Estate of Sole

[2023] NZHC 2537

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2023-404-783

[2023] NZHC 2537

IN THE MATTER

of the Administration Act 1969

AND

IN THE MATTER

of an originating application by PUBLIC TRUST as the executor of the

estate of HENRY MELVYN SOLE for an order for the grant of probate in solemn form

Hearing:	31 August 2023
Appearances:	A Finnie for the Applicant
Judgment:	31 August 2023

ORAL JUDGMENT OF BECROFT J

Solicitors/Counsel:

L Hermon, Public Trust, Wellington A Finnie, Auckland

ESTATE OF HENRY SOLE [2023] NZHC 2537 31 August 2023

The application

[1]    This originating application by the Public Trust seeks a grant of probate in solemn form either of a will of Henry Melvyn Sole dated 27 January 2011 or in the alternative, a will dated 18 May 2001.

[2]    The Public Trust is the named executor of both wills. The Public Trust knows of no other will made by Mr Sole.

[3]    In the first will, the sole beneficiary is Mr Sole’s sister, Ngaire Claridge, or if she predeceases him, her son, who is Mr Sole’s grandson.

[4]    In the second will, the beneficiaries are all of Mr Sole’s surviving siblings. They have all been served with the proceedings. There are no appearances today.

[5]    Mr Finnie appears on behalf of the Public Trust. He has filed detailed and very helpful submissions.

Background issues

[6]    On 15 August 2022, Mr Sole died at Kaimaumau Road, Far North. He was never in a legal relationship with any other person. He left a modest estate in the vicinity of approximately $300,000–$400,000 (being essentially the value of his home, which he owned outright).

[7]    The death certificate recorded a cause of death which was a catalyst for further enquiries being made by the Public Trust. The death certificate recorded the causes of death as being “[s]udden cardiac arrest four minutes; cardiovascular complications decades; genetics pathophysiology schizophrenia decades”.

[8]    Perhaps, unsurprisingly, the issue of testamentary capacity concerned the Public Trust. Enquiries, which I shall outline, were made of Mr Sole’s long-term general practitioner (GP), who had seen Mr Sole since the late 1980s. Further enquiries were made of the one surviving witness of both wills, Mr F, a retired Kaitaia

accountant who, throughout the period of the two wills and before, acted as the agent for the Public Trust in Kaitaia in terms of taking will instructions.

[9]    The result of all those enquiries, in at least summary form, raised a “red flag” for the Public Trust in respect of testamentary capacity. The issues that were raised, as faced by Mr Sole during his lifetime, included:

(a)very poor communication skills with a speech impediment, making regular conversation almost impossible;

(b)a history of learning issues which were never identified (it is noted that he was described by his GP in a letter dated 13 December 2022, as “mentally handicapped”—perhaps using the language of a bygone era);

(c)a head injury dating back to Mr Sole’s twenties (no details of which are available); and

(d)a history of documented schizophrenia with periodic decompensation.

[10]   I record that this application is brought responsibly and appropriately by the Public Trust.

The law

[11]   Mr Finnie, who has expertise in this area, provided a helpful synopsis of the relevant legal principles, which I summarise as follows.

[12]   In the absence of a tenable issue as to capacity, Mr Sole’s most recent will would simply be presumed to be one for which he had testamentary capacity.

[13]   Where there is tenable evidence of lack of capacity, the onus of satisfying the Court that Mr Sole did have testamentary capacity rests on the Public Trust as executor.1 In this case, such evidence is provided by the death certificate and the retrospective reports of Mr Sole’s GP.

1      Public Trustee v Bick [1973] 1 NZLR 301 (CA).

[14]   The onus is to be discharged on the balance of probabilities. Whether the onus is discharged depends on the strength of the evidence suggesting lack of capacity. The question is a legal question for the Court to determine, not the executor.

[15]   The leading authority on testamentary capacity is Banks v Goodfellow of ancient authority:2

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 simple forms

[16]   Those principles have been confirmed and re-stated over time. For instance, in New Zealand, in the Court of Appeal’s decision in Woodward v Smith included the following useful summary,3 most recently repeated in Loosley v Powell:

(1)    Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.

(2)    It is essential to the exercise of such a power that a testator:

[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.

…

2      Banks v Goodfellow (1870) LR 5 QB 549 at 567, quoting Harrison v Rowan (1820) 3 Wash C C 580 at 585.

3      Woodward v Smith [2009] NZCA 215 at [19]; this summary was most recently repeated in Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618.

[17]   Mr Finnie has noted a range of cases involving people with impaired capacity in a general sense who have been deemed, nevertheless, to still have testamentary capacity.4 The question must be determined in all of the circumstances.

[18]   Unless the Court, on a review of all the available evidence, can affirmatively declare itself satisfied as to the will maker’s competence at the date of execution, the Court must declare the will invalid. A concern about testamentary capacity does not by, itself, prevent probate in solemn form being granted.

Evidence and discussion

[19]   This case suffers from a singular lack of documented evidence at the time the wills were made. It is largely based on retrospective analysis. There is no detailed medical evidence before the Court as to the nature of schizophrenia and how it might affect testamentary capacity particularly in the case where the schizophrenia is apparently being medicated and well managed in the community.

[20]   The starting point is the GP’s written statements. The first issue is the GP’s response to a short Public Trust “questionnaire” which presents itself in the form of a certified retrospective assessment of testamentary capacity. It is an apparently a standard Public Trust form.

[21]   That pre-formatted form includes a series of statements that effectively require “affirmative” or “negative” answers. The GP provided the following responses about Mr Sole’s capacity, to four “would” or “would not” questions, at the time of the 27 January 2011 will: Mr Sole “would” have understood what a will is and what its consequences are; he “would” have known the nature and extent of his assets and liabilities; he “would” have known the names and relationships of his close relatives and “would” have been able to assess their claims to his estate; however he “was not free” from any disorder of the mind that might distort feelings or judgments relevant to making a will.

4      Public Trust v Dollimore [2019] NZHC 607, [2019] 2 NZLR 901; Re Simpson [2019] NZHC 454; Public Trust v Lourie [2020] NZHC 1691; Public Trust v Atwool [2020] NZHC 1228; Nelson v Codilla [2021] NZHC 1958.

[22]   In the pre-formatted form, the GP then underlined the option that said in his opinion Mr Sole “did not have testamentary capacity to make his will on 27 January 2011.” The form included the standard words “my scope of practice includes assessment of mental capacity.” The GP then added in writing that he had access to psychiatry letters dated 1988 and 2017.

[23]   That report seems to me, to be very bald without reasons or analysis. To some extent, I have to observe, it is internally inconsistent given that the GP concludes or assesses that Mr Sole knew what a will and its consequences would be; knew about his assets and liabilities and knew of those who had a claim to his estate. That, it seems to me, would get very close to establishing testamentary capacity at least in its crude form. But it is countered by his conclusionary opinion that Mr Sole did not have testamentary capacity.

[24]   I also observe that, in my view, the form is unhelpful in that it presents to the certifying doctor what are binary options of a “would” or “would not” nature. There is not an option of being “not sure” or “unsure” or “too long ago to know”. That would certainly, I think, be of assistance for a GP who is providing an opinion about a person’s state of mind over 11 years ago—in the case of Mr Sole’s most recent will.

[25]   The GP provided a similar, if not, identical assessment in respect of the will dated 18 May 2001 (but without the handwritten addendum as to access to psychiatric letters).

[26]   More relevantly, in a letter dated 13 December 2022, the GP confirmed that Mr Sole's schizophrenia was managed with medication, although he did experience periodic decompensation. It concluded by saying, “I cannot state with any certainty that at the time of setting up a will [which, presumably means both wills] he was free of mental illness in addition to his background cognitive limitations.”

[27]   Carefully analysed, that conclusion is not ultimately helpful. It may be that Mr Sole was not free of mental illness at the time, in addition to his background cognitive limitations. But the letter does not go on to say whether he would have had

testamentary capacity which is a different question—although the GP’s earlier reports indicated to the contrary. But the letter itself, in my view, is inconclusive.

[28]   Much more equivocal is the GP’s most recent letter dated 29 January 2023, which records, “[i]t is an impossible task to retrospectively make an assessment on his degree of mental competence in signing a legal document at the time that he signed it.”

[29]   He also notes that Mr Sole had an intellectual disability (that had not been formally tested); a head injury (without any formal documentation); a speech impediment that made regular conversation almost impossible; and a history of mental illness “that was probably under control [with] medication most of the time.” In this more detailed letter, the GP made the following conclusions:

I cannot make a statement with any assurance that at the time he signed his will that he had legal understanding.

I am equally uncertain that he did not have understanding, as this would probably be an allocation of assets to family.

[30]   In other words, the GP is unsure. Put, colloquially, it is something of a “dollar each way” assessment or, in terms of balance of probabilities, no more than 50/50. Mr Finnie referred to these assessments as the GP “hedging his bets” about Mr Sole’s testamentary capacity at the relevant times.

[31]   Against that evidence, the affidavit provided by Mr F who took both of      Mr Sole’s will instructions, is very relevant. He has no independent recollection of taking instructions for either will. Therefore, he is also reliant on records (like the GP).

[32]   Crucially, in my view, Mr F, a man with great experience in taking will instructions and an apparently well-respected former accountant, made the following handwritten note on the relevant instructions taken at the time of the earlier will:

Although it was not stated at the interview, Mr Sole appears to have an intellectual disability. However, I am quite satisfied he was giving carefully considered instructions, and was fully aware of what he was doing.

[33]That form was signed by Mr F and dated 3 May 2001.

[34]   In my view, considerable weight can be attached to that careful and detailed handwritten addition to the will instructions. Given it was made at the time, there is no need for any retrospective assessment. An “on-the-spot assessment”, which is very relevant, is available to the Court.

[35]   In his second will instructions form, Mr F does not make any comment about Mr Sole’s testamentary capacity. However, in his affidavit he carefully deposes:5

I was always very conscious when witnessing wills that I was a layman rather than a trained legal professional and so I believed it was appropriate to be very careful in respect of capacity for a person signing a will.

[36]Mr F went on to depose that:6

I was always aware of possible problems with undue influence and capacity when taking will instructions. On a few occasions I have asked accompanying people to wait outside if I felt they were influencing the testator. It appears Mr Sole was alone with me on both occasions and that he gave will preparation instructions.

[37]   Mr F deposes that it was his practice to always take these matters seriously and to record any potential problems with his opinion on them. The fact that Mr F did not record any observations on the second will instructions at the time, led to him firmly concluding that Mr Sole must have “been ok in my view” as he was able to give detailed beneficiary information with full names and addresses. There is one possible question mark raised by Mr F regarding Mr Sole’s address, but to me that is a matter of detail that does not go to the heart of this question.

[38]   I consider that the evidence provided by Mr F is particularly important in this case. The evidence of Mr Sole’s GP is less than helpful because it involves a series of binary responses that do not provide reasons for those conclusions. The letters written by the GP also convey that he had a great deal of uncertainty regarding Mr Sole’s capacity at the time he provided instructions for both wills.

5 Affidavit of Mr F affirmed on 1 July 2023 at [10].

6 At [11].

[39]   Mr F’s evidence then becomes pivotal. I regard it as providing assurance whereby the Court can be satisfied, on the balance of probabilities, that Mr Sole had testamentary capacity. The evidence that he doesn’t, frankly, is not strong.

[40]   There are more things that can be said in support of this finding. Mr Sole’s schizophrenia was being effectively treated by medication and it appears that he was taking it. Mr Finnie who has some experience in mental health matters, notes that there is only one record over the 30 years or so during which records are available of any inpatient admissions for Mr Sole. This was a short admission into Kaitaia Hospital in 1988. Had he been admitted, at any other time, there is an expectation that records would have been available to prove it. This shows that Mr Sole was managing reasonably well in the community and, in other respects, was coping adequately.

[41]   Mr Finnie concluded that Mr Sole had been doing “incredibly well” in terms of his self-management of schizophrenia. The evidential conclusion must  be that  Mr Sole was coping tolerably well in the community by himself and, in my view, this points strongly in favour of Mr Sole having sufficient testamentary capacity.

[42]   I also need to say that I put to one side Mr Sole’s apparent speech impediment. I say no more than speech impediments are not determinative in any way of a lack of mental functioning.   The same applies to a head injury.   There is evidence as to    Mr Sole’s impaired intellectual functioning. However, there is no evidence of any testing or any objective measurement as to the extent of any lack of mental capacity. And it would be a big step for me to hold that being a schizophrenic (when all medication is being taken) carries with it a presumption of insufficient testamentary capacity.

[43]   Indeed, Mr Sole’s second will is entirely consistent with a logical, responsible, and reasoned disposition of his assets. It is the most recent will that in practice and in law revokes the earlier will—which would have been, perhaps, problematic to the siblings as a whole, and the most recent will reflects a more balanced family-wide disposition.

[44]   I also note that all beneficiaries, including Mr Sole’s sister, the primary beneficiary in the first will, have been served and have taken no steps to become involved.

Conclusion

[45]   In my view, the application of the law to the evidence in this case points firmly, on a balance of probabilities approach, to a finding that Mr Sole had the necessary testamentary capacity at the time he made the most recent will. I order accordingly. There is a grant of probate in solemn form in respect of Mr Sole’s most recent will of 27 January 2011.

[46]   I conclude, almost as a postscript, that if I had declared both wills invalid on the basis of lack of testamentary capacity, then the Public Trust would have applied for letters of administration. That route would have provided precisely the same result as here: that is, equal disposition amongst Mr Sole’s surviving siblings. That is not a reason to declare him as having testamentary capacity. But it does show that in terms of practical reality, and on a pragmatic analysis, irrespective of this decision the result would have been the same.

Costs

[47]   The reasonable costs of the executor in bringing this application are to be met from the estate. Mr Finnie assures me that costs will be reasonable and fair and no more than that.

Becroft J