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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Estate of Sole and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZHC 2537
Decision Date: 31 August 2023

CaseChat Overview and Summary

The originating application by the Public Trust, as executor of Henry Melvyn Sole’s estate, seeks a grant of probate in solemn form for either a will dated 27 January 2011 or, in the alternative, a will dated 18 May 2001. The Public Trust is the named executor of both wills and asserts that Mr Sole made no other will. The primary beneficiary of the first will is Mr Sole’s sister, or if she predeceases him, her son. The beneficiaries of the second will are all of Mr Sole’s surviving siblings. The central legal issue is whether Mr Sole had the requisite testamentary capacity at the time he made the wills, particularly the most recent one dated 27 January 2011.

The court considered the relevant legal principles regarding testamentary capacity, emphasizing that in the absence of a tenable issue, the most recent will would be presumed to reflect testamentary capacity. However, when there is evidence suggesting a lack of capacity, the burden falls on the executor to prove, on the balance of probabilities, that the testator had the requisite mental faculties. The court reviewed the evidence, including retrospective assessments by Mr Sole’s long-term general practitioner, who indicated uncertainty about Mr Sole’s capacity, and an affidavit from the person who took Mr Sole’s will instructions, who observed that Mr Sole appeared to understand his actions. The court found that Mr F’s contemporaneous handwritten note, stating that Mr Sole was fully aware of what he was doing, was particularly persuasive. The court concluded that Mr Sole had testamentary capacity at the time he made the most recent will.

The court granted probate in solemn form for Mr Sole’s will dated 27 January 2011. The court noted that even if both wills had been declared invalid, the outcome would have been the same, with the estate distributed equally among Mr Sole’s surviving siblings. The reasonable costs of the application were to be met from the estate.

Orders