Estate of Spellers - [2024] NZHC 1216

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-95

[2024] NZHC 1216

UNDER the Administration Act 1969 and the Senior Courts Act 2016 (the High Court Rules)

IN THE ESTATE OF

DAVID JOHN SPELLERS formerly of Ruawai, late of Te Puke, Retired, Deceased

BETWEEN

AMANDA MARY CHARLOTTE MATICH

as executor and trustee of the last will of the late DAVID JOHN SPELLERS

Plaintiff

AND

AMANDA MARY CHARLOTTE MATICH and JOSEPHINE MICHELLE CAMPBELL

as executors and trustees of the wills of the late DAVID JOHN SPELLERS

Defendants

Hearing: 6 November 2023 (Heard at Hamilton)

Appearances:

M Phillips for the Plaintiff

V McGoldrick for the Defendant Josephine Michelle Campbell T J Conder for Interested Parties Mathew James Spellers and Amanda Michelle Spellers

Judgment:

16 May 2024

JUDGMENT OF GAULT J

This judgment was delivered by me on 16 May 2024 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

Solicitors:

……………………………………

Mr M Phillips, Vicki Ammundsen Trust Law Ltd, Auckland Ms V McGoldrick, McGoldrick Law Ltd, Whangārei
Mr T J Conder, Holland Beckett Law, Tauranga

RE ESTATE OF DAVID JOHN SPELLERS [2024] NZHC 1216 [16 May 2024]

TABLE OF CONTENTS

Introduction  [1]
Factual background  [8]
2002 to 2005  [15]
2005 will  [21]
Mr Spellers’ ongoing health and family contact – 2006 to 2015  [23] 2015 will  [47]
Mr Spellers’ ongoing health – 2016/2017  [60]
2017 will  [62]
2018 will  [71]
Subsequent events  [78]
Financial allegations  [94]
Summary terms of each will  [100]
2005 will
2015 will
2017 will
2018 will

Issues [101]

Testamentary capacity
Applicable principles  [103]
Onus  [108]
Dr Casey’s expert evidence  [109]
2018 will  [113]
2017 will  [116]
2015 will  [119]
2005 will  [134]

Undue influence

Applicable principles [137]

Onus [138]

Dr Casey’s expert evidence [139]

2018 will [140]

2017 will [141]

2015 will [147]

Conclusion [153]

Result [155]

Costs [156]

Introduction

[1]This is a sad dispute about the last valid will of Mr David John Spellers.

[2] The plaintiff, Ms Matich, is a solicitor and executor or co-executor of a series of four wills executed by Mr Spellers between 2005 and 2018. Mr Spellers died on 11 November 2020. Ms Matich seeks a declaration that Mr Spellers’ will dated 29 March 2018 (the 2018 will) is his last valid will, and an order granting probate. In the alternative, she seeks a declaration as to which of Mr Spellers’ wills is his last valid will and an order granting probate of that will. In submissions, Ms Matich appropriately took a neutral position despite the duty to put forward the 2018 will.1

[3] The second-named defendant, Ms Campbell, was a co-executor of the 2018 will and of the two previous wills, dated 16 December 2015 (the 2015 will) and 6 December 2017 (the 2017 will). However, by deed of renunciation dated 30 July 2021, Ms Campbell renounced probate of the 2018 will. Ms Campbell supports probate of the 2018 will or alternatively seeks a declaration…

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.

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Details

Case: [2024] NZHC 1216
Decision Date: 16 May 2024

CaseChat Overview and Summary

This is a case about the last valid will of Mr David John Spellers, who died on 11 November 2020. The plaintiff, Ms Matich, is a solicitor and executor or co-executor of four wills executed by Mr Spellers between 2005 and 2018. Ms Matich seeks a declaration that Mr Spellers’ will dated 29 March 2018 is his last valid will and an order granting probate. In the alternative, she seeks a declaration as to which of Mr Spellers’ wills is his last valid will and an order granting probate of that will. The second-named defendant, Ms Campbell, supports the 2018 will or alternatively seeks a declaration as to which of the wills is the last valid will. Two of Mr Spellers’ adult children, Mathew and Amanda, dispute the validity of the 2015, 2017, and 2018 wills and seek probate of the 2005 will. The ultimate issue to be determined is which of Mr Spellers’ wills was his last valid will. That requires determining which was the last will that Mr Spellers executed when he had testamentary capacity and that was not the result of undue influence. The Court concluded that Mr Spellers’ 2017 and 2018 wills are invalid on the ground that he lacked testamentary capacity at the time of making those wills. Mr Spellers had capacity at the time of making his 2015 will. The 2015 will was not subject to undue influence. Accordingly, Mr Spellers’ 2015 will is his last valid will. Probate is granted in relation to the will executed by Mr David John Spellers on 16 December 2015 to both executors appointed by that will, Ms Amanda Mary Charlotte Matich and Ms Josephine Michelle Campbell.

Orders