Estate of Underwood
[2025] NZHC 788
•4 April 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-615565
[2025] NZHC 788
IN THE ESTATE of the late NANCY CARRUTHERS UNDERWOOD BETWEEN
MARGARET MAUD UNDERWOOD AND HELENE AGNES PHYLLIS YOUNG
Applicants
AND
STEPHEN UNDERWOOD AND ALISTAIR HOUGHTON UNDERWOOD
Caveators
Hearing: 19 November 2024
Further affidavit evidence received 29 January and 18 February 2025
Further submissions received 12 and 26 February and 13 March 2025
Appearances:
R T Wilson for Applicants
A S Cavanaugh for Caveators
Judgment:
4 April 2025
JUDGMENT OF McHERRON J
[1] The children of the late Nancy Underwood disagree about how her estate should be divided. Nancy’s sons, Stephen and Alistair Underwood, question the validity of Nancy’s last will dated 22 June 2020 (the 2020 Will).1 Stephen and Alistair have concerns about Nancy’s testamentary capacity at the time she signed the 2020 Will. They also have concerns about whether Nancy was the subject of undue influence before signing that will.
1 I use first names in this judgment for ease of reference because key individuals share the same surname. No disrespect is intended.
ESTATE OF UNDERWOOD [2025] NZHC 788 [4 April 2025]
[2] The High Court has jurisdiction to grant and revoke probate of wills and letters of administration of the estates of those who have died.2 An application for a grant of administration can be made:3
(a)without notice where a will’s validity is not contested or questioned (often referred to as an application in “common form”);4 or
(b)in solemn form when the applicant elects to do so or is ordered to do so.5
[3] Because of their concerns, Stephen and Alistair say Nancy’s 2020 Will should be the subject of an application for probate in solemn form. That will involve a formal hearing before a judge at which their concerns about lack of testamentary capacity and undue influence can be fully aired.
[4] Therefore, the primary issue in the present judgment is to determine whether to order the applicants to make a solemn form application for probate.
Background
[5] Nancy Underwood died aged 100 on 24 June 2023. She had three children, Stephen, Alistair and Margaret Underwood.
[6] In a will dated 19 April 2011, Nancy left the residue of her estate in equal proportions to her three children. However, in the 2020 Will, Nancy left:
(a)to Alistair and Stephen, a painting each and Woolworths shares worth approximately AUD60–75,000;
(b)to Margaret, Nancy’s house and its contents, and jewellery.
2 Administration Act 1969, s 5.
3 High Court Rules 2016, 27.3.
4 Rule 27.4.
5 Rule 27.6; John Earles and others Dobbie’s Probate and Administration Practice (7th edition, LexisNexis, Wellington, 2025) at 429.
(c)any remaining residue (which Stephen understands will be minimal, particularly after a debt owing to his father’s estate is repaid) to Alistair and Stephen equally.
[7] For a large part of her adult life, Margaret lived in the United States. There, she married her husband James. In 2015, Margaret and James returned to New Zealand and moved in with Nancy, who was then aged about 92.
[8] On 4 February 2016, James, Margaret and Nancy entered into a deed recording an agreement under which James and Margaret would live in Nancy’s house and provide care and support to her (2016 Deed). The 2016 Deed provided:
(a)arrangements for particular chattels, including art works;
(b)for joint payment of gas and electricity bills;
(c)Nancy would pay for rates, insurance and home maintenance costs;
(d)Nancy would not dispose of her interest in the house without the prior written consent of James and Margaret;
(e)James and Margaret would be entitled to remain in occupation at the house for up to 12 months from the date Nancy died or entered a rest home;
(f)despite James and Margaret providing personal and property maintenance services for Nancy, they would have no claim to any share in her property arising from those services.
[9] Margaret and Helene Young (the other executor of the will), applied for probate on 21 July 2023.
[10] In September 2023, about three months after Nancy’s death, Stephen and Alistair lodged a caveat against a grant of probate in her estate.6
[11] Margaret and Ms Young were granted an order nisi on 19 April 2024. They apply under s 61 of the Administration Act 1969 (the Act) to make the order nisi absolute.7 Under the order, Stephen and Alistair are required to “show cause” if they wish to avoid the order being made absolute.8
[12]Section 61 of the Act provides:
61 Where a caveat lodged, court may grant order nisi
In every case where a caveat has been lodged and has neither lapsed nor been withdrawn, the following provisions shall apply:
(a) the court may, upon application on behalf of the person applying for administration, supported by affidavits upon which, if there had been no caveat, administration would have been granted, may make one or other of the following orders:
(i)in any case where the court is satisfied that the caveat has been or may have been lodged vexatiously or frivolously, an order for the discharge of the caveat or for security for costs; or
(ii)in any other case, an order nisi for the grant of administration to the person applying, which order nisi shall name a time and place for showing cause against the same, and the court may enlarge any such order from time to time:
…
(d) in any case to which paragraph (c) does not apply, if on the day named in the order nisi, or on the day to which the order is enlarged, the caveator does not appear, the order nisi may be made absolute, upon an affidavit of service; but if the caveator appears, the hearing shall be conducted in the same manner as nearly as may be as in an ordinary action, and the court may order—
(i)that the order nisi be made absolute or discharged; or
(ii)that the application for administration be made in solemn form,—
6 This caveat was renewed on 6 September 2024, due to the delays in timetabling this matter to a “show cause” hearing.
7 Administration Act 1961, s 61(d)(i).
8 Section 61(a)(ii) and (d)(ii).
and any order made under subparagraph (i) or subparagraph (ii) may be with or without costs, as may be just, and, if the court so directs, those costs may be paid out of the estate:
(e) at any hearing under paragraph (d), the parties may, subject to the rules, verify their cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, be subject to be cross-examined by or on behalf of the opposite party orally in open court, and after cross- examination may be re-examined orally in open court by or on behalf of the party by whom the affidavit was filed:
…
[13] If the Court finds that Stephen and Alistair have not raised sufficient grounds to show that a full inquiry should be made into Nancy’s testamentary capacity or that there was undue influence when she made the 2020 Will, then the Court will make the order nisi absolute.
[14] Conversely, if the Court finds that Stephen and Alistair have raised sufficient grounds, then the Court may order the application for probate to be made in solemn form, with a contested hearing to follow. The Court will only discharge the order nisi at the show cause hearing if there is uncontested evidence in support of the order not to appoint the applicants as administrator. The order nisi can otherwise continue pending resolution of the application for probate in solemn form.
[15] As caveators, Stephen and Alistair contend Nancy lacked testamentary capacity, and additionally, or alternatively, Nancy was unduly influenced. They ask the Court to direct Margaret and Helene to apply for probate in solemn form so that a full inquiry can be made into the circumstances in which Nancy made her last will.
Legal principles governing “show cause” hearings
[16]The Court takes the following approach in a “show cause” hearing:9
(a)the onus is on the caveator to show why the order nisi should not be made absolute;
9 Re Antoniadis [2023] NZHC 775 at [19] citing Re Estate Turk (Turk v Turk) [2020] NZHC 1495. See also Re Estate of Ruesink [2023] NZHC 1578 and Re Jurisich v Harris [2016] NZHC 525.
(b)to discharge the onus, the caveator must raise sufficient grounds to establish either that the order nisi should be discharged or that a full inquiry is appropriate;
(c)the threshold for satisfying the Court that there are grounds for a full inquiry is low. It has been described as a requirement to establish an element of doubt,10 and lower than the standard of the balance of probabilities;11
(d)the practice of the Court in a show cause hearing is not to decide the ultimate issue as to the validity of the will;
(e)the Court does not usually resolve disputed facts at a show cause hearing. Rather, if the caveator’s evidence is disputed, the Court normally orders the application for administration to proceed in solemn form so that these issues can be fully aired and determined; and
(f)if a caveator does not raise sufficient grounds to establish that a full inquiry should be made into the matters raised by the caveator, the order nisi will usually be made absolute.
[17] Whether Stephen and Alistair “show cause” in this instance will be determined by reference to the Court’s usual approach to testamentary capacity and undue influence.
Testamentary capacity
[18] The principles relevant to ascertaining testamentary capacity were comprehensively set out in Woodward v Smith,12 including:
(a)The will-maker must understand the nature of the act and its effects, and the extent of the property of which she is disposing.
10 Van der Kaap v Wilson CA 97/04, 14 June 2005, citing Re Nissenbaum [1939] NZLR 94 (SC).
11 O’Neill v O’Neill [2018] NZHC 1356 at [11].
12 Woodward v Smith [2009] NZCA 215 at [19] discussing Banks v Goodfellow (1870) LR 5 QB 549. See also Loosley v Powell [2014] NZCA 3.
(b)The will-maker must be able to comprehend and appreciate the claims to which she ought to give effect.
(c)The will-maker must be free of any disorder of the mind or delusion which would influence the will-making.
(d)It is not necessary that the will-maker should view her will with the eye of a lawyer, nor comprehend its provisions in their legal form. It is sufficient if she has such a mind and memory as will enable her to understand the elements of which it is composed and the disposition of her property in its simplest forms.
(e)The will-maker need not possess capacity to the same extent as previously. Her mind may have been in some degree weakened, her memory may have become in some degree enfeebled; and yet there may be enough left clear 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.
[19] There is a distinction between knowledge and approval of a will and testamentary capacity. Testamentary capacity includes the ability to make choices. Knowledge and approval requires no more than the ability to understand and approve choices that have already been made.13
Undue influence
[20] Stephen and Alistair are also concerned that Nancy was acting under the undue influence of Margaret at the time of making the 2020 Will.
13 Dobbie’s Probate and Administration Practice, above n 5, at [49.5.9] citing Collins v Collins
[2023] NZHC 1491 at [48].
Is there cause for the matter to proceed to a contested hearing by way of an application for probate in solemn form?
Concerns about Nancy’s capacity
[21] Stephen emphasises that Nancy was 97 when she made the 2020 Will. He says that, for some years prior to that, he would not have considered her to have the capacity to make decisions about things like a will. He says his mother was forgetful but was very good at hiding her loss of memory. Stephen is concerned that when she made the 2020 Will, Nancy had just spent months in COVID-19 lockdowns with Margaret and James, with little or no in-person contact with anyone else.
[22] When discussing funeral arrangements, Stephen and Alistair were surprised to find out that Helene had been named as an executor.
[23] Because the 2020 Will was so inconsistent with Stephen’s understanding of Nancy’s previous wishes (to divide her estate between her children equally), he requested Quin Law’s will file and Nancy’s medical records for the 12 months before she executed the 2020 Will.
[24] Catherine Quin, the lawyer who took Nancy’s will instructions and drafted the 2020 Will for her, wrote in a file note dated 25 June 2020 (three days after Nancy signed the 2020 Will):
I do understand that Nancy is vulnerable. She is living in a house with Margaret and Margaret’s husband. She is reliant on them for food, fluids, transport, socialisation. Making this even worse is Covid with what is happening to elderly people. Nancy can’t go to the supermarket even …
[25] Stephen also expresses his concern that the 2020 Will refers to a rocking horse that Nancy had given him in about 2014. He says it does not make sense that Nancy would give this to him, when he already possessed the rocking horse and she was aware of that.
[26] Margaret acknowledges that Nancy’s short term memory was diminishing but says that this in no way impacted Nancy’s reasoning capacity or her ability to make decisions and think things through.
Additional medical records disclosed
[27] At the hearing it was apparent that not all relevant medical records for Nancy had been produced. In particular, medical records from between the date Nancy signed the June 2020 Will and her death, were missing. As Nancy had a stroke about six months after the 2020 Will, the caveators consider that medical records from around that time could provide the best evidence of Nancy’s capacity.
[28] I adjourned the s 61 hearing to allow Mr Wilson to obtain and provide those medical records to the caveators. I allowed the applicants until 17 January 2025 to file and serve a further affidavit annexing all remaining medical records for Nancy from June 2020 until the date of her death that had not already been produced (including all medical records relating to her stroke in late 2020 and any capacity or other neurological assessment). An affidavit was duly filed and served containing such records and counsel for the caveators filed further submissions on 12 February 2025 in relation to those additional medical records. Subsequently, it came to the attention of counsel for the applicants that a further bundle of medical records had not been provided. They arranged for a further affidavit attaching those medical records to be filed and served on 18 February 2025. Following that, the caveators filed and served further submissions arising from the new affidavit of documents on 26 February 2025 and the applicants filed their submissions in reply on 13 March 2025.
Further submissions on behalf of caveators
[29] Having reviewed the additional medical records filed on 17 January 2025, the caveators submitted that the additional records contained several references to Nancy being confused, disoriented and in cognitive decline. Counsel highlighted four entries of particular concern:
(a)An occupational therapy home visit note dated 22 May 2020 which states:
Present at visit was daughter Margaret + S.I.L Jim Underwood
…
Some cognitive decline reported by family.
The caveators note that this document was created exactly one month before Nancy signed the 2020 Will and just three days before she had attended Quin Law on 25 May 2020 to give instructions for the preparation of that will. The caveators submit that this is a contemporaneous record of how Margaret described her mother’s cognitive ability to health professionals at the time. They also point out it is consistent with the observations of Stephen and Alistair that Nancy had been in cognitive decline for some time before making her last will.
(b)A physiotherapy mobility assessment dated 13 July 2020 that states:
Cognitive impairment: [ticked “Y”].
Comments: STML [short term memory loss]. Family support [with] all medication plus STM.
The caveators note that this document was made approximately three weeks after the 2020 Will was signed. They submit that the reference to short term memory loss is consistent with the evidence they gave that Nancy was by this time forgetful and highly reliant on Margaret helping and assisting her with responses.
(c)A Montreal Cognitive Assessment (MoCA) score of 17/30, recorded in a reporting letter dated 11 February 2021, but apparently conducted in December 2020. The caveators point out that a score in the range of 10-17 signifies “moderate cognitive impairment within the assessment scale”. They submit this assessment was completed approximately six months after the 2020 Will was signed but that the relatively low assessment score would tend to support the evidence put forward by the caveators that Nancy’s cognitive abilities had been in decline for some time before this and for some time before the signing of the 2020 Will.
(d)An admissions planning form dated May 2021 that answers the following questions affirmatively:
Do you have an activated Enduring Power of Attorney (EPOA)?
If yes, EPOA document sighted confirming activation and copy available.
The caveators submit that the answers given to these two questions also appear reliable and were discussed at the time the form was completed as the no answers to both questions are struck out and replaced by yes answers. An enduring power of attorney for personal care and welfare can only be activated as a result of a medical professional assessing that capacity has been lost. The “yes” tick indicates that the EPOA had been sighted along with the activation document. This reference, the caveators submit, suggests that Nancy had been assessed as having lost capacity at some time before May 2021.
[30] The additional medical records disclosed on 18 February 2025 contain further references to Nancy’s cognitive impairment and further detail about the MoCA assessment undertaken in December 2020, six months after Nancy made her June 2020 Will. The caveators submit that the following documents from these records are of note:
(a)A referral form dated 29 December 2020 following Nancy’s stroke on 3 December 2020. Pages two and four of that form contain the following statement:
Cognitive Impairment/Existing Mental Health Conditions Yes.
(b)A letter from Dr Jennifer James dated 11 February 2011 which states:
Nancy originally presented on 3 December 2020 for symptoms of facial droop, left sided weakness, and slurred speech, NIHSS 3. She was accepted for OPHRS for rehabilitation. Noted to have a MoCA of 17/30 while on OPHRS …
(c)Taranaki DHB medical records dated 30 December 2020 which record the following from the “cognition” section of the occupational therapist’s report:
Cognition:
Mini-ace completed 18/12/2020.
Score 17/30 indicating a moderate cognitive impairment is likely present.
Attention – 1/4.
Short term memory – 5/7. Long term memory – 3/7. Clock drawing – 1/5.
Fluency – 2/7.
Nancy requires support with her memory and would benefit information in written form with a support person present.
[31] I observe there appears to be an arithmetical error in the calculation of the mini- ace score for the MoCA assessment, recorded as 17/30. However, adding the numbers in each category gives a total of 12 rather than 17. This is still within the range for moderate cognitive impairment on the assessment scale. However, it is much closer to the lower end of that range. I also observe that the score for Nancy’s long term memory at 3/7 is worse than her score for short term memory (5/7).
[32] The caveators submit that this evidence shows it is likely Nancy’s cognitive abilities had been in decline for some time prior to the 2020 Will being made. They submit there is no suggestion in the notes that this was a new issue arising out of the stroke, but had been an ongoing issue for some years as Nancy’s cognitive abilities were in decline. They submit the concerns raised by the caveators at the “show cause” hearing are genuine and are supported by the readily available evidence, including the additional medical records demonstrating that there is a real question to be answered as to whether Nancy had testamentary capacity and/or was susceptible to the undue influence of Margaret at the time of making significant changes to her will at the age of 97. They submit that where there are conflicting indications in the readily available medical evidence, as there are here, that a “show cause” hearing is not the appropriate forum for the resolution of that factual conflict. Rather, the solemn form process would be the appropriate form of proceeding.
[33] In response, the applicants deny that the additional medical records indicate any significant impairment in Nancy’s cognition before or at the time of the signing of the 2020 Will. They submit that the record of Dr James dated 30 December 2020 is the best record of the cognitive test carried out and the best record of the position when Nancy was discharged from hospital that day. However, they point out that Nancy had suffered a significant stroke on 3 December 2020 following which she had spent approximately four weeks in hospital recovering. The mini-ace assessment was completed two weeks after the stroke and indicated a moderate cognitive impairment was then likely present. However, in the applicants’ submission the assessment done two weeks after the stroke is not an indicator of cognitive function before the stroke or at the time of the 2020 Will. Apart from the mini-ace test there are no other records suggesting significant cognitive impairment at any time. The applicants submit that it is more likely the cognitive impairment assessed in December 2020 was caused by the stroke and that Nancy recovered from that impairment as she recovered from the stroke.
[34] The applicants deny that the EPOA was ever activated. They submit that the indications to the contrary in the medical records are not reliable. The applicants point to the absence from the medical records of any diagnosis suggesting mental incompetence.
My assessment
Testamentary capacity
[35] First, I consider that given Nancy’s advanced age and physical frailty, it would have been prudent to organise an inquiry into her testamentary capacity with an appropriate medical professional prior to the making of the 2020 Will.14 I acknowledge Ms Quin’s affidavit that she considered Nancy to be “very obviously competent” that “it would never be challenged” and Ms Quin’s significant experience in the area. Against that, I note the argument for counsel for the caveators that where abrupt and unfair changes to a will occur, fuller and clearer evidence of capacity is required.15
14 See Turk, above n 9, and Re Estate of Ruesink, above n 9.
15 Estate of Margaret Ruth Austin [2013] NZHC 2374.
[36] Second, I note the descriptors of Nancy as “vulnerable” and “reliant” with the “extra stresses” created by the COVID-19 pandemic and restrictions.
[37] Third, the 2020 Will is a significant departure from Nancy’s previous wills and significantly benefits Margaret at the expense of Nancy’s two other children.
[38] Although Nancy was 97 at the time of the 2020 Will, her age does not itself give cause for doubt as to her capacity. Nor are concerns about Nancy’s short-term memory sufficient on their own to raise a doubt as to her testamentary capacity.
[39] The pre-June 2020 medical records produced for the purposes of this proceeding do not strongly suggest that Nancy had a cognitive impairment prior to making the 2020 Will. To the contrary, when Nancy was admitted to hospital on 20 December 2019 with a chest infection, medical notes record:
Alert, cognitively sharp and oriented to TPP ˂ good insight, competently expressed NFR wishes (no CPR/intubation) …
[40] Ms Quin had been Nancy’s lawyer for about nine years before the 2020 Will was signed.16 Ms Quin was formally a registered nurse. She states in her affidavit that she has been doing rudimentary capacity assessments since 1988, has a large elder law practice and has been practising in mental health law for at least 10 years. Ms Quin’s evidence was that she considered Nancy to be in “rude mental health” at the time she made the 2020 Will, and that Nancy was very obviously competent. Ms Quin deposes that she did not seek a medical assessment because she considered Nancy’s competency would never be challenged.
[41] I have also had regard to the evidence of Pam Ward, who provided alternate care for Nancy when Margaret was away and unable to provide care herself. Ms Ward trained and worked as an aged care provider in Queensland for 10 years and later became a coordinator for a team of aged care community workers. Ms Ward would care for Nancy on an annual basis, while Margaret was away typically for two months at a time between 2016 and 2023. Ms Ward’s evidence was that “Nancy’s mental
16 Despite some suggestion by Alistair to the contrary, no evidence was presented that Ms Quin had been Margaret’s lawyer before being engaged by Nancy.
faculties remained good right up until the time she died” and that “despite her tiredness Nancy was always onto it mentally”. Ms Ward refers to many examples of Nancy’s activities which she deposes support her conclusions as to Nancy’s capacity. Several other witnesses provided affidavits in support of Nancy’s competency up to the time of her death.
[42] In the present case it is relevant that, where abrupt and unfair changes to a will are made, the Court generally requires clearer evidence of testamentary capacity.17
[43] The applicants submit the changes made by Nancy in her 2020 Will were neither abrupt nor unfair. Margaret and James had been caring for Nancy for over four years when the 2020 Will was made. The process for making the 2020 Will took nearly a month from Ms Quin’s first appointment to Nancy’s signing the will. Moreover, they say Nancy had cogent and fair reasons for favouring Margaret in the 2020 Will. Margaret had provided considerable care and support for Nancy over many years, avoiding the need for Nancy to move permanently into a rest home.
[44] However, I accept that at least from the point of view of Stephen and Alistair, by comparison with Nancy’s 2011 will, the changes in 2020 were an abrupt change. Because they stood to inherit less of Nancy’s property, this change would seem unfair to them. Further, the medical records provided after the hearing relating to the period between the 2020 Will and Nancy’s death do raise some doubts as to her capacity in that period.
[45] Accordingly, I conclude that the questions that have been raised concerning Nancy’s possible lack of testamentary capacity at the time she made the 2020 Will are sufficiently well-founded to justify the need for an application for probate in solemn form.
Undue influence
[46] The principles applying in a claim of undue influence were summarised by Fisher J in Re Estate of Dudley; Hayden v Simeti, as follows:18
17 Estate of Margaret Ruth Austin, above n 15.
18 Re Estate of Dudley; Hayden v Simeti HC Auckland P1042/92, 14 May 1993 at 11–12.
(a)The key question is whether, because of extraneous pressure from others, the will-maker has signed a will contrary to his or her own wishes.
(b)Persuasion which has left the final choice to the will-maker is not undue influence. Where there is evidence of strong influence or pressure, the Court will approach the question of the will-maker’s own wishes with suspicion. However, if satisfied that the will-maker’s wishes have not been overborne, and that in the end they wanted the will in that form, the Court must uphold the will. In those circumstances the ultimate source of the will is not the external pressures but the exercise of the will-maker’s own free judgement.
(c)The onus of proof lies upon the proponent of undue influence. However, direct evidence of undue influence is not to be expected. These cases usually turn upon the strength of the circumstantial evidence. The question is whether from all the surrounding circumstances, with particular emphasis upon the result of the will and the circumstances in which it was executed, undue influence can be inferred.
(d)For this purpose, all the circumstances bearing directly or indirectly upon the free will of the will-maker at the time of execution are relevant. These include illness, pain and suffering, physical weakness and mental deterioration falling short of testamentary incapacity. They also include dependency upon others in legal, business, social, medical and/or domestic matters. One should view with special care any powerful need, obligation, or vulnerability on the part of the deceased which others might be in a position to exploit.
(e)However, 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.
[47] Dunningham J adopted these principles in Re Sheward; Drummond v Davidson, in which she also accepted the alleged undue influence need not be accompanied by malign intent.19 A finding of undue influence does not require there to be improper conduct on the part of the person influencing. Rather it refers to whether there has been an impairment of the will-maker’s judgment, such that it can no longer be said that the will represents that person’s independent and informed judgement.20
[48] Having carefully reviewed the evidence, the caveators have not at this stage provided a well-founded basis for their claim that the 2020 Will is invalid on the grounds of undue influence. In combination, and solely for the purposes of the present preliminary assessment, the following factors indicate the 2020 Will represents Nancy’s true wishes:
(a)Nancy had independent legal advice. There is no evidence that Ms Quin had any conflict of interest affecting her ability to give independent legal advice to Nancy.
(b)Ms Quin’s confidence both at the time of taking instructions and drafting the 2020 Will and in her subsequent affidavit, that the 2020 Will expressed Nancy’s genuine wishes.
(c)Ms Quin’s understanding from discussions with Nancy that she was very grateful Margaret and James had moved from America to care for her. Her instructions were that her 2020 Will should reflect her appreciation to them for their care.
19 Re Sheward; Drummond v Davidson [2016] NZHC 1888 at [187]–[188] citing Carey v Norton
[1998] 1 NZLR 661 (CA) at 670.
20 Re Sheward; Drummond v Davidson, above n 19, at [188].
(d)Ms Quin’s impression of Nancy’s independence and her inability to imagine Margaret making Nancy do something that she did not want to happen.
(e)Ms Quin’s evidence that Margaret showed patience and appeared always to put Nancy first over her own interests.
(f)The fact that the making of the 2020 Will was considered and a draft of the will had been left with Nancy for about 12 days before Ms Quin returned and the 2020 Will was signed.
(g)The evidence that Nancy was strong-willed and made her own decisions.
(h)The evidence that Nancy had several other social contacts, including Pam Ward and Helene Young, both of whom gave evidence of Nancy’s gratitude to Margaret.
(i)The evidence that Margaret and Nancy had a loving and close relationship which was mutually respectful and did not involve either of them pressuring the other.
(j)The lack of evidence Nancy felt stressed or under pressure from Margaret and James.
(k)The note signed by Nancy explaining the reasons for her change in the 2020 Will.
(l)The rational explanation for Nancy’s change to her will.
(m)Although Ms Quin recognised that Nancy was vulnerable, she nevertheless concluded that there was no undue influence.
(n)The lack of evidence of Nancy raising any concerns with other family members about Margaret controlling Nancy’s access to other family members or about any other matter concerning Margaret.
(o)Although Stephen expressed concerns about receiving little information about Nancy’s wellbeing, his evidence was that this problem was solved from January 2018 when a WhatsApp group chat was set up to facilitate news about Nancy’s wellbeing among family members.
[49] While there was undoubtedly a risk of undue influence as Nancy was physically dependent on Margaret and James’s live-in care to be able to continue living in her home, I was not shown any evidence of Margaret or James exerting or attempting to exert undue influence over Nancy.
[50] Undue influence is never presumed; it must be proved by those who allege it.21 To invalidate a will based on undue influence the evidence must establish that the true wishes of the will-maker were overborne by improper influence to such an extent that the will-maker felt compelled to sign a will contrary to their wishes. Having regard to the evidence summarised above, I am not satisfied at this stage that the caveators have presented evidence of Margaret exerting improper influence over Nancy. However, that is not for me to determine at this preliminary stage. The issue of whether there was any undue influence will remain alive for consideration when the 2020 Will is formally proved.
Conclusion
[51] The factual issues evidenced by the conflicting affidavit evidence cannot be fully resolved at this stage. However, I am satisfied that there is a live question as to Nancy’s testamentary capacity at the time the 2020 Will was executed, that is not suitable for resolution on a summary basis.
21 Dobbie’s Probate and Administration Practice, above n 5, at [49.5.8] citing Low v Guthrie [1909] AC 278 and Aimers v Taylor (1897) 15 NZLR 530 (SC).
[52] As Davison J said, in order for a caveator to discharge the onus of showing cause, it is not necessary that they prove to the civil standard the existence of grounds that would lead to the challenged will being declared invalid. It is a low threshold which will be overcome if a caveator presents sufficient evidence for the Court to find that there is a real and actual foundation for the challenge to the validity of the will such that a full inquiry should be made.22 I consider Stephen and Alistair have presented sufficient evidence to overcome this low threshold to justify a full inquiry. However, this is not an indication of what the ultimate finding as to testamentary capacity or undue influence should be. It merely reflects that at this preliminary stage, the caveators have raised sufficient grounds to show that a full inquiry should be made, at least in respect of Nancy’s capacity.
Result
[53] I order the executors under Nancy Underwood’s 2020 Will to make an application for probate in solemn form under s 61(d)(ii) of the Administration Act 1969.
[54] Costs are reserved until the determination of the application for probate in solemn form.
McHerron J
Solicitors:
Quin Law, New Plymouth for Applicants
Greg Kelly Trust Law, Wellington for Caveators
22 O’Neill v O’Neill, above n 11, at [11].
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