Estate of Spellers
[2024] NZHC 1216
•16 May 2024
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 as to which of the wills is the last valid will.
[4] Two of Mr Spellers’ adult children, Mr Mathew Spellers and Ms Amanda Spellers,2 dispute the validity of the 2015, 2017 and 2018 wills. Mathew and Amanda consider that Mr Spellers lacked testamentary capacity at the time of making all three wills and that Ms Campbell unduly influenced Mr Spellers in making them. Mathew and Amanda say that an earlier will executed on 16 September 2005 (the 2005 will) is Mr Spellers’ last valid will and seek probate of that will.
[5]The material terms of the different wills are summarised later.3
[6]The value of Mr Spellers’ estate is approximately $265,000.
1 Re Young, Hobbs v Christchurch City [1968] NZLR 1178 (SC); and Public Trust v Dollimore
[2019] NZHC 607, [2019] 2 NZLR 901 at [34].
2 I will use first names for the adult children not for informality but for ease of differentiation.
3 At [100].
[7] Evidence was given by Ms Matich, Ms Campbell, Mathew and Amanda plus expert evidence from Dr Jane Casey, a Consultant Psychiatrist, specialising in Old Age Psychiatry, appointed by the Court.
Factual background
[8] Mr Spellers was born on 12 November 1943. The evidence disclosed little of his life prior to the period involving the series of wills. He was a cabinetmaker.
[9] Mr Spellers was married three times and had three children, Sonya, Mathew and Amanda. Sonya is Mr Spellers’ daughter from his first marriage. Mathew and Amanda are children from his third marriage. Mr Spellers, his third wife and their two children lived in Gisborne. Mathew and Amanda had little to do with Sonya growing up.
[10] In 1999, Mr Spellers separated from his third wife, when Mathew was aged 15 and Amanda was about 13. Mr Spellers moved to Auckland.
[11] Between the 1970s and 2005, Mr Spellers had a series of accidents involving head injuries that each required hospitalisation. He reported a 1970s accident in a cycle race and a 1990s fall from a roof whilst working as a carpenter. In June 2000, he sustained very serious injuries from a car accident, including head injuries which resulted in lasting brain damage. In March 2001, he sustained further serious head injuries when he fell from a high ladder at his work after suffering from severe dizziness. After returning to work part time, in December 2001, he fell down stairs at work splitting his head open.
[12] After these latter accidents, Mr Spellers was unable to work. He lived in a caravan park in Auckland. In his retirement, he made small wooden teddy bears.
[13] In 2002, Mathew (aged 18) moved from Gisborne to Auckland. Subsequently, he met Sonya in Auckland a few times.
[14] Unfortunately, given the nature and scope of the dispute between Ms Campbell and Mathew/Amanda, it is necessary to address the subsequent factual chronology in considerable detail.4 I turn to this next, including my factual findings.
2002 to 2005
[15] Around 2002/2003, Mathew and Mr Spellers had an argument on the phone about what Mathew considered to be historical favouritism in the family. Mathew said that Mr Spellers said to him “If that’s how you feel, goodbye. You don’t have a dad anymore and I don’t have a son” and hung up. After that, they did not speak for a number of years until about 2010 (except for one telephone call, dealt with below at [18]).
[16]In 2004, Mr Spellers moved to Ruawai, south of Dargaville.
[17] In about June 2004, Mr Spellers met Ms Campbell at a Lions event. They were neighbours. They remained close friends for 16 years before Mr Speller’s death. They spent a lot of time together, almost daily. Over time, she would help him with grocery shopping so that he would eat more healthily, make meals and freeze the leftovers for him, and help him with his personal affairs. Mr Spellers asked Ms Campbell to marry him on more than one occasion. Although she loved him, she did so as a friend and wanted to preserve that friendship.
[18] Ms Campbell said, and I accept, that Mr Spellers was upset at the lack of contact from Mathew and Amanda. Ms Campbell said that after he was upset one Fathers’ Day, she made some calls and tracked down Mathew at work. Once she connected with Mathew, she passed the phone to Mr Spellers. Mathew disputed the nature of that call, which he said occurred about 2004. He said Mr Spellers rang only to ask for Amanda’s address so he could send her a present for her 21st birthday. Mathew was hurt and his evidence was that he said to Mr Spellers: “You know I turned 21 and didn’t hear from you. I haven’t heard anything from you for a couple of years. When you want to ring me during the day at work to talk to me you can ring me to
4 Also unfortunately, the lengthy common bundle merely listed the various affidavits in order of date sworn without itemising or reordering the exhibits – including detailed medical records covering 15 years – in chronological order. This also resulted in duplication.
talk to me, but don’t ring me in the middle of my working day to ask me what my sister’s address is to send a present to.” It is unnecessary to resolve the dispute about the nature and timing of this call, but I note that in 2004 Amanda was only 18.
[19] On 20 March 2005, Mr Spellers suffered another head injury, probable concussion, in a bicycle accident.
[20] A newspaper article dated 8 June 2005 in the Dargaville District newspaper reported on Mr Spellers’ hopes to increase brain injury awareness. It stated his concentration was poor and he had to write things down to remember.5 Amanda said she was not aware of this article at the time.
2005 will
[21] In September 2005, Mr Spellers engaged a solicitor in the law firm Pegg Ayton Gordon to make a new will and finalise his separation and the dissolution of his third marriage. Mr Spellers gave instructions to obtain a dissolution and appoint Sonya as attorney for both personal care and welfare, and for property.
[22] On 16 September 2005, Mr Spellers executed the 2005 will appointing the partners of the law firm or its successor firm as executors and trustees. The 2005 will provided for the residue of his estate to be transferred equally to his three children (living at the date of his death and attaining the age of 20 years) as tenants in common. He also executed Enduring Power of Attorney (EPOA) appointing Sonya (2005 EPOA).
Mr Spellers’ ongoing health and family contact – 2006 to 2015
[23] On 21 April 2006, Mr Spellers underwent a neuropsychological assessment following a referral from his ACC case manager. The assessment concluded that Mr Spellers had limitations to his verbal abilities, visuospatial abilities, auditory selective attention, sustained attention, reduced speed of information processing, verbal memory, verbal learning ability, non-verbal learning ability, mental flexibility and frontal lobe functioning, and fatigue. The report stated that these limitations were
5 This hearsay evidence was admitted by consent.
consistent with his reported brain injury and were wide ranging and severe because of the cumulative effects of his multiple brain injuries.
[24] Ms Campbell said that Mr Spellers improved a lot between 2006 and 2013 as he became used to working around his brain injury, writing things down to help with his short-term memory issues and resting in the afternoon.6
[25] Mathew said that in 2010 he decided to reach out to Mr Spellers as a result of a family funeral. He visited Mr Spellers in Ruawai that year. He met Ms Campbell and said he was quite taken aback with how abrasive she was towards Mr Spellers. He said she would scold him like a child if he swore, corrected him whenever he tried to speak, and dictated the conversation. Ms Campbell said that Mr Spellers would get frustrated and swear and shout, and that she followed the advice of Bridget at the Dementia Group to take a very firm approach with him and quickly steer the conversation to something else. She said she was trying to protect him from people thinking bad things of him when his behaviour was not his normal lovely self.
[26] In 2010-2011, Mr Spellers did major renovations on his house. He moved in with Ms Campbell during that year so the renovations could be carried out. He did not pay rent, but they shared the cost of food. When he moved back home in 2011, she started making his meals at her place, freezing them and taking them over to him. He paid for the food. She also did his laundry. After he stopped driving (around 2014), she drove him everywhere.
[27] Although Amanda did not suggest she had any falling out with Mr Spellers, the first time she visited him in Ruawai was in 2011. She did not see him again until 2014. She said she tried to phone him and sent texts but they were not answered. She said there were lots of occasions when she would get blank messages back from him at all hours, but no texts from her were adduced in evidence.
[28] Mathew said that between 2012 and 2014 he talked with Mr Spellers on the phone weekly (on a Monday night) or texted on the weeks he was unable to speak.
6 Ms Campbell’s observations of Mr Spellers through the relevant period are relevant, but she cannot give expert evidence on his capacity.
Mathew said the conversation would be repetitive but: “Dad always told me I meant the world to him and I was his number one son. We would laugh because I would say I’m your only son.” Ms Campbell said that while speaking weekly was Mr Spellers’ wish, it did not usually happen which made him sad. There were occasional texts adduced in evidence. The texts also indicate a visit in January 2012 and a Facebook post indicates a visit for Mr Spellers’ 70th birthday in November 2013. Mathew’s affidavit did not suggest there were other visits, but he said in cross-examination there were multiple visits. He also said it was nearly impossible to have any form of relationship with his father without the presence of Ms Campbell and he arranged visits that he did not text or let Ms Campbell know about. He suggested there were messages to Sonya about visits that he did not know he could refer to in evidence. I doubt there were many other visits. I also do not accept that Ms Campbell was limiting Mr Spellers’ communication with his children.
[29] In February 2014, Ms Campbell took Mr Spellers to Auckland to meet up with Mathew to go to Amanda’s wedding in Tauranga. Text messages between Ms Campbell and Mathew before the trip indicate that both were frustrated at Mr Spellers’ worrying and confusion. Ms Campbell said Mathew was aggressive and rude to her. Both Amanda and Mathew said they found Ms Campbell’s scolding of Mr Spellers uncomfortable. At the wedding, Mathew and Ms Campbell had a disagreement after she told Mr Spellers forcefully to stop dancing with a bridesmaid (who had a cast on her leg) fearing that he would fall on her. Mathew told Ms Campbell to leave Mr Spellers alone. Mathew said he was also offended by the way Ms Campbell emphatically denied to people that she and Mr Spellers were a couple, saying “he wouldn’t be able to get it up anyway”. Mathew and Ms Campbell were not on good terms for the rest of the wedding and the ride back from Tauranga to Auckland.
[30] Amanda said she did not contact Ms Campbell after the wedding as it was just very unpleasant. The wedding was not necessarily easy for Mr Spellers either. Mathew said his relationship with Mr Spellers became more distant. After the wedding, Mathew did not see Mr Spellers again until October 2018, addressed below. This lack of contact suggests Mathew had little concern about Ms Campbell’s
treatment of Mr Spellers. I also do not consider the lack of contact was due to the situation with Ms Campbell “becoming increasingly volatile” as Mathew suggested.7
[31] Ms Campbell said that Mr Spellers improved after the wedding and into 2015 following a change of medication. She also said the first time she was aware that he was having capacity issues was around August 2014.8 Ms Campbell said she had a conversation with Mathew noting her concern. However, she said Mr Spellers was still very capable at that point and started to improve when he began regularly seeing a doctor. She said that despite the issues with memory and the frustration causing some behavioural issues, he was still mentally capable of quite a lot in 2014 to 2016. He could still do puzzles, read the paper, watch or listen to and absorb the news, discuss political issues and shows on television, and tape his own programmes.
[32] Mr Spellers’ medical file notes from the Dargaville Medical Centre indicate developing concern in 2014. On 21 March 2014, the notes say: “no real complaints from David although Michelle remains concerned about lapses in concentration – poor balance – etc”. On 9 April 2014, Ms Campbell called the General Practice worried about his vagueness (among other things). On 5 May 2014, she called again saying that she would be going away and was concerned that he would not be able to sort his prescription on his own when next due. On 21 July 2014, she called again worried that he was deteriorating, noticed particularly when crossing the road. On 15 August 2014, she called again and said he was getting more forgetful. On 31 August 2014, Mr Spellers underwent a cognitive screening test, Montreal Cognitive Assessment (MOCA), scoring 19 out of 30. There was no challenge to the admissibility of the medical file notes as business records,9 and I find them reliable.
[33] In November 2014, Mathew exchanged friendly texts with Ms Campbell who had sent him some photos from the wedding trip. That was Mathew’s first text contact with Mr Spellers or Ms Campbell since the wedding in February. It was also the last recorded text communication. Mathew said in cross-examination that there were no more texts because of the breakdown of the relationship with Ms Campbell. This may
7 I deal with an incident in October 2018 below.
8 The February 2014 texts may suggest earlier awareness, as do the medical file notes referred to next.
9 Evidence Act 2006, s 19.
have been a factor, but I doubt the reliability of his evidence that by 2014 he knew that Ms Campbell had Mr Spellers’ phone and messages were not getting relayed. Mathew also said there were phone calls with his father. Again, that seems unlikely given there was no reference to this in his affidavit.
[34] Ms Campbell also said there had been no contact with Amanda since 2014 (in the period before the later wills) apart from an occasional phone call. Amanda said it was quite hard to talk to Mr Spellers as the conversations were repetitive and Mr Spellers could not have an adult conversation. Amanda’s concern that Ms Campbell took away Mr Spellers’ phone was unsubstantiated. Ms Campbell said that the only time his mobile was at her house was when he was there as well.
[35] On 6 January 2015, Mr Spellers had a Northland District Health Board clinical nursing assessment, prior to an appointment with Dr Fernando, physician. The nursing assessment included:
Social Situation: Mr Spellers lives alone. He has three children but has little contact with them. His friend Michelle lives nearby and has supported him for the past four years by providing home cooked meals and taking his shopping.
General
Presentation : Well-groomed gentleman, clean and tidy house. Michelle (Friend) often told Mr Spellers to stop talking if he was going off on a tangent during conversation and also told him to stop swearing frequently during the assessment.
…
Michelle concerned that he does not always look both ways before crossing the road.
Michelle has instigated a system where Mr Spellers phones each evening so that she knows he is alright as she does not visit every day. This has become part of his set routine and he does not forget to do this.
…
Michelle reports that Mr Spellers likes to talk to people but will then go into depth and have word finding difficulties so that people have difficulty knowing what he is talking about. She tends to cut him off from going into detail during conversation.
…
Michelle reports that he easily offends people. He tends to try and tell them how to do their jobs. She tells him to be quiet and leave the person alone if he does this when she is around.
Some anxiety noted as Mr Spellers kept asking if writer had the list of medications and information around head injuries which he had compiled to be given to the Geriatrician. He repeated several times that he wanted this to be given to the Geriatrician.
…
MOCA total - 18/30 Comments –
Mr Spellers is well orientated to his home and location. He manages at home
with a strict routine which he adheres to which reminds him to do all his tasks.
Very poor short term memory noted which both Mr Spellers and Michelle note has deteriorated over the past year. Unable to complete the delayed recall even with category cues and multiple choice cue. He manages this by writing things down and by putting appointments on a calendar which he checks each day. He is an excellent time keeper.
…
Mr Spellers manages all of his activities of daily living independently. He also manages many of his instrumental activities of daily living independently. He can make his own breakfast and snacks/drinks and heats up frozen meals which his friend Michelle prepares, he manages his own housework, finances
– including using an Eftpos card, manage his own medications which are not blister packaged, make and receive phone calls on a land line and cell phone, and make a shopping list and purchase his groceries independently. Mr Spellers reports that he has not driven for over a year so he now relies on Michelle to assist with transport to take him to appointments and to take him shopping. Michelle is happy to continue with making frozen meals for Mr Spellers to heat up in the microwave and to continue provide transport and to take him shopping.
[36] Dr Casey’s expert evidence described the nurse specialist as noting the frontal/executive symptoms of disinhibition and deficits in social cognition with impaired judgement and insight.
[37] On 8 January 2015, Dr Fernando wrote to Dr Humm, Mr Spellers’ general practitioner in Dargaville, following a referral:
Diagnoses: 1. Dementia
…
4.Car accident 2000, work accident 2001, bicycle accident 1970 & 2005
…
Thank you for referring Mr Spellers to me. I saw him with friend Michelle. The history I got from them in a combined fashion was that over the last, perhaps several years, but certainly over the last year his memory has been deteriorating significantly. My history was aided quite significantly by the hard work that Cathryn Henty has put into assessing him. Mr Spellers is a retired cabinet maker. Mr Spellers lives alone but he has great support from his friend Michelle who provides him with his meals as he cannot manage his meals. He does manage his own housework and can use a phone, can use an EFTPOS card and walks to the shops locally but Michelle takes him to Dargaville…
… On neurological examination pupils are equal, eye movements are full, and tongue is in the midline. He has normal tone and power… Cathryn has done a mini mental during which he scored 18/30.
Opinion & Plan:
1.I do feel he has a dementia and I did tell him that. I will be referring him to the Alzheimer’s Association for their support and education.
…
5.I will organise a brain scan and organise follow up with him after that.
6.I discussed Enduring Power of Attorney. I did explain to him on three occasions what Enduring Power is and he was unable to explain it back to me so I am confident that he can’t give Enduring Power of Attorney.
[38] In relation to this comment by Dr Fernando about the EPOA, Dr Casey said it is possible that Mr Spellers’ ability to use or weigh information was unable to be assessed as he could not hold the relevant information in his working memory for long enough.
[39] Ms Campbell said that in late January/early February 2015, Mr Spellers told her he wanted to change his will and that she took him to the appointment with Dr Fernando. Given these medical records, this must have occurred earlier in January 2015. Ms Campbell attended the meeting but could not recall the discussion about EPOA, suggesting that she may not have been listening. She also said she was not aware of Dr Fernando’s report until after Mr Spellers’ death. She acknowledged that Dr Fernando said a report would be coming.
[40] On 9 February 2015, Ms Campbell asked Mr Spellers’ General Practice for all communications to go to her as Mr Spellers was forgetful and missed his CT
appointment. The medical file note stated: “would like a letter to say he can alter his will but does not understand EPOA (his daughter has this)”. Ms Campbell agreed she checked with the doctor but initially denied saying that Mr Spellers did not understand EPOA. I find the file note more reliable. It indicates that Ms Campbell was aware of Dr Fernando’s EPOA comment.
[41] On 26 February 2015, a General Practice note recorded “D/w michelle re will Daughter Sonya is EPOA…”.
[42] On 25 March 2015, Dr Lewis, consultant physician, who Ms Campbell said took over after Dr Fernando retired, saw Mr Spellers and reported to Dr Humm. Dr Lewis said that Mr Spellers’ CT scan:
… does show some moderate cerebral atrophy, but otherwise there was no significant abnormality. He seems reasonably well, he came along with his friend Michelle who was very helpful and looks after him, discussing with him today he seems to be managing very well, the major problem is his short term memory but I don’t think his judgement is significantly impaired…
…
He and Michelle were discussing the possibility of changing his will, he wants to leave some money to charities. Although his short term memory is not terribly good, his long term memory is excellent and I think his judgement is very reasonable and I see no reason at all why he should [sic] be able to change his will by himself.
[43]On 29 June 2015, Dr Humm completed a medical certificate stating:
This is to confirm that the abovenamed David Spellers is a patient of mine whom I have known for several years now. Whilst David does have some problems with his short term memory he is capable of making changes to his will. This opinion has been echoed in the sentiments of Dr Gerald R Lewis – consultant physician with Northland District Health Board.
[44]On 6 July 2015, Dr Humm completed a further medical certificate stating:
This is to confirm that the abovenamed is a patient of mine. He has requested that his caregiver Michelle Campbell is present at all important meetings eg lawyers [sic] appointments.
[45] The General Practice file notes from 31 July 2015 refer to a phone call from Ms Campbell stating:
apparently this morning [Mr Spellers] left a message on her answer phone 6am asking what day it was and saying he had [to] be at work- when she saw him later in the day he was his [normal self]
[46] The General Practice file notes from 20 August 2015 refer to a conversation with Sarah from Bay Audiology:
they have known David [and] Michelle for [several] years
there is some concern about the way Michelle talks to David – seems [too] forceful –
advised I would document this
[however] I feel that Michelle does have his best interests at heart and that yes she is forceful but it seems to be what is needed sometimes with David
they felt she was making all his decisions without his proper consent/approval
2015 will
[47] Ms Campbell said that in 2015 Mr Spellers told her he wanted her to be his EPOA in respect of property and personal care and wellbeing as Sonya was not very involved in his life. He had an out-of-date address for her, and she never visited.10 Ms Campbell said Mr Spellers told her to make an appointment to sort this and that at the same time he wanted to review his will.
[48] Ms Campbell said that she thought Mr Spellers had a really good handle on what his assets were, what his property was worth and to whom he owed legal obligations. She said they had talked at length about providing for his three children and that he was emphatic that Amanda and Mathew had less to do with him and had treated him badly in terms of how often they visited and contacted him. She said Mr Spellers told her he had bought Mathew a car, personalised plates, paid the bond on Mathew’s flat and bought Mathew a table and chairs. He also told her he had bought Amanda a car and paid insurance on it.
10 According to Ms Campbell, Sonya had stayed in contact with Mr Spellers the most and he visited her in Auckland every three to four months until he stopped driving about 2013/2014. Due to her personal circumstances, she became difficult to contact in 2014/2015.
[49] On 25 November 2015, Mr Spellers visited Ms Matich, a partner of the law firm P.A.G Law Ltd, which had succeeded Pegg Ayton Gordon, to change his will and his EPOA. Ms Campbell denied helping to organise the change but said she booked the appointment at Mr Spellers’ request and attended with him. She must have spoken with Mr Spellers about the proposed change to his will given her evidence about discussing provision for his children.
[50] Ms Matich said that Mr Spellers presented as an elderly, tidily dressed gentleman, alert with a pleasant disposition. At the meeting, Mr Spellers provided Ms Matich with a number of notes written on small pieces of paper. Ms Matich acknowledged this was of concern. There was also an inconsistency in the notes as to how his body should be dealt with, but Ms Matich said he was more interested in being cremated and going back to Gisborne.
[51] According to Ms Matich’s evidence and her file note, Mr Spellers told her that he owned a house at 83 Jellicoe Road, Ruawai with a mortgage of approximately
$40,000 in favour of the Bank of New Zealand, Bonus Bonds of approximately $500 and a credit card debt; and that he was on medication for dementia (memory), blood pressure and depression. Ms Matich, who had a reasonable amount of experience in dealing with elderly clients, said that Mr Spellers did not present to her as someone who might have had capacity issues that could give rise to concern.
[52]Ms Matich said that Mr Spellers provided instructions for specific bequests of
$5,000 to each child and for the residue of his estate to be divided equally between Sonya and Ms Campbell.11 Ms Matich questioned Mr Spellers about the provision for his children. His reason for the lesser provision for Mathew and Amanda was that he had not seen them for a period of time. In addition, the value of his property was limited.
[53] At the meeting, Mr Spellers also instructed Ms Matich to prepare EPOA documents appointing Ms Campbell as both care and welfare attorney and property attorney. I accept that Sonya was uncontactable around this time.
11 I infer that Mr Spellers did not give instructions about leaving specific chattels to Mathew, Ms Campbell and Steve Campbell as indicated in the handwritten notes.
[54] On 16 December 2015, Ms Matich met with Mr Spellers to sign the 2015 will that had been drafted to the effect stated. It provided for Ms Campbell and Ms Matich to be executors and trustees. Ms Matich and Mr Spellers had a further discussion about his wishes. As was Ms Matich’s normal practice and to ensure the will-maker was absolutely certain about his expressed wishes, she went through the will on a clause-by-clause basis in plain English. She said she takes considerable time with her elderly clients to ensure that there is full comprehension on the client’s part as to the nature and effect of their instruction.
[55] Around this time, Ms Matich received Dr Humm’s medical certificates dated 29 June 2015 and 6 July 2015 from Ms Campbell, likely as a result of commenting in the November 2015 meeting that a medical certificate would be needed given the disclosure of diagnosed dementia. As indicated, Ms Campbell said she was not aware of Dr Fernando’s report. She also said she did not take Dr Lewis’ report to the appointment because she thought it had been sent through to the lawyer. In any event, there was no medical assessment of capacity on or about the date of the 2015 will.
[56] Paragraph 9 of the 2015 will was drafted to record Mr Speller’s reasons for the limited provision for Mathew and Amanda. It stated:
I DECLARE that I have made limited provision for my children the said
MATHEW JAMES SPELLERS and AMANDA MICHELLE SPELLERS
due to the manner in which they have treated me over the years and I believe that I have made adequate provision for my said children during my lifetime. At the date of this my Will my estate will not be overly large and I wish to make provision for the people who have cared for me in my later years.
[57] Ms Matich’s file note of 16 December 2015 said: “Sonia [sic] was yr first child” and “Mathew & Amanda don’t make much effort w/ him”. Ms Matich understood at the time that Mr Spellers had not seen Mathew and Amanda for several years and that they had very little to do with him. At that time, Ms Matich was not aware of the contact at the wedding in February 2014. Ms Matich acknowledged that Ms Campbell was present at the meeting and so there was a slight awkwardness in delving further into Mr Spellers’ business.
[58] Mathew acknowledged that Mr Spellers purchased his first car for $10,000 and personalised plates when he was 17 and gave him $350 for a bond when he was 19. Amanda also said Mr Spellers bought her a car when she was 17. However, Mathew denied he or Amanda had received any financial assistance over their adult lives.
[59] Also on 16 December 2015, Mr Spellers executed EPOA in relation to personal care and welfare, and property, in favour of Ms Campbell (2015 EPOA). This required Ms Campbell to consult with Sonya in relation to Mr Spellers’ care and welfare matters and consult with Sonya and Ms Matich in relation to property matters.12
Mr Spellers’ ongoing health – 2016/2017
[60]Mr Spellers’ medical file notes in 2016/17 indicated that:
(a)On 18 April 2016:
michelle thinks he’s getting worse with forgetfulness and fixation on things - but she manages him firmly
(b)On 8 September 2016:
In with Michelle who has EPOA and deals with David in an extremely forceful manner
(c)On 27 July 2017:
he hasn’t eaten his supper last night, doesn’t know why
(d)On 7 September 2017:
in with michelle who does all the talking and quickly shuts him down if he tries to talk
…
michelle feels he’s declining ++ would [like] a MOCA done
12 Unfortunately, no contact was made with Sonya to advise her of the new EPOA until December 2017 or March 2018, as set out below.
(e)On 22 September 2017:
MOCA done - today score 14/30 which has declined from 19 in 2014
…
she feels he has rapidly deteriorated this year
(f)On 25 October 2017:
more confused than usual
[61] During this period, some of Mr Spellers’ accounts were overdue and unpaid. Ms Campbell acknowledged it was getting more difficult for him to sort things himself. Sometime in 2017, she persuaded him to go to the bank and arrange direct payments.
2017 will
[62] Ms Campbell said she remembered talking to Mr Spellers in 2017 about increasing the provision for Mathew and Amanda. Ms Campbell said she told him she thought $5,000 (the provision for the children in the 2015 will) was too low but said she did not propose $10,000.
[63] On 29 November 2017, Ms Matich met with Mr Spellers for approximately one hour. Ms Campbell took him to the lawyer’s office but did not attend the meeting. Mr Spellers gave Ms Matich a handwritten and signed note dated 28 November 2017 providing instructions to update his will, which relevantly stated:13
Lawyer 28.11.17
I wish to make alterations to my Will last made Dec 2015, as below
…
I wish to change the amount of monies left to Sonya, Mathew, Amanda (my children), of $5,000 each to be increased to $10,000 each.
donations of 10,000 each are to be made to the SPCA
Starship Hospital
13 Typographical errors in original.
Canteen for Kids Alzheimersn ZZ
Also a gift of 5,000 to Karen Campbell who has provided me with transport, and cleaned my house, when needed.
Steven Campbell is to have anything he wants in the way of tools etc, from my garage.
after all debts and monies for the above requests have been distributed, I whould like Michelle Cambell to have the balance of any money left in my estate.
[64] Ms Campbell said she never saw the handwritten note and was not aware of the alteration to make her the main beneficiary until months after Mr Spellers had made the will.
[65] Ms Matich said Mr Spellers advised her that his concentration was not good and that six weeks earlier (actually on 22 September 2017) he had a MOCA test with a score of 14 out of 30. At the meeting or subsequently, he provided Ms Matich with a copy of an email dated 13 November 2017 from Dr Humm, together with two MOCA tests dated August 2014 and September 2017.14 Ms Matich knew that Mr Spellers was declining cognitively. Notwithstanding this, Ms Matich said that Mr Spellers was cogent and alert, clear not confused, when providing instructions. She said it was almost as if he was excited that someone was giving him attention. His instructions were to give his tools to Steven Campbell (Ms Campbell’s son), $10,000 to each of his three children, $5,000 to Ms Karen Campbell (Ms Campbell’s daughter),
$10,000 to each of four specified charities and the residue to Ms Campbell.
[66] On 6 December 2017, Mr Spellers executed the 2017 will to this effect. The 2017 will also appointed Ms Campbell and Ms Matich to be executors and trustees. Paragraph 9 of the 2017 will stated:
I DECLARE that I have made limited provision for my children the said
SONYA SPELLERS, MATHEW JAMES SPELLERS and AMANDAMICHELLE SPELLERS due to the manner in which they have treated me over the years and I believe that I have made adequate provision for my said children during my lifetime. At the date of this my Will my estate will not be overly large and I wish to make provision for the people who have cared for me in my later years.
14 See above at [32] and [60](e). It appears the intermediate MOCA from January 2015 (above at [35]) was overlooked.
[67] Ms Matich did not recall discussion about the change to the provision for Sonya.
[68]Ms Matich’s staff solicitor’s file note dated 6 December 2017 stated:
1.Client entered room alone with Amanda Match and I.
2.Client was alert and appeared mentally alert.
3.Amanda spoke to client about changes he wished to make to his will, including increasing the amount that he wished to give to his
children.
4.Client was informed that because he wished to make specific gifts
and donations, there may not be much left over in residue depending on how much his property sold for. Client understood this.
5.Amanda spoke to client about which Alzheimer group he would like to leave $10k to. Amanda looked up organisations online and discussion was held around whether he wanted to donate to a nationwide group or a northland group as there are many organisations available. Client stated that he would like to donate to a nationwide group.
6.Client confirmed that he would also like to donate $10k to Starship and CanTeen.
7.Amanda went out of the room to make the relevant amendments and to look up the organisation names.
8.Amanda returned and went over the will with the client. Amanda spoke to the client to ensure that he was not being influenced and that his will was reflective of what he wanted.
9.Client stated that he was not being influenced and that Michelle Campbell had been very good to him.
10.Amanda also spoke to client about the fact that there is limited provision for his children in his will. Client stated that his children are not around in his life and that he does not see them.
11.Amanda confirmed with client once again that the contents of the will was what he wanted. Client confirmed.
12.Client initialled and signed his will in front of Lorraine Baume, Amanda and myself.
[69] The separate file note of Lorraine Baume, secretary, said that Ms Matich went through each clause of the will step by step, that Mr Spellers understood what she was explaining and reiterated what he wanted was correct.
[70]There was no medical assessment of capacity around the date of the 2017 will.
2018 will
[71] Shortly before executing the 2018 will, Mr Spellers had a few days in respite care at the Maungaturoto rest home. He was discharged on 25 March 2018. The rest home progress notes stated:15
3-11 PM. David was waiting @ the front door to be picked up by his EPOA. She got to front door and started yelling @ him, asking him what he was doing there? She then yelled @ him to go get his suitcase, which he proceeded to do. As he was walking away she yelled @ him to “Bloody hurry up”. David arrived with his suitcase before informing her that he couldn’t find his phone. She yelled @ him again, telling him to “bloody well look for it”. She yelled @ him several times, she yelled @ him calling him useless. I found his phone for him, And he put in his pocket. I engaged in a brief conversation with her in regards to how he coped with his stay. David was trying to engage in the conversation, but could not as his EPOA would not let him speak, yelling @ him, telling him to shut up. He tried to say something and she appeared to hit his mouth with her index finger. It appeared that she tried to silence him. I did mention to her that was not necessary as he was trying to tell her something because he was excited.
He tried to speak again and she started poking him in the arm, shoulder, telling him to be quiet. They then left.
[72] Ms Campbell downplayed yelling but acknowledged that she may have raised her voice and said these things to Mr Spellers. She said she may have put her finger up to his mouth and touched his lips, but in cross-examination she said she would never touch or poke him. Ms Campbell likely touched Mr Spellers’ mouth when she put her finger up to stop him talking.
[73] On 29 March 2018, Ms Matich met with Mr Spellers again. Mr Spellers was brought to the office by Ms Campbell and Ms Matich requested that Ms Campbell remain in reception while Mr Spellers met with a staff solicitor and then Ms Matich.
[74]The staff solicitor’s file note stated:16
I met with Mr Spellers on 29 March 2018. He looked well and happy. He came into the office to sign a notice of revocation for his enduring powers of attorney which should have been completed back in 2016.
15 Typographical errors in original.
16 Typographical errors in original.
He came into the room alone with me and when I explained the document that he was about to sign revoking his daughter Sonya Spellers as his attorney, he stated that Sonya was lovely and that she was his eldest child so he cared for her. He then stated that Michelle Campbell had said to him that she would give half of whatever she got from the Will to Sonya.
I read out Mr Speller’s will to him and stated that there is no guarantee that Michelle would actually do this as she would get the residue beneficiary and Sonya was entitled to $10,000.00 from the will. Mr Spellers then stated that Sonya was important to him and he wanted to leave more to her than his other children. I then asked whether he wanted to change the will to reflect this. Mr Spellers confidently stated yes.
I went over the notice of revocation with him which he signed after stating that he understood.
I then went out and informed Amanda of my conversation with Mr Spellers due to his mental capacity issues.
Amanda came into the room and asked Mr Spellers whether he was wanting to say his will and Mr spellers once again said yes.
Client instructed that his will be changed so that Sonya gets half of what michelle was going to get. $10,000.00 will still be given to his other children. Sonya will not get this specific gift. Instead she will get half of what is left over from residue.
The above instructions were confirmed several times with the client who was adamant that Sonya was to get more in the will because she could use it and he had a special relationship with her because she was the eldest. The other children do not keep in touch with him. He stated that Sonya has no children of her own and that he wants to give more to her because the others do not visit him. He stated
“it’s been 7 years and they have only come to visit me once” and “Sonya is the most important one with me”
The Will was changed by Amanda and Amanda read out the changed clauses. Mr Spellers agreed that it was what he wanted. Lesley Robinson had by this stage entered the room and was also present.
Amanda then left the room and Lesley and myself were present with Mr Spellers.
I went over the full will with Mr Spellers once again.
He agreed that it was what he wanted and then executed the will. Lesley and I were witness to this.
[75] The change from Mr Spellers’ 2017 will was to provide for Sonya to receive half of the residue (instead of $10,000). Mr Spellers executed the 2018 will that day, 29 March 2018. Clause 9 reverted to the wording of the 2015 will.17
[76] The same day, Mr Spellers also signed a revocation of the 2005 EPOA, which was sent to Sonya.18
[77] Ms Campbell said she was not aware of the 2018 will at all when it was done, or until the subsequent PPPR proceedings (referred to below).19 However, she also said that Mr Spellers told her that he wanted Sonya to receive more than Amanda and Mathew. This suggests they had some discussion about the change to his 2017 will.
Subsequent events
[78] Mr Spellers’ General Practice medical file notes in April/May 2018 included the following entries:
(a)On 11 April 2018:
spoke to michelle
she feels he is deteriorating with memory [would] like another MOCA done
…
[Michelle] wonders when is the time for placement
(b)On 16 April 2018:
Whilst David was in [Maungaturoto] rest home Michelle was witnessed to slap him in the mouth
I will discuss this with Tracy Chapman [the rest home manager] … printed September’s MOCA for Marlene 14/30
maybe the time is right for rest home placement – he was apparently very happy for the respite stay
17 At [56] above.
18 Earlier, on 22 December 2017, Sonya was sent the 2015 EPOA by tracked courier but this may not have been received.
19 Proceedings under the Protection of Personal and Property Rights Act 1988.
Advised Michelle has always been very solicitous towards David – and active in seeking good care for him – but that the way she speaks to him makes me feel really uncomfortable
(c)On 3 May 2018:
in with Michelle who continues to talk to David very forcefully MOCA repeated and has deteriorated to 8/30
David unable to grasp simple concepts or really answer my questions
– just smiles ...
[79] Ms Campbell denied ever slapping Mr Spellers. She relied on a statement from Ms Chapman (dated 24 April 2020, for the PPPR proceedings) that “Michelle has been the primary person meeting David’s needs and after getting to know Michelle better, she cares very strongly for David and only has his best interests at heart”.20 The reference to slapping was likely a reference to the incident of 25 March 2018, addressed above at [72].
[80] On 19 July 2018, Dr Humm issued a Health Practitioner’s Certificate certifying that she assessed Mr Spellers on 3 May 2018 and in her opinion he lacked capacity in relation to his personal care and welfare.
[81] On 30 July 2018, Mr Spellers was admitted into full time residential care. There was evidence as to the level of contact that the three siblings, and Ms Campbell, had with Mr Spellers after that date when he was in care, but it is unnecessary to address this – it is not relevant to the issues of testamentary capacity or undue influence.
[82] Some other subsequent events need to be mentioned. In early October 2018, Ms Campbell contacted Sonya in relation to signing papers to sell Mr Spellers’ house to pay for his rest home care. Ms Campbell said that Sonya had frozen Mr Spellers’ bank account and they could not pay the rest home fees, the mortgage was in arrears and bills were outstanding. Ms Campbell said that she used some money drawn down
20 Ms Chapman did not give evidence in this proceeding. Aside from being hearsay, having seen the statement in context, it relates to Ms Campbell’s conduct after 30 July 2018 and I do not consider it is relevant to the allegation of slapping.
on her mortgage to pay Mr Spellers’ mortgage, and that she also paid some of his bills totalling over $4,000.21
[83] As a result, Mathew and Amanda became aware that Mr Spellers was in a rest home. On 13 October 2018, Sonya, Mathew and Amanda visited Mr Spellers at the rest home. Mathew said that he and Mr Spellers hugged for a long time, both crying, while Mr Spellers said over and over “my son”. Mathew said that Mr Spellers then said: “Help me, help me, Michelle has stolen all my money”. Amanda said that Mr Spellers told them Ms Campbell had all his money, which may have been a more accurate recollection and statement. Mathew also said that the rest home manager took the three siblings aside and spoke to them about her concerns regarding Ms Campbell’s treatment of him. The statements attributed to the manager are hearsay, but as mentioned the earlier medical file notes indicate some forceful behaviour by Ms Campbell towards Mr Spellers.
[84] Sonya, Mathew and Amanda then travelled to Mr Spellers’ house to collect some personal belongings. They went to Ms Campbell’s house to ask for the key or to be let in. The evidence about the unfortunate encounter that followed was disputed. According to Mathew, Ms Campbell was very hostile and refused to allow them access. He said they had no choice but to call the police who asked her to come and let them into the house. According to Ms Campbell, Mathew was very aggressive and spoke nastily to her, saying “we have got Power of Attorney, we want keys to Dad’s house”. He accused her of treating Mr Spellers badly and not taking him clothes or photos. Ms Campbell said that Sonya stepped in and put her hand out to restrain Mathew. Ms Campbell acknowledged that given the aggressive manner in which she was approached, she told the three that she would not release the keys. She said Mathew said he would go to the police. They left and came back about an hour later with a policeman. He asked Ms Campbell to come down and open the house, which she did. She said that she was so upset with the attitude that she rang Ms Matich crying. Ms Matich said that Ms Campbell telephoned her in a highly agitated state and said that Mathew was quite aggressive. Ms Matich advised Ms Campbell to ask the police for assistance and to let them have access to the house.
21 This was reimbursed when the PPPR proceedings reached a point when Ms Campbell was appointed joint property manager with Amanda – see [88] below.
[85] The police did subsequently turn up and Ms Campbell accompanied the police to the property and provided access. It is unnecessary to resolve the dispute as to exactly what happened to prompt police involvement. Suffice to say, both Mathew and Ms Campbell expected the worst of each other and behaved accordingly.
[86] Mathew and Amanda indicated that it was after hearing Ms Campbell had Mr Spellers’ money during this visit that Sonya froze the bank account. It is unclear and unnecessary to decide whether freezing the bank account had already occurred before Ms Campbell contacted Sonya, as Ms Campbell said, or occurred after the visit.
[87] Sonya took issue with Ms Campbell’s 2015 EPOA, which resulted in PPPR proceedings by Ms Campbell in the Family Court. It is unnecessary to address the respective positions except to note that the challenge to Ms Campbell’s 2015 EPOA was disputed and I accept that Ms Campbell believed the 2015 EPOA was valid when she acted as Mr Speller’s attorney.
[88] In May 2020, the EPOA dispute reached a point where Ms Campbell and Amanda became joint property managers and Amanda was granted personal welfare.
[89] Later in 2020, arrangements were made to move Mr Spellers to a rest home in Te Puke, nearer Amanda and her family living in Tauranga. On 31 October 2020, Mathew and Amanda travelled to Maungaturoto rest home to collect Mr Spellers and move him to the new rest home. Unfortunately, he suffered severe car sickness and developed pneumonia. He was admitted to hospital the following day.
[90]On 11 November 2020, Mr Spellers died in Tauranga Hospital.
[91] On 1 February 2021 the High Court Registrar declined to grant probate in common form because Mr Spellers’ death certificate indicated that he had advanced vascular dementia.
[92]On 30 July 2021, Ms Campbell renounced probate of the 2018 will.
[93] In September 2022, Ms Matich commenced this proceeding. She sought and obtained directions for service on, and has served, all the beneficiaries of the various wills as well as on Mr Spellers’ two minor grandchildren (by service on their mother, Amanda). Ms Campbell, Mathew and Amanda are the only potential beneficiaries who have taken steps and given evidence in the proceeding.
Financial allegations
[94] One other aspect of the dispute needs mention. In their evidence, Mathew and Amanda also took issue with spending by Ms Campbell from Mr Spellers’ bank account, before and after Mr Spellers was permanently admitted to the rest home in July 2018. Mathew alleged that a total of over $14,700 was identified as questionable, including female only clothing store purchases and trips to Auckland without Mr Spellers. Mathew said this spending continued until Sonya challenged the EPOA in October 2018 and the bank accounts were frozen.
[95] Ms Campbell said that Mr Spellers recognised that after quite a few years of cooking for him, it was not right that she was using her power at her cost to do his laundry and cooking. She was also using her car to run him around. She said that Mr Spellers wanted to pay a fortnightly amount to her to cover expenses. From about April 2013 to November 2014, he made fortnightly payments of $50. Eventually, Ms Campbell asked him to stop the payments because she knew he did not have a lot of money and they were such good friends. After November 2014, he would occasionally pay for petrol for her car as a thank you for running him around.
[96] Ms Campbell said that Mr Spellers could use his EFTPOS card and manage payment of his bills until about 2018, and she would only use his card paying for groceries or other things he needed. She said he had signed a bank authority for her. She identified various items of expenditure in response to Mathew’s allegations. She attributed them all to Mr Spellers, including a few items, such as female clothing, that she said he asked her to buy herself from him, for example for her birthday or Christmas. She said the expenses identified as trips to Auckland were incurred on Mr Spellers’ behalf because on her way home from visiting family in Auckland she would do grocery shopping for Mr Spellers in Auckland and bring it home to Ruawai
with her. She said Mr Spellers would regularly take cash out for day-to-day expenses
– there was one withdrawal for $400 which was used to pay towards his bill at the respite Bupa facility in Dargaville in 2018. She said he would pay a lot of his bills using cash because a lot of the trades people in Ruawai did not have EFTPOS.
[97] She said that after Mr Spellers went into the rest home permanently, he told her to charge him for the petrol used for taking him to appointments and out of the rest home regularly for excursions. She said the expenses at Countdown of a little over
$1,000 were to buy all of Mr Spellers’ personal items. The $500 withdrawal from Countdown included in that amount was mainly used towards his rest home fees. The cash withdrawals of $340 were for bills at the rest home for podiatry and haircuts, and cash for him to buy things when they were out. She said she took $1,600 out on 12 February 2019 to pay towards rest home costs. There were regular payments out for house and contents insurance and for his mortgage.
[98] Mathew and Amanda may have feared the worst when they saw the bank statements. However, I accept Ms Campbell’s evidence about these financial matters. Mathew’s allegations in particular about misuse of Mr Spellers’ money were unfounded. Amanda instead had a rather sad perspective, acknowledging that Ms Campbell helped Mr Spellers but saying that she was paid for doing so. Neither Mathew nor Amanda were in a position to know what happened between 2004 and 2018 given their lack of contact with Mr Spellers. I also accept that Ms Campbell spent by far the most time with Mr Spellers during this period and that she helped him, as indicated above, out of friendship despite the reimbursement she received at times.
[99] Finally, I observe that unfortunately Mathew and Amanda had an overly negative view of Ms Campbell, as she did of them. Neither side was well placed to judge the other given their very limited contact over 15 years, but their views have no doubt contributed to the dispute.
Summary terms of each will
[100] Given the extent of the factual chronology, it is convenient to summarise the material terms of each of Mr Spellers’ wills, which were in relatively simple form:
2005 will
Executors: partners of Pegg Ayton Gordon or its successor firm
Residue:equally to the three children (approximately $88,000 each based on a $265,000 estate)
2015 will
Executors: Ms Campbell and Ms Matich
Gift: $5,000 to each of the three children
Residue:equally to Sonya and Ms Campbell ($125,000 each based on a $265,000 estate)
2017 will
Executors: Ms Campbell and Ms Matich Gifts: tools to Steven Campbell
$10,000 to each of the three children
$5,000 to Karen Campbell
$10,000 to each of four specified charities
Residue: to Ms Campbell ($190,000 based on a $265,000 estate)
2018 will
Executors: Ms Campbell and Ms Matich Gifts: tools to Steven Campbell
$10,000 each to Mathew and Amanda
$5,000 to Karen Campbell
$10,000 to each of four specified charities
Residue:equally to Ms Campbell and Sonya ($100,000 each based on a $265,000 estate)
Issues
[101] 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:
(a)when he had testamentary capacity; and
(b)that was not the result of undue influence.
[102] By 2006 at least, Mr Spellers had evident cognitive impairment. However, cognition and capacity are not the same. The first issue is whether Mr Spellers had testamentary capacity at the time of the relevant will. Given the need to identify the last valid will, it is convenient to address the wills in reverse chronological order. Before doing so, I set out the applicable principles.
Testamentary capacity
Applicable principles
[103] The principles relating to testamentary capacity are well settled. The relevant onus and standard of proof in such a case has been described by the Court of Appeal as follows:22
[3]In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity.
22 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [20] citing Bishop v O’Dea [1999] 18 FRNZ 492 (CA).
[4]If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have testamentary capacity rests on those who seek probate of the will.
[5]That onus must be discharged on the balance of probabilities. Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.
[104] The principles relating to the assessment of testamentary capacity were set out by the Court of Appeal in Woodward v Smith and Loosley v Powell,23 restating the principles laid down in the leading English case of Banks v Goodfellow:24
(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.
(3)Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But
(i)though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.
(ii)It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.
(4)It is not necessary that the testator 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.
23 Woodward v Smith [2009] NZCA 215 at [19]; and Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19].
24 Banks v Goodfellow (1870) LR 5 QB 549 at 565-568.
(5)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.
(6)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.
(7)Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all.
(8)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.
(9)But if that standard is not met, he will lack capacity.
[105] As the Court of Appeal has said, it is important to treat these Banks v Goodfellow criteria as guiding propositions rather than as a formula.25
[106] It is not only the date of the signing of the will that is relevant to the issue of capacity.26 Under the rule in Parker v Felgate,27 if, when the instructions were given by a will maker, that will maker had testamentary capacity, the will can be valid even though that testamentary capacity had been lost by the time of execution. As the Court of Appeal noted in Loosley v Powell,28 Parker v Felgate has often been applied and accepted as good law in English decisions. It has been criticised but the England and Wales Court of Appeal decision of Perrins v Holland did not accept the criticism.29 Parker v Felgate has been accepted by this Court.30 In Loosley v Powell the Court of Appeal did not consider that case was the appropriate occasion to review the rule’s
25 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19].
26 At [22].
27 Parker v Felgate (1883) 8 PD 171 at 173-174.
28 Loosley v Powell at [23].
29 Perrins v Holland [2010] EWCA Civ 840, [2011] Ch 270 at [13]-[23].
30 Tansley v Trustees Executors and Agency Co of New Zealand HC Wellington CP698/92, 17 March 1994 at 5; Re Prasad [2012] NZHC 1489 at [97(e)]; and Farn v Loosley [2017] NZHC 317, [2017] 3 NZLR 383 at [43].
application in New Zealand.31 Under the rule, the Court must be satisfied that there has been no revocation of the earlier instructions when the will is signed, all the more so when the earlier instructions involve a significant change from an earlier will for no apparent rational reason.32
[107]One further point is relevant in this case. As the Court of Appeal said in
Loosley v Powell:
[35] It is imperative that a court does not substitute an examination of testamentary capacity with its own perception of moral obligation. A court must not reject the will-maker’s reason for a change in a will because the court sees it to be unreasonable. A will-maker is free to change a will and unfairly and indeed brutally disappoint expectations, providing that is done with a full understanding and capacity. A potential beneficiary in that situation has only the statutory relief available in the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. That relief is not available in this case. Yet nor should a court ignore an irrational change if it is a factor that could, with other factors, indicate incapacity…
Onus
[108] The starting point is that there is evidence raising capacity as a tenable issue, so the presumption is displaced. The onus of proving capacity is on those who seek probate of the will. Although that is Ms Matich in relation to the 2018 will, her neutral stance means the onus in effect rests on Ms Campbell who (despite renouncing probate) seeks to uphold the 2018 will, or in the alternative the 2017 or 2015 wills.
Dr Casey’s expert evidence
[109] I have incorporated some of Dr Casey’s observations already in the factual chronology. More generally, Dr Casey considered that Mr Spellers’ head injury accidents were the primary factor in the young-onset cognitive impairment, first delineated in a neuropsychological assessment when in his early 60s (in 2006). The superimposed age-related dementia was brought forward by these recurrent cerebral insults. The cognitive impairment became progressive, and the diagnosis of dementia was made in January 2015.
31 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [25].
32 At [24].
[110] Dr Casey said that the higher cortical functions of working memory and frontal executive function are required to be relatively intact in the capacity to decide. In the capacity to make a will, there also needs to be relative preservation of autobiographical memory. The working memory needs to hold and consider facts and recall the relevant autobiographical events so as to be able to use and weigh the issues to make a sound judgement and decision.
[111] In this regard, Dr Casey helpfully explained that there were two elements to Mr Spellers’ cognitive impairment: his short-term memory (and possibly some patchy autobiographical long-term memory, which was not well assessed); and his frontal executive ability in relation to problem-solving, planning, using and weighing judgement. If he had difficulty remembering the individual components, he might have difficulty holding them all in his mind at the same time to assess correctly the moral claims against his estate.
[112]I address Dr Casey’s opinions in relation to each will below.
2018 will
[113] Dr Casey considered that given Mr Spellers’ MOCA score had fallen to 9/30 in May 2018, five weeks after the 2018 will, the nature and extent of his dementia raised serious doubt as to his capacity. She concluded that Mr Spellers would not have demonstrated testamentary capacity at the time of signing the 2018 will.
[114] Ms Matich acknowledged that with hindsight Mr Spellers probably did not have capacity to make the changes in his 2018 will and that he was a “yes man”. Moreover, Ms McGoldrick, for Ms Campbell, conceded that Mr Spellers did not have capacity at the time of the 2018 will.
[115] I conclude on the evidence that Mr Spellers did not have capacity at the time of the 2018 will. The declining MOCA scores, the other evidence of his deterioration within weeks of the will and Dr Casey’s expert opinion all indicate that Mr Spellers’ dementia was such that he lacked capacity on 29 March 2018. Even assuming he still understood the nature of the will and the extent of his property (which had not materially changed), it is unlikely he appreciated the claims to which he ought to give
effect and, even if he did, it is likely that his dementia prevented the weighing of the competing claims.
2017 will
[116] Ms McGoldrick submitted that Mr Spellers had capacity at the time of the 2017 will, whereas Mr Conder submitted he did not. Ms McGoldrick relied on his clear note with his instructions and the law firm’s file notes. She emphasised the statement in Woodward v Smith that “though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains”.33
[117] Dr Casey accepted that Mr Spellers wanted to change his 2015 will in 2017 but considered that Mr Spellers had moderate cognitive impairment. Referring to the September 2017 MOCA score of 14/30, Dr Casey considered there was marked impairment of delayed recall, attention, language and abstract thinking. There was no ability to perform simple subtractions. Dr Casey considered this raised significant doubt as to whether Mr Spellers would have been able to appreciate the impact of the changes in the distribution of the estate and the potential claims of those who might expect to benefit from the 2017 will. Dr Casey also considered that Mr Spellers’ comment at the time of his 2018 will that he wanted to leave more to Sonya than his other children also supported the significant doubt about the rationale for the 2017 will.
[118] I conclude on the evidence that Mr Spellers did not have capacity at the time of the 2017 will. His MOCA score had declined to 14/30 in September 2017 and the medical notes show other evidence of deterioration. I accept Dr Casey’s opinion that Mr Spellers’ comment at the time of his 2018 will that he wanted to leave more to Sonya than his other children also supports the significant doubt about the rationale for the 2017 will. The 2017 will removed Sonya as a residual beneficiary, leaving her with only the same specific bequest as Mathew and Amanda ($10,000). Assuming Mr Spellers understood the nature of the will and the extent of his property, which was
33 Woodward v Smith [2009] NZCA 215 at [19], citing Banks v Goodfellow (1870) LR 5 QB 549 at 566.
not discussed at the time of the 2017 will, it is unlikely he appreciated the claims to which he ought to give effect and, even if he did, it is likely that his dementia prevented the weighing of the competing claims. Removing Sonya as a residual beneficiary was inconsistent with the position he took before and after the 2017 will, without there being any contact with her or other rationale evident for the change.
2015 will
[119] Here too, Ms McGoldrick submitted that Mr Spellers had capacity at the time of the 2015 will, whereas Mr Conder submitted he did not. Mr Conder referred to Dr Casey’s evidence. He submitted that the 2015 medical opinions did not sufficiently address the Banks v Goodfellow test and that Mr Spellers’ handwritten notes given to Ms Matich were worrying. He submitted that Mr Spellers did not have a grasp on the three questions as required, but at the hearing he accepted that Mr Spellers correctly identified his assets and liabilities. Mr Conder focused on the third requirement, submitting that Mr Spellers’ comprehension of his moral duty may have been affected by his view of the relationship with Mathew and Amanda. He submitted that the relationship was not one of total estrangement as Mr Spellers suggested to Ms Matich and that his description of the relationship was disconnected from the facts. Mr Conder focused on the period 2014 to 2015.
[120] I deal first with Dr Casey’s evidence. She was critical of Dr Humm’s June 2015 certificate that Mr Spellers was capable of making changes to his will and of Dr Lewis’ earlier March 2015 report that he could see no reason why Mr Spellers should not be able to change his will. As Dr Casey noted, Dr Humm’s certificate did not say that Dr Humm assessed his capacity to make a will — at least it did not indicate whether she applied the Banks v Goodfellow criteria. Ms McGoldrick accepted this was an absence of evidence, but submitted that Dr Humm may have had valid reasons for her conclusion that Mr Spellers had capacity to make a will, namely the report of Dr Lewis. Dr Casey also said that Dr Lewis’ report contained no exploration of the elements of the Banks v Goodfellow criteria. Dr Casey said it lacked reasons indicating Dr Lewis had taken into account all the issues with Mr Spellers’ impairment or carried out a cognitive test that needed to be performed in these situations. In short, Dr Casey was sceptical about the two doctors’ conclusions.
[121] Dr Casey also said that at the time of the 2015 will, it was not recorded in the legal file notes that Mr Spellers knew that he was revising his will, nor if the moral obligation and potential for claims under the Family Protection Act 1955 were discussed. Dr Casey said it was not clear that Mr Spellers demonstrated the ability to use and weigh the relevant information and foresee the potential consequences of his decision making. Given the history of dementia with established deficits in both memory and frontal executive function, she considered this raised doubt as to whether Mr Spellers had the requisite capacity to revise the will.
[122] Accepting that the evidence raises doubt, I make three comments about Dr Casey’s evidence. First, Dr Casey acknowledged that she never met Mr Spellers, unlike Dr Fernando and Dr Lewis in 2015. Also, Dr Humm knew Mr Spellers. As the Court of Appeal said in Loosley v Powell,34 the opinions of expert witnesses who did not know the will maker, and who make their assessments after death, must be treated with caution. They are trying to assess mental health from documentary evidence, and the observations of others, without the benefit of knowing or meeting the will maker.
[123]Also, in Green v Green, Winkelmann J said:35
… where a will has been professionally prepared and the lawyer has formed the view that the will maker has capacity, the Courts should not too readily overturn that view, particularly on the basis of expert evidence, where the expert did not interact with the testator. As the English Court of Appeal said in Hawes v Burgess:36
[60] My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.
34 Loosley v Powell [2018] NZCA 3; [2018] 2 NZLR 618 at [94], citing Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65] and [80]-[89].
35 Green v Green [2015] NZHC 1218 at [89(f)], referring to Hawes v Burgess [2013] EWCA Civ 94.
36 Hawes v Burgess [2013] EWCA Civ 94. See further Revie v Druitt [2005] NSWSC 902 at [34].
[124] Secondly, there is a distinction between the absence of a medical practitioner’s capacity assessment and a lack of reasons stated in a certificate or report. As Ms McGoldrick submitted, Dr Casey was really criticising the doctors’ lack of reasons. The extent of each doctors’ assessment is unclear.
[125] Thirdly, while Dr Casey’s observations about explicit reference to the Banks v Goodfellow criteria no doubt reflect best practice, capacity may be established on the basis of other evidence without such explicit reference in a medical practitioner’s formal capacity assessment at the time of the will. As indicated, in assessing the available evidence, the Court must apply the Banks v Goodfellow criteria as guiding propositions rather than as a formula.37 Also, like the Court, experts too need to avoid substituting an examination of testamentary capacity with their own perception of moral obligation.38
[126] Notwithstanding those comments, as Dr Casey said, the evidence raises doubt as to Mr Spellers’ capacity. His MOCA score was 19/30 in August 2014 and 18/30 in January 2015, when Dr Fernando diagnosed vascular dementia and considered him unable to give an EPOA. There is no dispute that generally dementia worsens over time although we have the subsequent assessments by Dr Lewis and Dr Humm. Mr Conder characterised the subsequent assessments as being by people with less qualification than Dr Fernando. I accept that Dr Fernando and Dr Lewis were physicians whereas Dr Humm was a general practitioner, but she knew Mr Spellers. The handwritten notes Mr Spellers gave to Ms Matich, including some inconsistency, at least highlighted his short-term memory issue.
[127] As Mr Conder accepted, the evidence indicates that Mr Spellers understood the nature of the will and the extent of his property. Given Mr Spellers’ specific instructions and the process adopted by Ms Matich (going through the will with him on a clause-by-clause basis in plain English), I accept he understood he was making a formal will. He explained the extent of his property correctly to Ms Matich.
37 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19].
38 At [35].
[128] The remaining issues are whether Mr Spellers appreciated the moral claims of his children and was 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. I consider that Mr Spellers likely appreciated the moral claims of his children given the discussions about them with Ms Matich on 25 November and 16 December 2015. He explained why he was making limited provision for Mathew and Amanda. The file note of 16 December 2015 confirmed that Mr Spellers indicated that Sonya was his first child and that Mathew and Amanda did not make much effort with him. Despite Mathew and Amanda’s evidence – and without attributing blame – that was an accurate summary by Mr Spellers of the position in late 2015. I do not accept there had been extensive contact with them that was not acknowledged, nor that the nature of the 2015 will itself indicates that Mr Spellers was incapable of understanding the moral claims of his children.
[129] The evidence also indicates that Ms Campbell was more than a neighbour and friend to Mr Spellers. He had a close and loving friendship with her and she was the one person who looked after him on a regular basis for a number of years before he made the 2015 will (and thereafter). He moved in with her in 2010/2011 when he renovated. As Ms McGoldrick submitted, Ms Campbell was a huge and loyal support to Mr Spellers and part of the reason he was able to live independently for so long. What that meant to him, even by 2015, cannot be overlooked. His desire to make provision for her in his will was rational and fair (notwithstanding the modest financial compensation she received at times). His priorities had likely changed in the 10 years since 2005. As Ms McGoldrick submitted, the four reasons included in clause 9 of the 2015 will for Mr Spellers’ limited provision for Mathew and Amanda were all borne out in the evidence, at least to some extent.39
[130] I accept Ms Matich’s evidence, as someone with a reasonable amount of experience in dealing with elderly clients, that Mr Spellers did not present to her as someone who might have had capacity issues that could give rise to concern. As indicated, she said she takes considerable time with her elderly clients to ensure
39 Ms McGoldrick indicated the value of Mr Spellers’ property was considerably less in 2015.
that there is full comprehension on the client’s part as to the nature and effect of their instruction.
[131] Ms Matich also had Dr Humm’s certificate stating that Mr Spellers was capable of making changes to his will, albeit from six months before, together with Dr Lewis’ earlier, consistent opinion. As indicated, Dr Humm was Mr Spellers’ general practitioner and had known him for several years. Dr Lewis’ opinion, while earlier in the year, indicated a clear assessment that, although Mr Spellers’ short-term memory was not terribly good, his long-term memory was excellent and his judgement was very reasonable. As indicated, Dr Lewis saw no reason at all why Mr Spellers should not be able to change his will. Dr Humm certified capacity three months later. This was several months before Ms Matich was instructed, and the medical file notes, including Ms Campbell’s observation of Mr Spellers during the latter part of 2015, refer to one example of forgetfulness or disorientation on 31 July 2015, but Ms Campbell’s other observational evidence during 2014 to 2016 was consistent with the medical opinions – Mr Spellers was still undertaking activities that required cognition (puzzles, reading the paper, watching or listening to and absorbing the news, discussing political issues and shows on television, and taping his own programmes). While acknowledging the risk that Mr Spellers may have deteriorated in the months after the 2015 medical opinions (and their lack of explicit reference to the legal test), I consider it more likely that at the time of the 2015 will Mr Spellers was still capable of exercising judgement that was not disordered in relation to his sense of right. As indicated, his perception of the efforts of Mathew and Amanda, and the care provided by Ms Campbell, was confirmed in the evidence.
[132] Stepping back, the 2015 will was professionally prepared by an experienced independent lawyer who formed the view that despite his dementia diagnosis Mr Spellers had capacity, which the Court should not too readily overturn, particularly on the basis of expert evidence where the expert did not interact with the will maker.
[133] For these reasons, on the evidence I am satisfied on the balance of probabilities that Mr Spellers had capacity to make his 2015 will.
2005 will
[134] I also mention the 2005 will briefly. No party advanced incapacity in relation to the 2005 will but Mr Conder acknowledged that a doubt was raised. He accepted there was a reasonable possibility Mr Spellers did not have capacity at the time of the 2005 will.
[135] Dr Casey also acknowledged that by the time of Mr Spellers’ neuropsychological assessment in 2006 he already had significant impairment, which raised a question about his capacity at the time of the 2005 will. However, she noted the 2005 will was a simple will with no need to quantify relative distributions or think about the Family Protection Act and moral claims, so she considered Mr Spellers probably had capacity at that time.
[136] Accepting that Mr Spellers’ mental impairment likely declined over time, some of Dr Casey’s comments in relation to the 2015 will would apply also to the 2005 will. There was no evidence at all of a medical practitioner’s capacity assessment around the time of the 2005 will, nor reference to the Banks v Goodfellow criteria. However, for the reasons already given I do not consider that precludes a finding of capacity. I accept the 2005 will was simple in that it left Mr Spellers’ estate to his children equally and there was an explanation in the will for why Mr Spellers was not giving anything to his former wife due to their relationship property division. If it were necessary, I would have concluded that, despite the evidence of mental impairment by 2005 and the lack of assessment, Mr Spellers had capacity to make the 2005 will.
Undue influence
Applicable principles
[137]The relevant principles were set out recently by the Court of Appeal in
Gorringe v Pointon:40
40 Gorringe v Pointon [2023] NZCA 42.
Undue influence: relevant principles
Burden of proof
[21] The burden of proof rests upon the party alleging undue influence in the making of a will. Whereas a party alleging undue influence in respect of an inter vivos gift may rely on an evidential presumption of influence if there is a relationship of influence and the transaction “calls for explanation”, the orthodox position is that an evidential presumption is not available in a challenge to a will on the grounds of undue influence.41 Thus, in Green v Green Winkelmann J observed that in relation to alleged undue influence in the making of a will there was no evidential presumption that could be relied upon.42
[22] However, the Judge here observed that the question whether an evidential presumption is available in will challenges is not settled in New Zealand.43 Having found that Judith’s relationship with Joan was one of trust and confidence,44 the Judge stated:
[189] I also find that the contents of the 2016 Will call for explanation based on Ms Henderson’s evidence that leaving the residue to Joan’s son-in-law, Christopher if Judith died before Joan, was a less common approach. This is not the same thing however as finding that the 2016 Will was irrational on its face. I reject the proposition that the 2015 Will calls for explanation for the reasons previously set out.
(Footnote omitted.)
[23] The parties advised that those observations did not reflect their approach in the High Court. Both counsel confirmed that they adopted (and continued to adopt on appeal) the orthodox approach of this Court in Carey v Norton.45 We follow that approach on this appeal.
Proving undue influence
[24] A person asserting undue influence must show the alleged influence led to the making of the impugned transaction, and that the influence was undue in the sense that the transaction was not the result of the free exercise of an independent will on the part of the person at whose expense the transaction was made.46
[25] Specifically with reference to the context of will-making, Winkelmann J said:47
41 Carey v Norton [1998] 1 NZLR 661 (CA) at 663 per Thomas J and 668-673 per Keith and Williams JJ.
42 Green v Green [2015] NZHC 1218; (2015) 4 NZTR 25-017 at [101(a)].
43 Gorringe v Pointon [2022] NZHC 342 at [153], referring to observations of Elias J in Norton v Carey HC Auckland M191/95, 1 July 1996 at 51-52.
44 Gorringe v Pointon [2022] NZHC 342 at [188].
45 Carey v Norton [1998] 1 NZLR 661 (CA).
46 Green v Green [2016] NZCA 486; [2017] 2 NZLR 321 at [35] and [48], approving Winkelmann J’s summary of the relevant principles in Green v Green [2015] NZHC 1218; (2015) 4 NZTR 25-017 at [100].
47 Green v Green [2015] NZHC 1218; (2015) 4 NZTR 25-017 at [101] (footnotes omitted).
(b)Pressure of whatever character can amount to undue influence if it overbears the will of the testator. As Sir JP Wilde recognised:
To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, — these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else’s.
(c)It is not necessary to provide direct evidence of undue influence, circumstantial evidence is sufficient. However, as Fisher J observed in Hayden v Simeti:
… it is not enough to show that others had the means and opportunity to unduly influence the deceased and that there has been a recent testamentary disposition in their favour. The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.
[26] Reiterating the point that undue influence can be inferred from circumstantial evidence, the authors of Theobald on Wills observe that direct evidence is rare as coercion will usually occur behind closed doors.48
[27] One of the grounds on which the High Court’s decision in Green v Green was challenged on appeal was that, in cases involving wills, undue influence can only be found if the circumstances surrounding the making of the will are inconsistent with any other hypothesis, that is, undue influence must be the only possible hypothesis on the evidence.49 In rejecting that contention this Court said:50
In our view, the correct position is as stated in more recent Australian authorities, namely that before the court can be satisfied undue
48 Alexander Learmonth and others Theobald on Wills (9th ed, Thomson Reuters, London, 2021) at [4-060].
49 Green v Green [2016] NZCA 486; [2017] 2 NZLR 321 at [45]-[47].
50 At [47] (footnotes omitted).
influence has been proved, it must be satisfied the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole. That is consistent with the approach taken by the High Court of New Zealand in such cases as [Hayden v Simeti], Mahon v Mahon, and Re Keast. It is an approach that still allows appropriate recognition for the special status of formally executed wills without imposing such a demanding standard on those alleging undue influence as to render the doctrine of little or no value in the testamentary context.
[28] That echoes the current state of the law in the United Kingdom, as summarised in Theobald on Wills:51
It has often been said that it must be shown that the circumstances attending the execution must be inconsistent with any hypothesis other than its having been procured by undue influence, but this is overstating the position; the standard of proof is the balance of probabilities. Certainly, it is not enough to show merely that the facts are consistent with undue influence, or that there was an opportunity to exercise undue influence; but the true test is whether undue influence is the most likely hypothesis, having regard to the inherent unlikelihood of someone practising undue influence on a testator.
[29] The authors of Theobald on Wills also comment that an enfeebled testator may be more susceptible to coercion without physical threats,52 citing Re Edwards on the point:53
The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A “drip drip” approach may be highly effective in sapping the will …
Onus
[138] Mr Conder submitted that Ms Campbell bears the onus or at least an evidential onus as there was a relationship of trust and confidence. As indicated, the burden of proof rests upon the party alleging undue influence in the making of a will, and the orthodox position is that an evidential presumption is not available in a challenge to a will on the grounds of undue influence.54 In any event, Ms Campbell has met any
51 Alexander Learmonth and others Theobald on Wills (9th ed, Thomson Reuters, London, 2021) at [4-060].
52 At [4-061].
53 Re Edwards [2007] EWHC 1119 (Ch); [2007] WTLR 1387 at [47(vi)].
54 Gorringe v Pointon [2023] NZCA 42 at [24].
evidential onus applying a modest threshold of scepticism.55 After her long period of friendship with and caring for Mr Spellers, the dispositions in the 2015 and subsequent wills are explicable. Mathew and Amanda bear the onus of proof in relation to undue influence.
Dr Casey’s expert evidence
[139] Dr Casey considered that Mr Spellers was a vulnerable elder with dementia in a psychosocial situation which rendered him highly susceptible to undue influence. Dr Casey noted that Mr Spellers lived alone, was socially isolated and was a long distance from his children. They found communication with him difficult. He became dependent upon Ms Campbell. The medical notes also indicate concerns about her style of interaction with him. Dr Casey concluded that undue influence needed to be considered, but appropriately did not go further in addressing Ms Campbell’s actions.
2018 will
[140] Having concluded in the absence of opposition that Mr Spellers lacked capacity at the time of the 2018 will, it is unnecessary to address whether there was undue influence at that time.
2017 will
[141] Having concluded that Mr Spellers also lacked capacity at the time of the 2017 will, I address only briefly whether there was undue influence at that time.
[142] I note that Dr Casey considered that Mr Spellers’ comment at the time of his 2018 will that he wanted to leave more to Sonya than his other children was a red flag for undue influence in relation to the 2017 will (given the inconsistency). Even so, it is necessary to evaluate the evidence as a whole, acknowledging that proof of undue influence can be inferred from circumstantial evidence.
55 J Stephen Kós “Undue Influence” in Andrew S Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) 679 at 696; cited with approval in Hingston v Hingston [2022] NZCA 568 at [49].
[143] Mr Conder submitted that Ms Campbell exerted a reasonably high level of control over Mr Spellers and the natural inference is that there was undue influence. He submitted that Mr Spellers plainly trusted Ms Campbell. He said that assessing undue influence here requires findings in relation to Ms Campbell’s forcefulness towards Mr Spellers and what she was doing for him (which might create a legitimate moral duty). He submitted that undue influence depends on Mr Spellers’ perception of reality. In this regard, I note that undue influence only falls to be considered if Mr Spellers had capacity despite any misperception.
[144] As indicated, Ms Campbell said she was not aware of the alteration to make her the main beneficiary until months after Mr Spellers had made the 2017 will. There was no direct evidence that she had any discussion with him about the will in advance except as to whether the $5,000 provided to Amanda and Mathew in the 2015 will was on the low side. Proof of undue influence depends on inferences.
[145] I have doubted Ms Campbell’s evidence that she was unaware of Dr Fernando’s comment about Mr Spellers’ ability to give an EPOA.56 She was subsequently appointed EPOA in December 2015. However, I do not infer from this that her evidence about her limited discussions with Mr Spellers about changing his 2015 will is to be disbelieved. Ms Campbell may have considered that the subsequent medical opinions from Dr Lewis and Dr Humm were sufficient to indicate that Mr Spellers had capacity to make a will (and an EPOA).
[146] Despite the doubtful aspect of Ms Campbell’s evidence, the red flag, Mr Spellers’ trust in Ms Campbell, her firm if not forceful handling of him when he was confused or swore and her obvious financial interest in being the sole residual beneficiary of the 2017 will, I am not satisfied that undue influence can be inferred from the evidence. There is insufficient evidence to infer that Ms Campbell said or did anything to pressure Mr Spellers to change his will to her advantage, in particular to make her the sole residual beneficiary of the 2017 will. If Mr Spellers had capacity, the steps taken by Ms Matich to check that he was not being influenced (recorded in
56 At [39]-[40] above.
the 6 December 2017 file note referred to above at [68]) also weigh against any such finding.
2015 will
[147] Here too, Mr Conder submitted that Ms Campbell exerted a reasonably high level of control over Mr Spellers and the natural inference is that there was undue influence. He also submitted that the 2015 will itself calls for an explanation.
[148] Dealing with the transaction itself first, the 2015 will of course benefitted Ms Campbell. For the first time, she became a beneficiary, to the extent of half the residue of the estate. This made her the second largest beneficiary, to receive just less than Sonya. It was a material change from the previous 2005 will.
[149] Mr Conder referred to the fact that the 2005 will included Mathew as a beneficiary of one third of Mr Spellers’ estate even though at the time Mr Spellers was not speaking to Mathew at all. That is accepted but it does not follow that 10 years later, after limited contact as described, it was inexplicable for Mr Spellers to change his mind, particularly given the long friendship he had established with Ms Campbell and the care she had given him (even though she had been reimbursed at times). I also do not accept that Mathew’s relationship with Mr Spellers was warmer in 2015.
[150] Further, the omission to follow through in the 2015 will with suggested gifts to charities mentioned to Dr Lewis earlier in the year adds little. There was no suggestion that Ms Campbell sought to dissuade Mr Spellers from giving to charity, and that would be inconsistent with his subsequent gifts to charity in the 2017 and 2018 wills.
[151] On the other hand, as Dr Casey noted, Ms Campbell frequently featured in the clinical notes from 2014. In 2014, Ms Campbell herself expressed concerns about Mr Spellers’ capacity and about his ability to self-care and his judgement and safety. He was a vulnerable elder highly susceptible to undue influence. She facilitated the acquisition of the two medical reports provided by Dr Humm in 2015. As I have found, she must have spoken with Mr Spellers about the proposed change to his will
given her evidence about provision for his children.57 She made and attended the appointment with Ms Matich in relation to the 2015 will. She was prepared to be appointed EPOA despite Dr Fernando’s comment, as indicated above. I also accept that she had a degree of control over Mr Spellers’ day-to-day activity. He trusted her.
[152] Even so, despite Ms Campbell’s firm handling of him as described even at this earlier stage and her financial interest in being a residual beneficiary of the 2015 will, I am not satisfied that undue influence can be inferred from the evidence. Here too, there is insufficient evidence to infer that Ms Campbell said or did anything to apply pressure to Mr Spellers to change his will to her advantage by making her a residual beneficiary. The steps taken by Ms Matich before finalising the 2015 will were not as explicit about influence as at the time of the 2017 will but, as indicated, she had a further discussion with Mr Spellers about his wishes and, to ensure he was absolutely certain about his expressed wishes, she went through the will on a clause-by-clause basis in plain English. This also weighs against a finding of undue influence.
Conclusion
[153] Mr Spellers’ 2017 and 2018 wills are invalid on the ground that he lacked testamentary capacity at the time of making those wills.
[154] 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.
Result
[155] 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.
57 At [49] above.
Costs
[156] Given the history of this dispute and the result, I urge the parties to take a reasonable and proportionate approach to costs. The costs principles applicable under the High Court Rules 2016 and the probate cases are settled. They provide guidance to the parties to assist in the allocation and quantification of costs in a cost-effective way.
[157] If costs cannot be agreed, memoranda (not exceeding four pages) may be filed within 20 working days, and I will determine costs on the papers.
Gault J
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