
[10] The 9 May 2023 will was prepared after Ms Hunt met with her solicitor, Mr Crawford, on 30 March 2023 at her unit at her retirement village (St Vincent unit). She had been a longstanding client of his firm but had previously been assisted by a different partner. Ms Hunt told Mr Crawford she had been diagnosed with stomach cancer in December 2022 and she wanted to get her affairs in order and update her will. She advised that she had no children, but a number of nieces and nephews together with great-nieces and nephews. Ms Hunt also had six stepchildren, being the children of her late husband, Stanley Hunt. Mr Hunt died in 2021.
[11]Ms Hunt gave an overview of her assets, which comprised:
(a)the St Vincent unit worth somewhere between $700,000–$800,000;
(b)a term deposit of approximately $3 million;
(c)various other term deposits and bank accounts worth approximately
$650,000; and
(d)various artworks, jewellery, a car and other small items.
[12] Ms Hunt wanted the $3 million term deposit plus the proceeds of the St Vincent unit to be divided in equal shares between two groups of beneficiaries. The first group
comprised six of her nieces and nephews, and the second group her late husband’s six children. There was to be no gift over. Ms Hunt’s view was that if one of the beneficiaries predeceased her, the others would simply inherit a greater share.
[13] The residue was to go to a list of named individuals which included step-grandchildren, great-nieces and nephews, and a cousin.
[14] Ms Hunt’s previous will signed in 2001 left almost everything to her husband, with a gift over to be shared half between her nieces and nephews and half between her stepchildren. At the time the 2001 will was executed, the “nephews and nieces” referred to in it would have included Paul together with his siblings Stephen, Peter, Mark and Kathryn. They are all the children of Ms Hunt’s younger sister, Barbara. Ms Hunt had three further nieces who would have benefited from the will.
[15] When Ms Hunt met with Mr Crawford to update her will in 2023, she advised Mr Crawford that that Paul had died, and she wished to remove him as a beneficiary. She also wished to remove her niece, Nicola, with whom Ms Hunt was not in contact. That left six nieces and nephews to share in one half of the term deposit and the proceeds of the sale of the St Vincent unit. Ms Hunt wanted the residue of her estate to be divided equally between 11 named individuals, including six great-nieces and nephews, four step-grandchildren and a cousin.
[16] Mr Crawford made a detailed file note setting out Ms Hunt’s instructions in March 2023. He recorded that Ms Hunt felt it appropriate to leave her assets to those who had assisted her. Mr Crawford discussed with Ms Hunt that the change in the will would mean that Nicola and Paul’s children would no longer receive assets under her will. Ms Hunt said the nieces and nephews named, and her great-nieces and nephews, were extremely good to her, and it was appropriate that they receive a benefit under her will. This contrasted with the niece she had no contact with and wished to remove from her will.
[17] Mr Crawford had no concerns about capacity given the clear instructions Ms Hunt provided, and he drafted the will in accordance with those instructions. However, when drafting the will, instead of referring to the term deposit of
approximately $3 million in the ASB account, Mr Crawford wrote: “all money (including interest) standing to my credit at my death in any ASB Bank Limited bank account”. The effect of that was to include in the amount to be divided between the six nephews and nieces and Mr Hunt’s children not only the term deposit of around
$3 million, but also an additional amount of approximately $550,000. Mr Crawford deposes that is not what Ms Hunt instructed or wanted. Mr Crawford understood that Ms Hunt saw the residue of her estate as “her money” that she could choose to distribute as she wished, as opposed to the term deposit in question which she apparently regarded as belonging jointly to herself and her late husband.
[18] Mr Crawford says that there was no discussion about the error when Ms Hunt came to execute the will and he believes that she must have simply missed it as he did. That is the drafting error that the applicants seek to have corrected.
[19] At the time Ms Hunt signed the May 2023 will, she was living at her St Vincent unit. She remained living in that unit until March 2024 when she moved to CHT St Johns Care Home in Epsom (St Johns). For last six weeks of her life, Ms Hunt received palliative care due to her stomach cancer. She became increasingly weak and had significant shortness of breath. She was not eating. Her shortness of breath in particular was managed with increasing doses of opiates (morphine) and sedatives (midazolam).
[20] In early April, Mark helped Ms Hunt to sign a document recording bequeathments of personal items that she wished to make. This document was signed in front of an independent witness.
[21] Before going to St Johns, Ms Hunt spoke to her niece, Kathryn, about her wishes at end of life and after her death. Kathryn took photographs of objects that Ms Hunt wanted auctioned, and prepared a list of “bequeathments”, photographing items in Ms Hunt’s apartment and recording whom Ms Hunt wanted those items to be given to.
[22] Kathryn visited Ms Hunt again on 24 April 2024 and signed and annotated the lists of items. Kathryn emailed a copy of those documents to her brother, Mark, who
advised that Ms Hunt had already signed the documents with him on 4 April 2024. Ms Hunt did not tell Kathryn this when she signed them again on 24 April 2024. The documents signed on 4 April 2024 and again on 24 April 2024 reflect some of the preferences expressed in Mr Crawford’s notes dated 30 March 2023.
[23] On 27 April 2024 Mark helped Ms Hunt with a further list of three items. A gold wedding band was to go to her step-grandson, a small stepladder was to go to Mark and a fur coat was to go to Mark’s daughter, Ellen Fromont.
[24] Ms Hunt signed a further note dated 30 April 2024 gifting champagne glasses to Jillian’s daughter, Sophia Fromont, and further champagne glasses to Jillian. That list was signed with Sarah Fromont (Sarah) present to witness.
[25] On 4 May 2024 Ms Hunt signed a further note saying, “Peter can have Binoculars belonging to Stan all three”. This note was signed by Ms Hunt in the presence of her sister, Barbara.
[26] The executors named in Ms Hunt’s will are Peter and Mr Crawford. Peter lived in Melbourne but came to New Zealand and visited Ms Hunt mid-morning on Friday 10 May 2024 in her room at St Johns. When Peter arrived, Ms Hunt was sitting up in bed talking to a friend. After the friend left, Ms Hunt said to Peter words to the effect of: “I feel bad, I haven’t left anything to Jill in my will, but she’s been so good to me. I don’t know what to do”. Ms Hunt said that she would like to leave Jillian something. Peter asked Ms Hunt what she would like to do, and after some moments of silence, asked Ms Hunt what she had done about his late brother, Paul, in the will. Ms Hunt said, “well I wrote him out”. Peter asked Ms Hunt what she wanted to do, and Ms Hunt said something like, “well I suppose I should reinstate Paul”.
[27]Peter emailed Mr Crawford at 12.40 pm on 10 May 2024 as follows:
Luke, I have been able to visit Monica Hunt today and she was concerned that she had excluded Paul Fromont and his successors from her will. Monica would like Paul or his successors to be reinstated in her will to the same level as Stephen, Peter, Kathryn and Mark Fromont, Paul’s siblings. How can this wish be reflected in Monica’s will please. Kind regards Peter Fromont.
[28] Because it was a Friday afternoon and Peter was unsure if he would receive a response from Mr Crawford, he decided to write a document for Ms Hunt to sign that would reflect his understanding of the discussion. He wrote out a document that said:
I Monica Hunt, on this 10th day of May 2024, state that I would like to reinstate Paul Fromont or his successors on my will as a beneficiary at the same level as Stephen, Peter, Kathryn and Mark Fromont.
[29] Peter read the note to Ms Hunt and then passed it to her. Ms Hunt signed it and handed it back.
[30] Shortly after this, Jillian and her daughter Sarah arrived to see Ms Hunt. When they arrived, Ms Hunt ceased discussing her will. Peter’s evidence is that she said to him, “you’ll look after that for me won’t you”, referring to the change to the will.
[31] Peter took a photograph of the note at 2.14 pm and emailed it to Mr Crawford at 2.16 pm, writing: “Luke please find a picture of a note I drafted at Monica’s request which she then signed. Kind regards Peter Fromont”.
[32]Mr Crawford responded by email at 3.48 pm:
Hello Peter,
I have been in meetings most of today so only just seen these emails.
The first question is does Monica have mental capacity? For us to update her will at this point in time this would need to be certified by a doctor (preferably a specialist, specialising in capacity issues).
If she does have capacity then I could come to visit her early next week and update the will.
The issue with the note is that, given the provisions of the will, it is not 100% clear. Unfortunately I can only provide a copy of the will to you if she has lost capacity.
Please let me know. Thanks
Luke Crawford.
[33] Ms Hunt’s health deteriorated that weekend. On 12 May 2024, staff at St Johns advised Peter that a doctor was likely to visit Ms Hunt the next day, Monday 13 May 2024. Peter prepared a note addressed to the doctor explaining that Ms Hunt
had asked if he would arrange a change to her will and explaining what Mr Crawford had said about needing Ms Hunt’s capacity to be certified by a doctor.
[34] Dr Peter Zink visited on Monday 13 May 2024, but it was obvious at that point that Ms Hunt had deteriorated and did not have the capacity to meet lawyers to change her will.
[35] Dr Zink had taken over Ms Hunt’s care from the time she moved into St Johns at the end of March 2024. The last occasion prior to 13 May 2024 that Dr Zink had seen Ms Hunt was on 1 May 2024. Ms Hunt is described as having been “lucid, knowledgeable and in complete control of her faculties” on that occasion. Although no formal capacity assessment was done, Dr Zink had no concerns about her capacity or ability to understand matters on that occasion.
[36] By 13 May 2024 Ms Hunt had seriously declined and was dying. By 14 May 2024, Ms Hunt was unconscious. She died on 16 May 2024.
The evidence
[37] Affidavit evidence was provided by Mr Crawford, Peter, Mark, Kathryn, Jillian and Sarah, as well as Mark’s wife, Ann Byford (Ann).
[38] Dr Zink was called as a witness by Jillian, and Dr Mark Fisher was called as a witness by Mark.
[39] Mark sets out that he is the youngest of five children of Barbara Fromont, who was Ms Hunt’s sister. Mark says that he and Ms Hunt shared a particularly close relationship, and he spent many holidays with Ms Hunt and her late husband at their bach. This bond continued as he raised his own family, often holidaying with Ms Hunt and her late husband and spending Christmases with them. Mark says that Ms Hunt often asked for his help with significant tasks, including clearing out the bach after it was sold in 2016, and helping to clear Ms Hunt’s home in Remuera when she and her late husband moved into the St Vincent unit in 2018. Mark says he was also involved in organising Ms Hunt’s funeral. Mark says that he and Ms Hunt remained close until her final days, and he visited Ms Hunt about twice a month to help with various tasks.
[40] Mark describes Ms Hunt as a person who knew her own mind and was deliberate and decisive. He says she was an opinionated person and not afraid to express what was on her mind.
[41] Mark says that Ms Hunt’s health began to noticeably decline in 2023. Mark says he was the primary contact for her cancer diagnosis and Ms Hunt asked him to be present for that. Mark describes Ms Hunt struggling to eat in the weeks leading up to her move to St Johns. He says that he had a gentle but frank conversation with her about moving into a care facility, which she initially resisted. When Ms Hunt did agree to move to St Johns, Mark helped her to move and visited her at least twice a week. Mark says that in the first two weeks at St Johns, Ms Hunt was able to get out of bed; however, her physical health deteriorated rapidly after that. Mark says that by early May 2024, Ms Hunt was bedridden.
[42] Mark describes Ms Hunt as having been “clear-minded and decisive” during her early weeks at St Johns. Shortly after moving to the care facility, she met with a funeral director to organise her funeral arrangements and gave clear instructions about her wishes. Mark says that he carried out her wishes despite some opposition from family members because the timing of the funeral did not suit travel arrangements. Mark says that Ms Hunt’s mental state appeared to fluctuate as her health declined. On one visit, Ms Hunt described vivid and erotic dreams to his wife, Ann, and Ms Hunt’s great-niece, Hannah. Mark describes this as entirely out of character for Ms Hunt, who was always a “prim and proper” person in his experience. Another incident caused Mark concern. At the end of April 2024, Ms Hunt complained to him about “millions of tiny ants” biting her in bed and causing ripples in the mattress. Mark attributed these “hallucinations” to morphine. Mark says that by early May, Ms Hunt would often drift in and out of consciousness. During one visit she appeared to be asleep while her visitors conversed around her bed, but suddenly opened her eyes, made an unrelated comment and drifted off again. Mark describes Ms Hunt as having “waves of lucidity” but then “waves of increasing confusion” during May 2024. Mark says that by 10 May 2024 Ms Hunt was heavily medicated, bedridden and semi-lucid.
[43] Mark says that the frequency of Jillian and Sarah’s visits to Ms Hunt appeared in his opinion to be “a bit over the top”. He says, “they always seemed to be there and were often drinking”. Mark says that while appreciating Jillian’s intentions and efforts to be present, he is concerned that Ms Hunt’s vulnerable state, combined with the circumstances of her health, may have influenced decisions that were uncharacteristic of her usual deliberate and considered nature.
[44] Mark says that his brother Peter did not have as a good an opportunity to observe the significant changes in Ms Hunt’s health and mental state, having seen her in mid-March 2024 and then not until 10 May 2024. Mark says that he loved Ms Hunt deeply and respected her wishes, but firmly believes that the handwritten note dated 10 May 2024 does not reflect Ms Hunt’s true and settled intentions. For that reason, he opposes validation of the 10 May 2024 handwritten note.
[45] Mark’s wife Ann says that, on a visit in late April in the presence of Ms Hunt’s great-niece, Ms Hunt talked about an erotic dream which she described in detail, and which Ann felt was out of character.
[46] Kathryn is Ms Hunt’s oldest niece and a registered nurse working in aged care in Australia. Kathryn sets out in her affidavit her visit with Ms Hunt on 24 April 2024, when she signed an annotated note of bequeathments that Ms Hunt wished to make. Kathryn refers to an acronym used in aged care to assess delirium and highlights risks that applied to Ms Hunt when Kathryn saw her in late April 2024. These include that Ms Hunt was having morphine regularly for generalised pain, was barely eating and was drinking very little, among a number of other factors. Kathryn says that she believes Ms Hunt continued to have capacity to make everyday decisions about the activities of daily living, including in her final weeks. Kathryn says that Ms Hunt still appreciated “a witty remark”, enjoyed her visitors, recognised people and remembered their names. But Kathryn doubts that Ms Hunt could have added up a list of double-digit numbers or that she would have scored higher than 20 in the Mini Mental Exam (mild/moderate impairment) that Kathryn refers to her in her affidavit. Kathryn says she strongly doubts that Ms Hunt could have managed the cryptic crosswords that she used to do, or that she would have been able to give directions to get to a destination from her previous residence. Kathryn says that because of her profession
as a registered nurse, she has felt obligated and duty-bound to speak up about her concerns.
[47] Jillian sets out in her affidavit that she was married to Paul from 1988 until 2019. She and Paul separated after 31 years of marriage but remained close. Jillian says that she also remained close to Ms Hunt after her separation from Paul. Jillian says that for many years prior to Ms Hunt going into St Johns, she and her daughter Sarah would regularly visit Ms Hunt at her home. Jillian and Sarah did the gardening at Ms Hunt’s house and would visit approximately fortnightly for either lunch or tea after the working day. After Ms Hunt went into St Johns, Jillian visited most weekdays. One of the reasons for the frequent visits was that Ms Hunt had very high standards of personal hygiene. She wore quality clothes and was particular with what she wanted. Jillian says Ms Hunt specifically requested that Jillian do all her washing by hand.
[48] Jillian says that Ms Hunt was able to get out of bed much more than two weeks prior to her death, and that subsequently, it was Ms Hunt’s decision to stay in nightclothes and not get dressed every day. Jillian says she never discussed being included in Ms Hunt’s will directly with her. There was one discussion over Easter 2024 when Jillian was talking about work she wished to have done around her house, and said she would not be doing anything until she was able to get the money together. Ms Hunt replied something to the effect that: “everything would be sorted once the golden angel turns up”. Ms Hunt identified the “golden angel” as “Peter”. Jillian understood that Ms Hunt expected Peter to arrive and make changes to arrangements that she was planning. That is the only discussion that Jillian had with Ms Hunt that had anything to do with Ms Hunt changing her will.
[49] On 10 May 2024 Jillian arrived at St Johns and now understands that this was after Ms Hunt had signed the handwritten note with Peter. Jillian says she recalls that, on her arrival, Ms Hunt was having a conversation with Peter, which stopped as she walked into the room. She says Ms Hunt flicked her hand at Peter and said, “so you will deal with that?”. Jillian says Peter acknowledged that he would. Jillian says she was unaware at the time of the matter that they had been discussing, and of the signed note. Ms Hunt asked if someone could go back to her St Vincent unit to pick up her
hand warmers. She was able to say exactly where they were and Jillian says she has no doubt about Ms Hunt’s ability to understand matters, or her recall, memory or lucidity on 10 May 2024.
[50] Jillian accepts that from Monday 13 May 2024 Ms Hunt lacked capacity; but says that on 10 May 2024 Ms Hunt was “sharp and alert”. In response to matters raised in Mark’s affidavit, Jillian disputes the amount of time that Mark spent with Ms Hunt. She finds the suggestion that Mark visited Ms Hunt fortnightly to be contrary to her observations. Jillian says that when Ms Hunt and her late husband were living in their home in Remuera, she and Sarah worked there “quite a bit”, and she does not recall Mark ever being there. Jillian says that after work they would sometimes share a cold beer with Ms Hunt and her husband. Jillian says that Mark, his mother Barbara, Sarah and herself all helped to move Ms Hunt into St Johns.
[51] Jillian disagrees that Ms Hunt’s behaviour when she described a vivid and erotic dream was out of character, or that she was always “prim and proper”. Jillian says that Ms Hunt regularly told her, and her daughters, stories of her travels in her younger days. Jillian doubts that she would have told these stories to a male; but does not find what Ms Hunt told Ann about the dream to be out of character. Jillian says that the ants that Ms Hunt described were not hallucinations because there was an ant infestation at the care home. Sarah bought ant bait and Jillian had Ms Hunt’s bedding changed. Jillian says this was still happening by 10 May 2024, when she stayed over with Ms Hunt. Jillian says she helped care staff to roll Ms Hunt over as ants were again in her bed.
[52] Jillian says that she and her daughter Sarah made regular visits to see Ms Hunt out of friendship, care and companionship, and had a long association with her over many years. She says the reference in Mark’s affidavit to them “often drinking” needs to be put into context. Ms Hunt had a birthday whilst at St Johns, and champagne was shared by everyone who was there. On two or three other occasions, Jillian and Sarah took a beer in to share after work, which went back to a tradition of sharing a beer with Ms Hunt and her late husband when they used to garden for her at her Remuera home. Ms Hunt asked Jillian to bring the beer in. Jillian and her daughter drove home afterwards, and one beer was all that they had.
[53] Kathryn deposes that she was surprised that Jillian was not originally a beneficiary of Ms Hunt’s will, but was equally surprised that Mark’s first wife, Robyn Fromont (Robyn), was excluded. Kathryn concluded that Ms Hunt had drawn a line and had decided that only her and her late husband’s blood relatives would inherit.
[54] Jillian distinguishes her position from that of Mark’s first wife, saying that she and Paul separated but did not divorce. Neither of them remarried and both remained close to Ms Hunt. By contrast, Mark and his first wife separated 10 years earlier and Mark remarried. Jillian says that excluding her from the will impacted her and Paul’s children, whereas excluding Robyn had no impact on Mark and Robyn’s children.
[55] Jillian’s daughter Sarah says that her immediate family was always close to Ms Hunt, with herself and her mother being closest. Sarah confirms Jillian’s evidence that they were regularly at Ms Hunt’s Remuera property and regularly socialised with Ms Hunt and her late husband after working in the garden. Sarah says that she is also unaware of her uncle Mark visiting Ms Hunt on any occasion when they were at the Remuera address. Sarah says that when she and her mother visited on 10 May 2024, Ms Hunt was “totally with it” and knew what was happening and what she wanted — including giving directions about items to be picked up from her St Vincent unit. Sarah says that Ms Hunt appeared alert and coherent, and she and her mother spent at least an hour discussing their workday and dinner plans. Sarah confirms that when she and her mother arrived on 10 May 2024 Peter was present, and that the conversation stopped with Ms Hunt saying to Peter words to the effect: “so you will deal with that?”, which he acknowledged.
[56] Sarah also disputes that Ms Hunt’s descriptions of vivid and erotic dreams were out of character, saying that Ms Hunt told her and her sisters about her OE in her younger days and some of the activities she had got up to. Sarah confirms her mother’s evidence about having one beer with Ms Hunt on occasion while she was in the care home. Sarah also confirms the ant problem at the care home, and that she bought ant bait to deal with it and helped to change Ms Hunt’s bedding.
[57] Peter also provided affidavit evidence. He deposes that he is a chartered accountant and a member of Chartered Accountants Australia and New Zealand. He lives in Melbourne and was not surprised to learn that he was named as an executor of Ms Hunt’s will, saying that this reflected their relationship and the trust and confidence Ms Hunt had in him.
[58] Peter describes his visit to Ms Hunt on Friday 10 May 2024. He describes the conversation that he had with Ms Hunt, who told him that she felt bad because she had not left anything to Jillian despite the fact that Jillian had been so good to her. Ms Hunt said that she would like to leave Jillian something and eventually said that she would like to “reinstate Paul” in her will. Peter says that this made sense to him as a way to provide for Jillian, as Peter assumed (correctly) that Jillian would benefit as Paul’s widow.
[59] Peter describes in his affidavit emailing Mr Crawford and then writing the handwritten note setting out Ms Hunt’s wishes as expressed to him. Very shortly after Ms Hunt signed the note, Jillian and Sarah arrived. At that point, Ms Hunt said to Peter words to the effect of: “you’ll look after that for me won’t you”.
[60] Peter says that in the note he wrote for Ms Hunt, he wrote “successors” rather than “successor”. He says he does not know why he did that, and he is not sure that he thought about it. Ms Hunt was clear that she wanted to benefit Jillian specifically.
[61] Peter has no doubt about Ms Hunt’s mental capacity on 10 May 2024. She seemed to him to be sharp and alert. She knew, for example, not to mention the issue they had been discussing when Jillian and Sarah arrived. Peter says that Ms Hunt went downhill over the following weekend. Peter was present when Dr Zink visited on Monday 13 May, and it was obvious at that point that Ms Hunt did not have capacity to meet lawyers to change her will.
[62] Peter has also provided evidence about the various notes signed by Ms Hunt in late April 2024 indicating particular items which she wished to go to particular individuals or families. Many of the notes prepared by Ms Hunt used first names only, and Peter has annexed an appendix to his affidavit confirming the last names of those
who appear in Ms Hunt’s lists. Appendix A of his affidavit is a table containing a summary and interpretation of the various notes. The table excludes those items going to the Hunt family, referred to as “the Hunt family list”. Peter says that from his observation, Ms Hunt’s mental condition only went downhill a few days after 10 May 2024 and he does not believe there would have been any issue with her mental condition at the time she signed the documents in late April and early May 2024. Peter did not see Ms Hunt until 10 May but did talk to her on the phone on 31 March and remembers her being lucid and alert.
[63] There are 23 beneficiaries named in the will in total. In Appendix B to his affidavit, Peter provides a table listing each beneficiary of the will and their email address. Peter emailed each beneficiary to check they were happy to be served with these proceedings by email and all agreed. Peter says that if the lists of bequests are validated, none of the items which would go to individuals not already named as beneficiaries are of any significant value. He does not expect any of those items to be worth over $1,000.
Medical evidence
[64] Dr Zink swore an initial affidavit dated 4 April 2025 and deposed that he is a general medical practitioner with a particular interest in geriatrics and older people’s health. He has a diploma in geriatrics and latterly has specialised in older people’s health. Approximately 70 per cent of his current practice is in older people’s health. Dr Zink said he regularly does capacity assessments and believes he has considerable expertise in the area. Dr Zink gave evidence as both a witness of fact and as an expert.
[65] Dr Zink said that Ms Hunt was his patient from the time she moved into St Johns in March 2024 and that it was clear at that time that she was nearing the end of her life. Dr Zink said that he did not see Ms Hunt on 10 May 2024. The last occasion prior to 13 May 2024 that Dr Zink saw Ms Hunt was on 1 May 2024 when he found her to be “lucid, knowledgeable and in complete control of her faculties”.
[66] Dr Zink said that he was due to visit Ms Hunt on Monday 13 May 2024 and prior to that visit received a note from Peter regarding capacity.
[67] When Dr Zink visited Ms Hunt on 13 May 2024, it was clear that she did not have capacity to meet with lawyers to change her will. Dr Zink said he was informed by staff at the care home that she had deteriorated over the weekend (11– 12 May 2024). Dr Zink subsequently received a request from Peter to prepare a statement regarding capacity. Dr Zink prepared a statement assessing that Ms Hunt was likely to have had capacity to alter her will in early May 2024 (certificate as to capacity).
[68] Dr Zink confirmed that he subsequently corresponded with Mr Crawford and confirmed that as of 1 May 2024, Ms Hunt was lucid, articulate and in full control of her faculties. Dr Zink said that his assessment was not conducted with the specific assessment of capacity regarding a change to a will; however, Dr Zink expressed the view that, retrospectively, he would deem Ms Hunt to have been fully competent. Dr Zink said in his affidavit that he relied on nursing staff reviews and noted that, whilst Ms Hunt’s health declined over the next 12 days, from 1 May 2024 her cognitive and mental functioning remained intact until around Sunday 12 May 2024. Dr Zink noted that Peter’s observation that Ms Hunt appeared to be mentally alert and competent on 10 May 2024 was consistent with the daily nursing notes and Ms Hunt’s interactions with care staff. Dr Zink said that by 13 May 2024, Ms Hunt had seriously declined and was in the process of dying. In his affidavit, Dr Zink deposed that it is always difficult for any medical practitioner to provide a retrospective opinion. He said that no formal assessment was ever undertaken, and it is often impossible to assess capacity without an interview. In the affidavit sworn on 4 April 2025, Dr Zink said that based on seeing Ms Hunt on 1 and 13 May 2024, and based on patient notes and advice from Peter, he believed it was more likely than not that Ms Hunt had capacity on 10 May 2024. The affidavit finishes:
As best I can – and bearing in mind that I was never asked to do a formal capacity assessment – I remain of the view that is it likely that Monica would have had capacity at the time of the 10 May 2024 note.
[69] Dr Zink subsequently reviewed evidence provided by Dr Fisher and revised his position. He made alterations to his affidavit and confirmed on oath in the witness box that the alterations were true and correct. He signed the affidavit in the witness
box although it was not witnessed as an affidavit. The changes are set out in capitals in paras 14,17,20, 21 and 23 of the affidavit. The change to para 14 reads as follows:
Based on information from others, and my own earlier assessment, I assessed that Monica was likely to have had capacity to alter her Will on 10 May 2024
– but not subsequently. NOTING AGAIN THAT MY ASSESSMENT WAS MADE IN A SITUATION OF A RETROSPECTIVE [JUDGEMENT], HAVING NEVER BEEN REQUESTED TO PERFORM A TASK-SPECIFIC ASSESSMENT OF HER MENTAL CAPACITY AND NOT BEING AWARE OF ANY BACKGROUND DETAILS OF MONICA’S ESTATE OR CIRCUMSTANCES.
[70]At para 17, the amended affidavit reads:
I relied on nursing staff reviews, and noted that, whilst Monica declined over the next 12 days, that, from 1 May 2024 through to 13 May 2024, her cognitive and mental functioning [APPEARED] TO REMAIN intact until around Sunday, 12 May 2024.
[71]At para 20 the amended affidavit reads:
It is always difficult for any medical practitioner to provide a retrospective opinion. No formal assessment was ever undertaken. It is GENERALLY NOT RELIABLE to assess capacity without a TASK-SPECIFIC interview.
[72]Paragraph 21 of the amended affidavit reads:
Based on me seeing Monica on 1 and 13 May 2024, the patient notes that I reviewed, and the advice from Peter Fromont, I believe it is REASONABLY likely than not that Monica had capacity on 10 May 2024.
[73]Paragraph 23 of the amended affidavit reads:
As best I can – and bearing in mind that I was never asked to do a formal capacity assessment – I remain of the view that it is likely that Monica would MAY HAVE HAD capacity at the time of the 10 May 2024 note.
[74] Dr Zink said in evidence that he had made what he described as “mild revisions” having seen Dr Fisher’s affidavit. He confirmed in evidence that he was Ms Hunt’s doctor for only the last 16 days of her life. Dr Zink said that he chose to be vague as to the date when Ms Hunt had capacity in the certificate as to capacity that he prepared initially because he had never in his previous practising experience of 35 years been asked to produce a certificate of mental capacity retrospectively and without the opportunity to have examined the patient with the specific intent of
assessing mental capacity. Dr Zink confirmed that he reviewed nursing notes before providing the retrospective certificate as to capacity. He estimated that he spent about 15 minutes reviewing nursing notes and speaking to nursing staff. He did not refer to the notes in any detail in the affidavit, but I have no doubt that he was doing his best to give truthful and reliable evidence, and I accept what he said about his interactions with the nursing staff.
[75] Dr Zink said that before he gave the certificate as to capacity to Mr Crawford, he did not understand the change that the 10 May 2024 note made to the will. He agreed that he was unable to assess the significance or insignificance of the change, and he agreed that in assessing competence, it is relevant to consider the difficulty or ease of the task at hand. Dr Zink said that the nursing notes did not provide enough information to make an assessment of competence, clarity or lucidity but further information was given to him verbally by staff. Dr Zink said that he saw Ms Hunt on 1 May 2024 for approximately 12 minutes. He was referred to a record in the nursing notes that “Monica has no recollection of hospice Poi CNS visit from two weeks ago” and agreed that, based on that particular statement, not all of Ms Hunt’s memory was intact “at that particular time, in that particular form”.
[76] Dr Zink said that when he saw Ms Hunt on 1 May she was knowledgeable, being an ex-nurse, about the situation she was in; she was palliative and close to death; and she was aware of being cared for, the staff that were looking after her, and family and visitors. She was able to express her wish to die soon and was able to express her level of comfort or discomfort. Dr Zink said it was not possible to accurately assess capacity given that he did not interview Ms Hunt for the specific purpose of a capacity assessment at any time, and that there are certain requirements or guidelines that would normally apply for such medical assessments. Dr Zink acknowledged it was impossible to retrospectively apply the normal rigor usually applied when assessing capacity. He said that he no longer believed that an informal retrospective assessment was an appropriate way to have assessed Ms Hunt’s capacity. Dr Zink agreed that an apparently lucid patient may lack testamentary capacity if they cannot recall, use or weigh information. He agreed that making a retrospective assessment of capacity without any interview and without contemporaneous notes is not consistent with best
clinical practice. Dr Zink accepted Dr Fisher’s specialist expertise as a special geriatric psychiatrist.
[77] Speaking about medication, Dr Zink said that he had not observed any escalation in the amount of medication given to Ms Hunt between 9 and 10 May as charted by care home staff. Her use had escalated between 8 and 9 May but did not escalate further and dropped on 9 and 10 May. Dr Zink said that although we now know that on 10 May Ms Hunt was in the final days of her life, predicting that timeframe on 10 May would have been difficult and it was not at all evident how quickly or slowly she would deteriorate from 10 May 2024. Dr Zink agreed that Ms Hunt was emaciated and was unsurprised that she was dehydrated, saying he would expect that. Dr Zink said that there was a rapid deterioration between 11 May to 13 May 2024.
[78] The nursing notes show that Ms Hunt was being treated as competent to make medical decisions between 1 May and 12 May 2024. On 1 May 2024 the notes read: “Monica has considered and declined assisted dying although she has expressed she wants to die as soon as possible”. On 6 May 2024, Ms Hunt is recorded as refusing an enema and saying: “[I’m] not eating and so [I’m] not constipated”. On 9 May 2024 Ms Hunt again declined an enema and the nurse recorded: “advised Monica that she might feel worse tomorrow due to bloating/fullness”. Dr Zink said that these are not the sort of notes you would see if a person was not able to make decisions and that in his opinion, Ms Hunt did have at least intermittent clarity.
[79]Dr Zink said that on 1 May 2024 when he saw Ms Hunt, she was:
..alert, oriented, could understand who I was and what I was there for and she was quite brusque and didn’t really want to talk to the doctor, which I interpreted her as, as just her baseline, strong-willed, nursing sort of characteristic, previous behaviour which I endorsed later on when talking to her previous GP on a casual basis several days later. But she was able to communicate clearly, was able to answer questions relating to her symptom management, her symptom control, and she was in agreement with the staff, were doing the best they could to look after her cares at the time.
[80]Dr Fisher was called by Mark to give expert evidence.
[81] Dr Fisher is a consultant psychiatrist and clinical head at the Mental Health Services for Older People, Te Whatu Ora Counties Manukau. He is also in private practice. There is no question of Dr Fisher’s expertise. He has over 30 years of experience in psychiatry, specialising in the psychiatry of old age. His expertise includes capacity assessments with a particular focus on testamentary capacity. He is a published author on capacity assessment and has served as a lecturer and commentator on the Protection of Personal and Property Rights Act 1988.
[82] Dr Fisher’s opinion is based on a review of materials and the application of principles established in Banks v Goodfellow2 and subsequent case law. In his opinion, Ms Hunt lacked the requisite capacity to execute the handwritten amendment on 10 May 2024. Dr Fisher’s conclusion is based on:
(a)the complex nature of the decision being made;
(b)evidence of cognitive decline due to Ms Hunt’s end-of-life condition, compounded by medications; and
(c)observations in the medical and nursing notes of fluctuating lucidity, impaired memory and inattention.
[83] Annexed to Dr Fisher’s affidavit is his report which he confirmed in evidence. Dr Fisher said in his report that the 2023 will was of moderate complexity with three groups of beneficiaries according to a plan and strategy known only to Ms Hunt in 2023. The decision in May 2024 to add another beneficiary to one group as a successor of her deceased nephew, Paul, was only one option for including the additional beneficiary. The report says that the decision-making around this late amendment should be viewed as a cognitive and decision-making task of moderate complexity.
[84] Dr Fisher said that Ms Hunt was receiving palliative care for the last six weeks of her life and during this time she regressed down the expected pathway physiologically towards death. She became increasingly weak, anorexic and had significant shortness of breath. The latter in particular was managed with increasing
2 Banks v Goodfellow (1870) LR 5 QB 549.
doses of opiates (morphine) and sedatives (midazolam) which were nonetheless relatively modest amounts. Dr Fisher says Ms Hunt’s final period of deterioration “perhaps commenced around 7 May 2024, with her becoming bed-bound and her medication doses increasing”.
[85] Dr Fisher says that Ms Hunt’s mental state would have been typical of this phase of her dying, compounded by medications. She would have had long periods of drowsiness, fluctuating attention, impaired memory and concentration, consistent with her brain slowly shutting down and her general physiology becoming deranged (including the hypoxia observable).
[86] Dr Fisher says that retrospective analysis indicates on the balance of probabilities that Ms Hunt was unlikely to have had the cognitive capability to remember information, or to understand and use or weigh that information in making moderately complex testamentary changes to her will.
[87] The nursing notes overnight from 9–10 May record Ms Hunt requesting morphine at 12.15 am. She requested more again at 12.25 am “so that she never has to wake up again”. She expressed that she wanted to die. She was given an extra
2.5 mg of morphine for comfort only and was told that staff could not comply with her request. It is recorded that Ms Hunt understood that but continued to ask. She asked for morphine again at 2.30 am and was given 5 mg morphine and 2.5 mg midazolam. Ms Hunt then settled to sleep and remained asleep for the night.
[88] The following morning (10 May), Ms Hunt is recorded as having been comfortable. The notes say that she was eating and drinking well. On 11 May, Ms Hunt is noted to have been more settled than the previous night. Her niece, Jillian, was with her overnight. During that day, Ms Hunt is recorded as having been alert and surrounded by visitors.
[89] Dr Fisher records that Ms Hunt had no underlying age-related cognitive issues such as dementia. There is no record of her having had significant mental health issues at any time.
[90] Dr Fisher’s opinion was that medication would not have been a significant factor impairing Ms Hunt’s capacity. He says that at the doses administered, the medication would not have helped her cognition but may not have harmed it profoundly, particularly if symptoms of agitation or shortness of breath were then brought under control. Most of the doses administered were modest. Dr Fisher records a significant increase in the dose of morphine on the night of 9–10 May 2024; but Dr Zink, having reviewed the notes, said that step up occurred overnight between 8–9 May 2024. Dr Fisher says it is possible that increased medication was linked with a drop in Ms Hunt’s cognitive functioning but most of her impairment would have been secondary to the fact that she was dying and had started to further deteriorate. Dr Fisher’s opinion was that Ms Hunt’s mental state was mostly determined by her passage towards dying. He says there appeared to be a step-wise deterioration around 7 May judging by her increasing need for PRN morphine and midazolam (on top of her, by then, regular long-acting morphine twice daily). This indicates escalating agitation and shortness of breath which is evident in the nursing records. Dr Fisher says that this stage of the dying process is associated with impairment of memory, attention and concentration, and the person often lacks the energy to stay through a conversation. They are most often drowsy. They often do not have the energy to focus or do any form of significant processing and are no longer able to use or weigh multiple options. Memory is also impaired so that it cannot be presumed that Ms Hunt was able to recall the detail of her 2023 will or her thinking behind it.
[91] Dr Fisher gives the opinion that Ms Hunt is unlikely to have had testamentary capacity on 10 May 2024, particularly as the decision made on that day was moderately complex in its nature. Dr Fisher confirmed in evidence his opinion that on the balance of probabilities, Ms Hunt would not have had capacity given her physical and mental health status insofar as that could be worked out.
[92] In a reply affidavit dated 4 April 2025, Dr Fisher deposes that he has read Dr Zink’s affidavit and responds that neither he nor Dr Zink had the opportunity to examine Ms Hunt on 10 May, and it is important to note that no formal assessment of testamentary capacity was undertaken on that date. Dr Fisher says that Dr Zink infers that because Ms Hunt appeared lucid and capable on 1 May and did not present that way on 13 May, she must have retained full testamentary capacity until at least 10 May
with a sudden deterioration occurring thereafter. Dr Fisher says that in contrast, based on extensive clinical experience with older persons, it is his opinion that any cognitive decline is more likely to have occurred gradually rather than suddenly, and Ms Hunt’s capacity was more likely than not already compromised on or before 10 May.
[93] Dr Fisher criticises Dr Zink’s opinion, saying Dr Zink appeared to be applying a generalised or theoretical understanding of testamentary capacity — that is, the basic legal standard that a person must understand the nature and effect of a will, the extent of their property and the claims of those who might expect to benefit from the will. Dr Fisher says, however, that the abstract standard cannot be reliably applied without proper understanding of the specific circumstances and the actual decision-making task that Ms Hunt faced at the time.
[94] Dr Fisher does not regard the decision that Ms Hunt was making as straightforward, saying it involved deliberations over deviating from prior decisions. Dr Fisher says the more complex the decision, the greater the cognitive load placed on the individual and therefore the more robust their mental faculties must be for them to meet the threshold of capacity. Without understanding the precise instructions Ms Hunt was giving or considering, and without a contemporaneous formal assessment, Dr Fisher considers it unsafe to assume that her capacity remained intact simply because she appeared lucid on 1 May. He says that lucidity in conversation is not equivalent to testamentary capacity, particularly where emotionally charged or legally complex decisions are being made. Dr Fisher remains of the view that Ms Hunt’s cognitive capacity had likely deteriorated by degrees in the days leading up to and including 10 May, and that this more likely than not impaired her ability to make sound decisions of the kind required.
[95] Under cross-examination, Dr Fisher acknowledged that both he and Dr Zink were being asked to make an ex-post facto analysis of what may or may not have been the case on 10 May 2024. Dr Fisher did not know anything about Ms Hunt before undertaking the assessment and necessarily relied on information provided in the affidavits. Dr Fisher accepted that Ms Hunt’s deterioration accelerated over the weekend of 11–12 May 2024 but said in his view it commenced prior to the weekend. Dr Fisher said that he believed Ms Hunt would be accorded the presumption of
capacity prior to 1 May because there was no apparent history of other forms of cognitive impairment. Dr Fisher was asked whether his opinion would be affected if Ms Hunt had made the decision to include Jillian in her will earlier; specifically, the end of March or beginning of April when Ms Hunt had a discussion with Jillian and said that everything would be sorted out when Peter arrived. Dr Fisher agreed that if the decision were just to implement something that had already been decided, it would not be so complex, “as long as in an ideal world that she could’ve explained her thinking to the, an assessor on 10 May”.
[96] Dr Fisher said that from his perspective, it was important that Ms Hunt could articulate her reasoning on 10 May, the day of signing the document. Dr Fisher also agreed that the fact that Ms Hunt stopped discussing alterations to her will when Jillian and her daughter came into the room on 10 May showed some degree of insight. She knew “who the characters were and what was proposed”, and she knew it was not appropriate to talk about it in their presence.
Discussion
[97] The application under s 31 of the Wills Act requesting correction of cl 3.1 of the will so as to delete “all money (including interest) standing to my credit at my death in any ASB Bank Limited bank account” and insert in its place “all money (including interest) standing to my credit in ASB term deposit [redacted]” is not opposed by any beneficiary.
[98] Mr Crawford’s evidence on the matter is clear as to Ms Hunt’s intentions. She wanted her (approximately) $3 million term deposit and the value associated with her St Vincent unit to be split between the nieces, nephews and stepchildren named in cl 3.1 of the will. The residue was to be split between the beneficiaries identified in cl 4.2 of the will. Mr Crawford explains Ms Hunt’s reasoning. She saw the residue as “hers” alone which she could choose to distribute as she wished, as opposed to the large term deposit which she saw as hers and her late husband’s jointly. There was a clear logic to what Ms Hunt wanted to achieve.
[99] Section 31 of the Wills Act provides that the Court may make an order correcting a will if satisfied that the will does not carry out the will-maker’s intentions
because it contains a clerical error,3 or does not give effect to the will-maker’s instructions.4 I am satisfied that the correction sought is appropriate to give effect to Ms Hunt’s instructions and I will make that order as sought.
[100] The next orders sought would validate under s 14 of the Wills Act the following documents:
(a)The “Hunt Family List”, which appears to have been prepared in late April. This is a five-page document listing various items and indicating which of them were to go to Ms Hunt’s six living stepchildren, and which were not — for example, some of the items are recorded as “Monica’s”, or as otherwise not to go to the Hunts.
(b)The “Bequeathments” list, dated 24 April 2024, identifying particular items to go to named individuals.
(c)The “Notepad list”, dated 25 April 2024, being a handwritten list of items and associated names.
(d)The “Mark Fromont list”, dated 27 April 2024, being a handwritten document with three items and associated names on it.
(e)The “Champagne glasses” note, dated 30 April 2024.
(f)“Binoculars”, a note dated 4 May 2023, but actually from 4 May 2024, which says, “Peter can have the Binoculars belonging to Stan all three”.
[101] The applicants seek a direction that the effect of validation is reflected in Appendix A to Peter’s affidavit. That includes identification of individual intended beneficiaries by both their surnames and given names. In the documents prepared with Ms Hunt and signed by witnesses, many of the beneficiaries are referred to only by their first names. Again, there is no opposition to the order sought in respect of
3 Wills Ac Act 2007, s 31(1)(a).
4 Section 31(1)(b).
these documents. They are not valid codicils because they are not signed and witnessed in the way that is required for a will under s 11 of the Wills Act.
[102] Section 14 of the Wills Act enables the Court to validate documents as “wills” (including codicils).5 This section applies to a document that appears to be a will,6 but does not comply with s 11.7 The Court may declare the document valid if satisfied that it expresses the deceased person’s testamentary intentions. In making that decision, the Court may consider the document itself, evidence on the signing or witnessing of the document, evidence of the deceased person’s testamentary intentions and evidence of statements made by the deceased person.8 The fundamental principle is that the Court should give effect to the intention of the will-maker.
[103] It has been held that the Court may be properly satisfied, by evidence meeting the ordinary civil standard of proof — that is, the balance of probabilities — that the deceased’s intentions are expressed in the document sought to be validated.9
[104]The Court in Re Estate of Beaumont said:10
[12] Under s 14(2), the Court must be satisfied that the document expresses the deceased person’s testamentary intentions. The use of the phrase “is satisfied” is indicative of a state where the Court on the evidence comes to a judicial decision. There is no need or justification for adding an adverbial qualification. In reaching a conclusion as to whether it is satisfied under s 14(2), the Court must have regard to evidence, as s 14(3) makes clear. The standard of proof to be applied in considering that evidence is the civil standard, the balance of probabilities. That is not a fixed standard…
[105] It is apparent that Ms Hunt was concerned in her last weeks of life to make her intentions clear, including in respect of various chattels that were not listed in any detail, or at all, in her 9 May 2023 will. It is necessary for the Court to be satisfied that Ms Hunt had testamentary capacity at the time she expressed her intentions and signed the documents — this is relevant to the issue of whether the documents express her intentions as required by s 14(2) of the Wills Act. However, for reasons I will
5 Wills Act, s 8(3).
6 Section 14(1)(a).
7 Section 14(1)(b).
8 Section 14(3).
9 Re Estate of Campbell [2014] NZHC 1632 at [22].
10 Re Estate of Beaumont [2013] NZHC 2719 (footnotes omitted).
explain later, I have no concerns about her testamentary capacity when she signed the various notes leaving specific items to named beneficiaries.
[106] I will make the order under s 14 of the Wills Act validating the documents exhibited at pages 23–33 of the exhibit bundles to Peter’s affidavit, and I will direct that the effect of the validation of those documents is reflected in Appendix A to Peter’s affidavit.
[107] I turn now to the issue that is in dispute, which is the validation of the 10 May 2024 note. The main issue is testamentary capacity, although there is also an issue as to ambiguity given that the note names “Paul or his successors”. Paul was deceased at the time the note was prepared, and the use of the word “successors” rather than “successor” could be seen as creating further ambiguity.
[108] The issue of testamentary capacity is one of fact to be decided in light of established legal principles. It has been established that the onus of proving that the deceased had sufficient testamentary capacity at the time of preparing a document that does not comply with s 11 of the Wills Act lies with the party applying for the validation of that document as a will under s 14.11 The leading authority on the elements of testamentary capacity is Banks v Goodfellow, where Cockburn CJ said:12
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.
[109] In the context of probate proceedings, the Court of Appeal in Bishop v O’Dea held that in order to establish capacity, those seeking probate must demonstrate that the maker of the will had sufficient understanding of three things:13
(a)that he or she was making a will and the effect of doing so;
11 Singleton v Marshall [2019] NZHC 2486 at [25]–[26].
12 Banks v Goodfellow, above n 2, at 565.
13 Bishop v O’Dea (1999) 18 FRNZ 492 (CA) at [6].
(b)the extent of the property being disposed of; and
(c)the moral claims to which he or she ought to give effect when making the testamentary dispositions.
[110] In Re Public Trust, the Court said that the will-maker must also have a sufficient understanding “that he or she was free from any disorder of mind that might distort feelings or judgment relative to making a will”.14
[111]In Woodward v Smith, the Court of Appeal summarised the Banks v Goodfellow
principles, and said:15
In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all;
Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair and just testament.
But if that standard is not met, he will lack capacity.
[112] It has been said that mental soundness is a question of degree.16 Allowance must be made for difference of individual character,17 but in every case some degree of mental soundness is required to constitute capacity to make a testamentary disposition. The courts have taken a robust approach to this.
14 Re Public Trust [2024] NZHC 2420 at [12(d)].
15 Woodward v Smith [2009] NZCA 215 at [19(5)–(9)].
16 See, for example, Re Public Trust, above n 14, at [13].
17 Re O’Brien [1932] NZLR 43 (SC) at 46, citing Boughton v Knight (1873) LR 3 P & D 64.
[113] In Brown v Pourau, evidence that the will-maker sometimes went into a trance-like state and talked to spirits was not sufficient to invalidate her will in the absence of evidence of incapacity at the time her will was executed.18
[114] Eccentric acts and conduct are not, of themselves, proof of a lack of testamentary capacity.19 It is necessary to consider the personality of the will-maker and the circumstances in which he or she lived.20 In Handley v Stacey, the will-maker was an alcoholic and suffered from delirium tremens a few days before signing the will.21 The issue, however, was whether he was sane and sensible and able to understand the nature and contents of his will at the time when it was executed.
[115]Old age may also raise a doubt as to capacity, but the courts have held that: 22
By itself, old age, or general physical and mental enfeeblement is certainly not conclusive against the will maker. It is not the integrity of the body, but of the mind, with which a court has to be concerned.
[116]Medical evidence will often be of great assistance to the Court.
[117] In Woodward v Smith, the Court of Appeal endorsed the following practice for doctors assessing capacity:23
(a)get a letter from the solicitor detailing the legal tests;
(b)set aside enough time;
(c)assess (according to standard medical knowledge) whether the patient has dementia;
(d)Check that the patient understands each of the Banks v Goodfellow
criteria… being:
(i)The nature and effect of making a will;
(ii)The extent of his or her estate;
(iii)The claims of those who might expect to benefit under the will; and
18 Brown v Pourau [1995] 1 NZLR 352 (HC) at 365.
19 Pilkington v Gray [1899] AC 401 (PC) at 407.
20 Re O’Brien, above n 17, at 45.
21 Handley v Stacey (1858) 175 ER 858.
22 Re Rhodes HC Wellington CP25/02, 7 March 2002 at [39].
23 At [57] and [59], citing Jacoby and Steer “How to assess capacity to make a will” (2007) 335 BMJ 155.
(iv)The patient should not have a mental illness that influences making gifts in the will that would not otherwise have been made;
(e)Record the patient’s answers verbatim;
(f)Check facts, such as the extent of the estate, with the solicitor;
(g)Ask about and review previous wills;
(h)Ask why potential beneficiaries are included or excluded; and
(i)If in doubt as to capacity, seek a second opinion from an experienced professional.
…the lesson provided by the expert geriatricians in Nijsse [is] that best practice requires the interviewer to have the testator repeat without prompting in his own words the essence of his understanding of the Banks v Goodfellow factors and his instructions.
[118] In this case, the issues as to capacity are raised by Mark and supported by his sister, Kathryn, as to her observations of Ms Hunt. Dr Fisher and Dr Zink both provide evidence that calls into question Ms Hunt’s testamentary capacity at the time she signed the 10 May 2024 note. Dr Fisher is of the opinion that Ms Hunt more likely than not lacked capacity.
[119] This is not a case, however, where the medical evidence can be determinative. Had Dr Fisher examined Ms Hunt in accordance with the Woodward v Smith recommended practice and proffered his opinion that she lacked testamentary capacity, I would have had no hesitation in accepting that opinion and finding it extremely persuasive. I have no doubt that Dr Fisher is a pre-eminent expert in the area. The problem in this case, however, is that Dr Fisher did not see Ms Hunt on 10 May 2024 and his retrospective assessment, while informed by his expertise, is necessarily speculative.
[120] Likewise, Dr Zink’s opinion, including his first opinion which he resiled from somewhat, cannot on its own justify a finding of testamentary capacity. Dr Zink’s evidence is useful to the extent that nothing about Ms Hunt’s presentation on 1 May 2024 led Dr Zink, who is in his own right an experienced general medical practitioner specialising in the care of elderly patients, to have concerns about Ms Hunt’s capacity. Rather, he deposes in his affidavit that he regarded her as “lucid, knowledgeable and in complete control of her faculties”. Dr Zink is equally clear that
by 13 May 2024 Ms Hunt lacked testamentary capacity. She was either unconscious or semi-conscious, and nobody suggests that she had capacity by 13 May. The question is at what point her situation changed so that she lacked capacity.
[121] Kathryn, whose evidence I have had careful regard to because she is a nurse working in aged care, raises various issues; but these issues mainly relate to Ms Hunt’s physical frailty, and it is clear that physical frailty is not the issue. A person who is very physically frail and even has some impairment of memory, or who would be unable to undertake complex decisions about unfamiliar matters, may nevertheless have testamentary capacity. An ability to pass certain prescribed tests may be informative, but an assessment of capacity cannot be made on the basis of a will-maker’s ability or inability to “tick off” particular tasks. It is more nuanced than that.
[122] Kathryn also raises the issue of Ms Hunt’s eyesight and says that she was “practically legally blind”. Where a will is signed by a will-maker who is either blind or almost blind, there must be proof that the will was read to, and understood by, the will-maker before he or she signed it. However, it is not necessary that the will-maker could themselves read the document. In this case, there is evidence from Peter that he read the note in question to Ms Hunt, who agreed with it before signing it.
[123] The person who had the best opportunity to observe Ms Hunt at the time of the signing of the note was of course Peter, who was present and discussed it with her. His impression was that she was well able to make decisions and appeared alert and of sound mind. Peter is himself a beneficiary under the will and if the note is validated it will be to his personal detriment in that his entitlement will be reduced. Nevertheless, he says frankly in his affidavit that he believes his aunt had capacity.
[124] While Peter is not a medical expert, he has an advantage because he actually saw Ms Hunt at the relevant time, and he is someone who has presumably known Ms Hunt all of his life. It is also relevant that Ms Hunt was willing to sign documents disposing of small items of property in front of nieces and nephews, including those who would benefit — such as in the case of the stepladder where Mark signed the note that bequeathed the stepladder to him. Mark said that he was uneasy about witnessing
that note but justified it because the value of the stepladder was low. It seems that Ms Hunt also appreciated that distinction. Ms Hunt saw Jillian and her daughter Sarah very regularly and almost daily during the weeks that she was in St Johns. She did not directly discuss changing her will with Jillian, and she clearly wanted to wait until Peter was available to make the most significant change that she had in mind. Peter was an executor named in her will — her desire to wait for him before making a major change is logical and indicates, in my view, an understanding that the change was significant.
[125] Ms Hunt also explained her reasons for wanting to make the change to Peter on the day she signed the note. She said that she felt bad that she had not left Jillian anything in circumstances where Jillian had been very good to her. That is consistent with her reasoning to Mr Crawford when making the 9 May 2023 will. She told Mr Crawford that she thought it was appropriate that she should leave gifts to those who had been good to her. That same reasoning was operating on 10 May 2024, and Ms Hunt explained it.
[126] Dr Fisher says that the decision was moderately complex, but I doubt that it was particularly complex in Ms Hunt’s mind. That is because she was reinstating a position that she had previously thought through, which was to divide part of her property between her nieces and nephews. The value of the share that each niece or nephew obtained was not of particular importance to her as is evidenced by her discussion with Mr Crawford about whether or not there should be a gift over. Ms Hunt took the view that if one of her nieces or nephews were to predecease her, the others would simply get a larger share. It was that view that Ms Hunt reconsidered somewhat.
[127] The effect of the decision made on 10 May 2024 was that Ms Hunt wanted Jillian to get what would have been Paul’s share of her estate. It is notable that Ms Hunt knew that the change in her will should be done formally with Mr Crawford’s assistance, and she expressed to Peter that she doubted a lawyer would be available on a Friday afternoon. That in itself indicates that she was well orientated as to time and place and well aware of the need to have the change properly recorded.
[128] Ms Hunt was under a medication regime that included morphine and midazolam, but Dr Fisher did not regard that as a major factor that would have impaired her cognition. There is no compelling evidence that Ms Hunt was suffering from delusions or hallucinations. I do not regard the evidence about the ants in the bed as indicative of any delusions. I accept that it may have sounded delusional to Mark if he did not understand that there was in fact an infestation of ants at the rest home. The issue of the erotic dream that was recounted to Ann in the presence of a younger relative might or might not be out of character. It may well be that at the time Ms Hunt recounted that, she would not have had testamentary capacity if her behaviour was out of character and indicative of an altered mental state. However, Jillian and her daughter say that such stories were not particularly unusual or out of character.
[129] It seems to me that it was somewhat out of character for Ms Hunt to tell that story to Ann because Ann regarded her as “a very proper private person”. However, Ms Hunt’s state at the time of this conversation with Ann is not determinative. The time that is in issue is that time at which Ms Hunt signed the 10 May 2024 note. A person who is receiving morphine or who is in the process of dying, as Dr Fisher explained, may have periods when they certainly lack testamentary capacity. However, that does not mean that they consistently lack capacity. As the case law establishes, testamentary capacity can fluctuate.
[130] The most important thing is to give effect to Ms Hunt’s intention at a time when she had capacity. It is not to decide whether what Ms Hunt did was sensible. The sole issue is whether Ms Hunt had capacity at the time she signed the 10 May 2024 note. That issue concentrates on how she was at that time, and not before or after.
[131] There are several factors that lead me to the view that Ms Hunt did have testamentary capacity at the time she signed the 10 May 2024 note. They include the fact that she waited for Peter, who was her executor, to arrive; she explained to Peter her reasoning, namely that Jillian had been good to her; she recalled that she had written Paul out of the will after he died; she understood the effect of that was that Jillian would not benefit from her will; she understood that she should not discuss this in front of Jillian and stopped talking about it when Jillian arrived; and she understood
that Mr Crawford should be involved and that it was a Friday afternoon which might make it difficult to involve him immediately. Ms Hunt extracted an undertaking from Peter that he would attend to her wishes in respect of Jillian. She appears to have deteriorated relatively quickly over the weekend that followed but I am satisfied on the balance of probabilities that Ms Hunt had testamentary capacity at the time she signed the 10 May 2024 note. I accept Kathryn’s assessment that her aunt might have struggled to perform tasks such as adding up columns of numbers or completing a cryptic crossword, but I do not think that equates to a lack of testamentary capacity.
[132] So far as the issue of the words “Paul Fromont or his successors” is concerned, there is ambiguity. However, that simply comes from the way the 10 May 2024 note was written by Peter. If words used in a will are ambiguous or uncertain, the Court can have regard to external evidence, including evidence of the will-maker’s testamentary intentions, to interpret the words in the will that make it ambiguous or uncertain.24 Peter’s evidence was clear that Ms Hunt’s intention was to benefit Jillian by permitting Jillian to receive her late husband Paul’s share of the estate.
Result
[133]I make the following orders:
(a)correcting, under s 31 of the Wills Act, clause 3.1 of the will, so as to delete “all money (including interest) standing to my credit at my death in any ASB Bank Limited bank account” and insert in its place, “all money (including interest) standing to my credit in ASB term deposit [redacted]”;
(b)declaring, under s 14 of the Wills Act, the documents exhibited at pages 23–33 of the Exhibit Bundle to the affidavit of Peter Gerard Fromont to be valid, and directing that the effect of the validation of those documents is reflected in Appendix A to the affidavit of Peter Gerard Fromont;
24 Wills Act, s 32.
(c)declaring, under s 14 of the Wills Act, the handwritten note dated 10 May 2024 exhibited at page six of the Exhibit Bundle to the affidavit of Peter Gerard Fromont to be valid, and directing that the effect of the validation is to add “Paul Fromont or his successors” as an additional person in the list of persons at clause 3.1(a) of the will; and
(d)granting probate of the 9 May 2023 will in solemn form to the applicants, as modified in accordance with the orders of validation and correction made by the Court.
[134] There is no issue as to costs. Orders have already been made confirming that the applicants’ reasonable costs of and incidental to this proceeding are to be met by the estate.25
Wilkinson-Smith J
25 Re the Estate of Hunt [2024] NZHC 3143.
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