Estate of Mangous
[2024] NZHC 3594
•28 November 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-438
[2024] NZHC 3594
UNDER the Administration Act 1969 IN THE MATTER OF
An originating application by the executor of the estate of VICTOR MANGOUS for an order for the grant of probate in solemn form
PUBLIC TRUST
Applicant
Hearing: On the Papers Appearances:
A K Finnie for Applicant
Judgment:
28 November 2024
JUDGMENT OF MANDER J
This judgment was delivered by me on 28 November 2024 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
RE ESTATE OF MANGOUS [2024] NZHC 3594 [28 November 2024]
[1] This is an application by the Public Trust seeking a grant of probate in solemn form in respect of a will executed by Mr Victor Mangous on 11 October 2011 (the 2011 will). The application is made because Mr Mangous gave instructions to prepare a will in 2023 which was never formally executed before he died. Public Trust have considerable evidence that Mr Mangous did not have testamentary capacity at the time he sought to have this further will prepared in 2023. No issue as to Mr Mangous’ testamentary capacity arises in respect of the 2011 will.
[2] Service has been effected in accordance with this Court’s direction on members of Mr Mangous’ family and various charitable organisations named in either the 2011 will or the unexecuted 2023 draft will. The only formal step taken by any of those individuals or organisations has been the filing of an appearance by the Canterbury Charity Hospital Trust which does not oppose the Public Trust’s application. Accordingly, the matter has proceeded by way of formal proof.
Background
[3] Mr Mangous died at Christchurch on 6 September 2023. He was not in a relationship at the time of his death and had no children. Mr Mangous’ sole surviving family is his brother, Christopher Mangous, and his family. An older brother, Nicolaos Mangous, passed away in 2015.
[4] Mr Mangous’ estate is relatively modest. It comprises funds of $299,630.99 as at 16 August 2024. The Public Trust is not aware of any other assets held by Mr Mangous.
[5] Other than the 2011 will, Public Trust holds no other executed wills in Mr Mangous’ name. When he died, Public Trust engaged in the usual administrative tasks, that included obtaining a death certificate; liaising with family members; searching for any other wills; advertising for creditors; seeking out medical records from medical practitioners; reviewing historical records relating to Mr Mangous’ estate; and locating potential beneficiaries of the estate.
[6] Public Trust holds no concerns regarding the circumstances in which the 2011 will was executed. However, upon Mr Mangous’ death and a review of his file, Public
Trust became aware of instructions he gave regarding the making of a new will in May 2023 about which his testamentary capacity is doubted. It is because of this knowledge of the 2023 draft will and Mr Mangous’ testamentary capacity being in issue at that time that an application for a grant of probate in solemn form in respect of the 2011 will has been sought, with notice being provided to all those named in the unexecuted 2023 draft will.
The 2023 draft will
[7] In May 2023, Public Trust received instructions from Mr Mangous about updating his will. The assigned Public Trust advisor recorded those instructions and subsequently prepared a draft will in accordance with them. The 2023 instructions made some changes to the existing will, the most significant of which related to the distribution of the residue of the estate, which it was proposed be divided between four charities—Child Cancer Foundation Incorporated, Make A Wish Foundation of New Zealand Trust, The Order of St John National Office, and the Canterbury Charity Hospital Trust. The key changes from the 2011 will was the addition of the Canterbury Charity Hospital Trust and the removal of the National Heart Foundation and Royal New Zealand Foundation of the Blind as residual beneficiaries.
[8] At the time the Public Trust advisor took Mr Mangous’ instructions, he made a contemporaneous file note recording his concerns as to the capacity of Mr Mangous. The Public Trust advisor recorded the following observations of Mr Mangous:
(a)not knowing why he was at the appointment;
(b)being unsure of the extent of his investments;
(c)being unable to recall basic details such as his doctor’s name and his EFTPOS card PIN number; and
(d)mistaking $100 for $500.
The file note made by the Public Trust advisor concludes with the comment: “Therefore, I am concerned about his mental capacity”.
[9] With the assistance of Mr Mangous’ brother, a medical certificate was obtained from Mr Mangous’ doctors and other relevant information. It was discovered that Mr Mangous had been admitted to the dementia unit at Avon Lifecare on 28 June 2023, some 49 days after his instructions were given to Public Trust. On 19 July, his doctor advised that Mr Mangous was:
... unable to make any decisions about his care, let alone any change to his Will... My opinion is that he is unlikely to recover mental capacity to make any decisions about his will and his care in the future.
(emphasis added)
[10] Mr Mangous was recorded as suffering from a number of medical conditions, including schizotypal personality disorder, cognitive impairment, and Parkinsonism. One of his medications was Rivastigimine, which is a drug used to treat dementia. The doctor’s formal opinion, as at 19 July 2023, was that Mr Mangous was not able to understand what a will was, nor its consequences; nor did he know the nature and extent of his assets and liabilities, or the names and relationship to his close relatives, or be able to assess their claims to his property. The doctor certified that Mr Mangous was not free from any disorder of the mind that might distort feelings or judgements relevant to making a will, and that, in his opinion, Mr Mangous was not competent to make a will. This assessment of Mr Mangous’ mental state was made some two months after his instructions to Public Trust.
Other enquiries
[11] Following Mr Mangous’ death, Public Trust made further enquiries and sought advice from his surviving brother. Mr Mangous was described by his brother as acting very strangely (for example, hallucinations, running away, falling over) a few weeks prior to his transfer to Avon Lifecare. By that stage Mr Mangous’ condition had deteriorated to the point he could no longer be managed by his previous rest home, Kauri Lodge.
[12] Public Trust also obtained a copy of Mr Mangous’ medical records from which it was confirmed he had a longstanding history of cognitive impairment. Relevant references in the medical records include the following entries:
(a)Diagnosis of “schizotypal personality disorder” on 28 June 2023.
(b)Description of “mild dementia with poor insight—challenging personality type” on 29 May 2022.
(c)A notation that he “[h]as dementia—is on the decline” on 17 December 2020.
(d)“CT scan confirms likely has [A]lzheimers—cognitive impairment is significant” on 10 February 2020.
(e)“Had hallucinations” on 2 August 2018.
(f)A record of himself being “worried about his memory” and a score of “18/30 on a MOCA [the Montreal Cognitive Assessment Test] on 3 May 2016.
[13] On 28 February 2024, a further medical certificate was obtained from Mr Mangous’ doctor, who attested to the following about Mr Mangous’ capacity prior to his death:
(a)“Would not have understood what a will is and what its consequences are”.
(b)“Would not have known the nature and extent of his/her assets and liabilities”.
(c)“Would have known the names of his/her close relatives and would have been able to assess their claims to his/her estate”.
(d)“Was not free from any disorder of the mind that might distort feelings or judgements relative to making a will”.
[14] This evidence which has not been contested, nor countered by any contradictory information, raises significant concerns as to the testamentary capacity
of Mr Mangous in May 2023. This is particularly so having regard to the medical records that reference his dementia and cognitive difficulties between May 2016 until his death in September 2023, and in respect of which a death certificate was issued that indicated “Dementia on background of Parkinson’s Disease years”.
Relevant legal principles
[15] The onus of satisfying the Court that Mr Mangous did in fact have testamentary capacity rests on Public Trust as executor.1 Whether that onus can be discharged on the balance of probabilities in any individual case largely depends on the available evidence suggesting a lack of capacity.2 Where an executor doubts a testator had capacity at the time the will was made, the will must still be brought to probate.3 Ultimately, it will be a matter for the Court to determine.
[16] The principles relating to the issue of testamentary capacity are set out in Banks v Goodfellow:4
As to the testator’s capacity, he must, in the language of the law, have a 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 of 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 simplest form.
[17] While that authority is of some considerable vintage, its statement of the relevant legal principles has been confirmed and restated in a number of more recent New Zealand cases.5 The requirements of testamentary capacity were distilled by the Court of Appeal in Woodward v Smith:6
(2)It is essential to the exercise of such a power that a testator:
1 Public Trustee v Bick [1973] 1 NZLR 301.
2 Watkins v Public Trustee [1960] NZLR 326.
3 Public Trust v Dollimore [2019] NZHC 607, [2019] 2 NZLR 901.
4 Banks v Goodfellow 1870 LR 5 QB 549.
5 Woodward v Smith [2009] NZCA 215; and Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618.
6 Woodward v Smith, above n 5, at [19].
[i] understands the nature of the act and its effects; and also the extent of the property of which he is disposing;
[ii] is able to comprehend and appreciate the claims to which he ought to give effect;
[iii] be free of any disorder of the mind which would 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.
[18] More recently, the Court of Appeal has restated these essential prerequisites for testamentary capacity in Loosley v Powell.7
[19] A concern regarding testamentary capacity will not, by itself, prevent probate from being granted in solemn form.8 Nor will the fact a testator is suffering from some mental impairment of itself deprive a person of capacity9 which must be assessed in all the circumstances.10 However, unless the Court, after reviewing all the available evidence, is able to affirmatively declare itself satisfied as to a will-maker’s competence at the time they executed the will, the Court is obliged to declare against its validity.11
Analysis
[20] The application before the Court is for a grant of probate in solemn form in respect of the 2011 executed will. The 2023 will was never executed. No issue of Mr Mangous’ capacity arises in respect of the 2011 will. Mr Mangous’ brother observed that he was “his normal self” in 2011.
[21] Mr Mangous’ presentation to the Public Trust advisor when taking his instructions in May 2023 immediately raised concerns regarding Mr Mangous’ capacity. There was some delay between the recording of those instructions and the assessment by Mr Mangous’ doctors as to his capacity, which necessarily means this medical opinion has to be applied retrospectively. Nevertheless, the doctor’s opinion
7 Loosley v Powell, above n 5.
8 Public Trust v Lourie [2020] NZHC 1691.
9 Re Simpson [2019] NZHC 454.
10 Re Howie [2014] NZHC 346.
11 Brown v Free [1951] NZLR 393.
as at July 2023 is only a matter of months after Mr Mangous’ meeting with the Public Trust advisor in May 2023.
[22] Mr Mangous had been suffering from longstanding dementia for a considerable period. He returned a very low score in a cognitive assessment carried out as far back as 2016, which is indicative of significantly impaired cognition, some seven years prior to providing instructions for the 2023 draft will. There is no evidence to suggest Mr Mangous’ mind would have improved over the years and, indeed, the account provided by his brother indicates that in recent times, in a period generally proximate with his meeting with Public Trust, he had severely deteriorated.
[23] Having reviewed the available evidence, there can be no confidence that Mr Mangous had testamentary capacity at the time of his 2023 instructions. The Public Trust advisor was moved at the conclusion of his meeting with Mr Mangous to record that his client did not even know why he was at the appointment, was unsure as to the extent of his investments, and was unable to provide basic details regarding his affairs. The further information obtained by Public Trust from Mr Mangous’ closest family member, medical records and his doctor substantially confirms the Public Trust advisor’s concerns that Mr Mangous did not have capacity at the time he purported to give his instructions for the purposes of the draft will.
[24] The application for a grant of solemn probate in respect of the 2011 will is unopposed. While it appears Mr Mangous was motivated in 2023 to redraft his will, I accept that by this time his testamentary capacity was clearly in issue and that very real concerns arise regarding his ability to have freely exercised his mind in a manner that was not materially incumbered by cognitive impairment.
Result
[25] Having regard to all the circumstances, I am satisfied the 2023 draft will should be put to one side and that it is appropriate for an order to be made granting probate in solemn form in respect of the 2011 will for the purpose of distributing the estate of Victor Mangous. Accordingly, an order will issue in those terms.
Solicitors:
Public Trust, Christchurch
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