Estate of Watson

[2014] NZHC 1464

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-003402 [2014] NZHC 1464

IN THE ESTATE OF	NOREEN JOYCE WATSON
AND
IN THE MATTER OF	an application for probate by MARYLEIGH BRONWYN BROTHERS Applicant

On the papers
Judgment:	27 June 2014

JUDGMENT NO. 2 OF GILBERT J

This judgment is delivered by me on 27 June 2014 at 3pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

ESTATE WATSON [2014] NZHC 1464 [26 June 2014]

[1]      Noreen Watson died on 22 July 2013.  She made two wills shortly prior to her death, the first on 17 June 2013, and the second on 18 July 2013.  Because there is a doubt about whether Ms Watson had testamentary capacity at the time she made her July will, the applicant, who is the executrix and trustee under both wills, applies for probate of both wills in the alternative, leaving it for the Court to determine which one is valid.  The application is made in reliance on s 5 of the Administration Act

1969  and  r 27.5  of  the  High  Court  Rules  and  follows  the  approach  set  out  in

Re Young.1

[2]      The only difference between the two wills is that specific bequests of $5,000 to each of Ms Watson’s grandchildren were omitted from the July will.  The balance of her estate under both wills was left to Ms Watson’s two daughters.  The daughters are accordingly the only people who will be affected if probate is granted in relation to the June will. The daughters are of full age and sound mind and have consented in writing to probate being granted in relation to the June will.  Despite such consent, the  question  of  testamentary  capacity  must  be  determined  because  consent  of affected beneficiaries to probate being granted in relation to an earlier will cannot have any bearing on the validity of the later will.   However, the result is that the available evidence on the issue of testamentary capacity will not be contested and the Court must therefore reach its conclusion on the basis of the affidavit evidence provided.

[3]      The evidence comprises affidavits from three lay witnesses and an affidavit from Ms Watson’s general medical practitioner who attended her on 16 July 2013, two days before she made her last will and six days before she died.

[4]      Peter Stratford, who is the partner of one of Ms Watson’s daughters, spoke to

Ms Watson in mid-July 2013.   It  appears from other evidence that this was on

17 July 2013.  Ms Watson told him that she wanted to change the will she had made in June 2013.  She provided Mr Stratford with a copy of this will and asked him to prepare a new will omitting the specific bequests to the grandchildren.  Mr Stratford has considerable experience in drafting and arranging execution of wills, having

been employed as a senior trust manager by the Public Trust between 1989 and 1998.

1      Re Young [1968] NZLR 1178 (HC), at 1179.

[5]      Mr Stratford  prepared  the  new  will  in  accordance  with  Ms  Watson’s instructions and gave it to her.  Mr Stratford was present when the will was signed some time later, on 18 July 2013.  Mr Stratford read the will to Ms Watson and asked her to confirm that it was what she wanted before she signed it in the presence of two other witnesses.   Mr Stratford believes that Ms Watson understood the nature and effect of the document she was signing.  From his perspective, it was not until the evening of 21 July 2013 that Ms Watson’s condition deteriorated to the extent that she was no longer lucid or displaying cognition.

[6]      Janice Stirling knew Ms Watson for approximately 30 years and lived next door to her for five of those years. She saw Ms Watson approximately once a month in the six month period prior to Ms Watson’s death.  Ms Watson told Ms Stirling in July 2013 that she had left a small legacy to two beneficiaries who had not contacted her and she had decided to change her will.  Ms Stirling was later asked to witness the new will.   She was present when Mr Stratford read the will to Ms Watson. Ms Watson was in bed at the time.  She recalls that Mr Stratford asked Ms Watson if the will conformed to her wishes and she confirmed that it did.   Ms Watson then signed the will.  Ms Stirling says that Ms Watson appeared to be comparatively alert. She says that there was nothing about Ms Watson’s behaviour that raised any doubt in her mind that Ms Watson did not understand what she was doing.

[7]      Jennifer Tait also witnessed the July will.  Ms Tait had known Ms Watson for

58 years.   The day before Ms Watson signed her new will, she asked Ms Tait to retrieve from her records a copy of her existing will that had been prepared by her solicitors.  Ms Watson told her that Mr Stratford was going to make some changes. Ms  Watson  explained  that  she  had  reconsidered  bequests  to  her  grandchildren because she had not seen them recently.  Ms Tait says that the following day she was asked to witness the new will.   She said that Ms Watson seemed very quiet and subdued and could barely speak.   She confirms that Mr Stratford read the will to Ms Watson.  It appeared to Ms Tait that Ms Watson was not in a fit state to ask any questions but she seemed to understand the contents of the will.  Ms Tait says that Ms Watson did not appear to be under stress or unhappy.

[8]      Dr Williams was Ms Watson’s general medical practitioner at all relevant times.  He says that Ms Watson had been suffering from cancer for approximately three years prior to her death and from bronchopneumonia for six days prior to her death.  He last attended Ms Watson on 16 July 2013.  In his opinion Ms Watson did not have testamentary capacity at that stage.   In his view, Ms Watson’s mental capacity   would   only   have   deteriorated   after   his   consultation   with   her   on

16 July 2013.   For that reason, he considers that Ms Watson would not have had sufficient understanding to be able to make a valid will on 18 July 2013.

[9]      Ms Tait was present with Ms Watson when Dr Williams attended her on

16 July 2013.  Ms Tait says that Ms Watson seemed “as bright as a button” that day. Ms Tait says that Ms Watson’s ability to talk appeared to have declined by the time Ms Watson signed her will on 18 July 2013 and her general condition continued to decline thereafter.   This confirms the accuracy of Dr Williams’ expectation that Ms Watson’s mental facility would only have deteriorated from the time he last saw her on 16 July 2013.  The prospect that the will was made during a lucid interval can therefore be discounted.

[10]     On the basis of this evidence, I have reached the conclusion, on the balance of probabilities, that Ms Watson did not have testamentary capacity at the time she made her last will, four days before her death.  While I have no reason to doubt the evidence given by Mr Stratford, Ms Stirling and Ms Tait, I consider that Dr Williams was in the best position to make an assessment of testamentary capacity given his medical training and the fact that he had apparently been Ms Watson’s general medical practitioner for some time.

Result

[11]     I make an order granting probate of the will dated 17 June 2013 of Noreen

Joyce Watson (deceased) to Maryleigh Bronwyn Brothers.

M A Gilbert J