Estate of Williams

[2023] NZHC 3209

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2298

[2023] NZHC 3209

IN THE MATTER OF

the Estate of Joan Isabel Williams

BETWEEN

FERN MICHELE MACKENZIE as the

proposed Executrix of a Will of Joan Isabel Williams dated 4 September 2017
Plaintiff

AND

FERN MICHELE MACKENZIE as the

possible Executrix of a Will of Joan Isabel Williams dated 9 February 2021 or 1 June
2007

Defendant

Hearing:	On the papers
Appearances:	A R Gilchrist for plaintiff
Judgment:	14 November 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 14 November 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Boyle Mathieson, Auckland A R Gilchrist, Auckland

Estate of Williams [2023] NZHC 3209 [14 November 2023]

[1]    This is an application for a grant of probate in solemn form. The application is made under r 27.6 of the High Court Rules 2016 and Part 5 of the High Court Rules applies. The plaintiff is Fern Mackenzie, who is a friend of the deceased, Joan Isabel Williams. Before she died, Mrs Williams executed three different wills that are relevant for the purposes of this application, namely on 1 June 2007, 4 September 2017 and 9 February 2021. Mrs Mackenzie is named as the substitute Executrix under each of the three wills, in circumstances where Mr Williams (the principal-named Executor) pre-deceased his wife. This explains why Mrs Mackenzie is named as both plaintiff and defendant, in the absence of any opposing parties.

[2]    The deceased died at Auckland on 13 July 2023. One of the causes noted on the death certificate was dementia.   Accordingly, there is a question of whether   Mrs Williams had capacity to understand and execute the wills. All three wills were formally executed by Mrs Williams before two witnesses. The most recent will that satisfies the capacity requirement is the one that must be granted probate.

[3]    The onus of proof that probate should be granted is on the executor named in the will, on the civil standard of the balance of probabilities.1 The principles relating to the assessment of testamentary capacity are well-established:2

(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.

1      Schuitema v Schuitema [2023] NZHC 1473 at [25], referencing Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [20].

2      At [24], referencing Woodward v Smith [2009] NZCA 215 at [19]; Loosley v Powell, above n 1, at [19]; and Banks v Goodfellow (1870) LR 5 QB 549.

…

(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.

[4]    In a proceeding to which pt 5 of the High Court Rules applies, evidence relevant to the formal proof of a grant of probate would normally be given orally. In this case, the Court has decided that it is appropriate to receive the evidence in affidavit form under r 9.56, because there are no other interested parties that need to be served (no parties that might be adversely affected or wish to oppose). This is evident from an analysis of the limited differences between the wills and the evidence of Mr and Mrs Mackenzie as affected beneficiaries.

[5]Two affidavits have been filed in support of the application.

(a)The first is an affidavit from Mrs Mackenzie producing each of the three wills that were executed by the deceased, and analysing the differences including the named beneficiaries. Mrs Mackenzie also provides helpful context of her own knowledge of the deceased’s mental capacity during the relevant periods.

(b)The second affidavit is from Dr Allfree, a medical practitioner in private general practice in Auckland. Dr Allfree did not meet with the deceased until almost four months after she executed the 2021 will. Therefore his expert medical views are necessarily retrospective in nature, having regard to her condition when he treated her, the medical notes of other practitioners who had seen her historically, and further contextual facts provided to him that inform a retrospective assessment.

Discussion

[6]    For the reasons set out below, I am satisfied that the deceased did not have capacity to sign the will dated 9 February 2021. I accept the evidence sufficiently establishes that the deceased did have capacity to execute the will dated 4 September 2017. It accordingly follows that the 2017 will supersedes the 2007 will.

[7]The material differences between the three wills are set out in the table below:

1 June 2007	4 September 2017	9 February 2021
Principal Executor and beneficiary	David Williams (cl 2)	David Williams (cl 2)	David Williams (cl 2)
Substitute Executrix	Fern Mackenzie (cls 3–4)	Fern Mackenzie (cl 3a)	Fern Mackenzie (cl 3a)
Specific gifts	$100,000 to SPCA, $50,000 to Cancer Society (cl 5)	$100,000 to SPCA, $50,000 to Cancer Society (cl 3a(ii) – sic, it should be 3b(ii))	No specific gifts.
Residue	To Fern Mackenzie for “her personal use and	To Fern and William Mackenzie, “in equal shares as may survive	To Fern and William Mackenzie “jointly”.

benefit absolutely” (cl 6.2) me” (cl 3a(iii) sic, it should be 3b(iii)) (cl 3a(ii) sic, it should be 3b(ii))

[8]    Both the 2007 and 2017 wills make a special bequest of $100,000 to the SPCA, and $50,000 to the Cancer Society, before dealing with the residue. The 2021 will makes no such specific gift and only deals with the residue. As to the residue, the wording differs in each case, but the grant is to Mrs Mackenzie alone or with her husband. Those differences are not material to Mr or Mrs Mackenzie (as between them), who have both confirmed that they are content to leave the capacity assessment to the Court on the merits, without regard to the potential impacts on them as beneficiaries under the three different wills.

[9]    Mrs Williams was 96 years old when she died. Her husband pre-deceased her and they did not have any children. Prior to her death, Mrs Williams was a patient of a general practice in Takapuna called “The Doctors Fred Thomas”. Dr Arthur Young was a doctor at that practice who treated Mrs Williams up to his retirement in early 2021. Dr Allfree then took over the practice and treated Mrs Williams for the last two years or so of her life (from 1 June 2021). Dr Allfree still has access to the deceased’s medical file and practice notes, the relevant detail of which were set out in his affidavit.

[10]   Prior to 2015, the medical notes record only mild cognitive impairment symptoms. Two consultations in 2015 record concerns about the deceased’s memory. These were in the nature of losing her handbag often, forgetting where she had parked the car and place names in Takapuna. In February 2017, the notes for one consultation recorded “Memory is getting worse. Losing her credit cards and bags all the time”. However, notes for a May 2017 consultation recorded that the deceased’s memory was “Not too bad” and in December 2017 the notes for deceased’s driver’s licence examination record “Husband has no concerns re her memory”. Notes from 2018 record a deteriorating cognitive condition, with Dr Young making a note (in contrast to the previous year) “Driving test should be her last, as memory very borderline”. Assessing the medical evidence overall, Dr Allfree believes it likely that the deceased would have had capacity at the time of the 4 September 2017 will, but he cannot be certain. Based on his examination of the deceased in June 2021, he believes it is unlikely she would have had capacity to sign a will in February 2021.

[11]   Mrs Mackenzie seeks to have the 4 September 2017 will admitted to probate, based on the above medical evidence but also supported by her own observations and interactions as a friend.  Mr  and  Mrs  Mackenzie  regularly  played  cards  with  Mrs Williams, which only stopped at the end of 2021. By then, Mrs Williams was saying it was getting too hard to concentrate. Mrs Mackenzie also gives evidence that she flew overseas with Mrs Williams on four separate occasions during 2019, and the deceased totally managed those trips and “did not show any signs of not having her wits about her”.

[12]   Based on the evidence,  I am satisfied on the balance of probabilities that  Mrs Williams had testamentary capacity when she executed her 2017 will, but not her 2021 will.

[13]   Estate cases have their own established case law on costs.3 One of those principles (analogous with trust law) is that costs may be properly payable out of the estate where it is appropriate to obtain the Court’s guidance or determination of an identified issue, for the benefit of the estate. In this case, the application is of that nature, in circumstances where the Registry requested evidence to address the question of capacity, given the wording of the death certificate.

Orders

[14]Accordingly, I make the following orders:

(a)The will dated 4 September 2017 is proved in solemn form to be the last will of Joan Isabel Williams.

(b)Probate of the last will of Joan Isabel Williams is to issue to Fern Michele Mackenzie.

3      See Eastgate v Walker-Prentice [2020] NZHC 1042 at [15]–[24].

(c)Costs on a solicitor and client basis and reasonable disbursements are payable from the estate.

O’Gorman J