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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3209
Decision Date: 14 November 2023

CaseChat Overview and Summary

This case involves an application for a grant of probate in solemn form concerning the estate of Joan Isabel Williams, who died on 13 July 2023. The applicant, Fern Michele Mackenzie, is a friend of the deceased and is named as the substitute Executrix in three wills executed by Mrs Williams on 1 June 2007, 4 September 2017, and 9 February 2021. The court must determine which of the three wills, if any, should be granted probate, given the question of Mrs Williams’ capacity to execute the wills due to her dementia noted on the death certificate.

The central legal issue was whether Mrs Williams had the requisite testamentary capacity when she executed each of the three wills. The court applied well-established principles of testamentary capacity, focusing on whether Mrs Williams understood the nature and effects of the act of making a will, comprehended and appreciated the claims to which she ought to give effect, and was free of any disorder of the mind that would affect her testamentary decision-making. The onus was on Mrs Mackenzie, as the proposed Executrix, to prove on the balance of probabilities that Mrs Williams had capacity to execute the wills.

The court considered the medical evidence and Mrs Mackenzie’s observations. Dr Allfree, the medical practitioner, assessed Mrs Williams’ condition retrospectively and concluded she likely had capacity when she executed the 2017 will but not the 2021 will. Mrs Mackenzie provided evidence of her interactions with Mrs Williams, including overseas trips in 2019 where Mrs Williams managed the trips without signs of cognitive impairment. Based on the evidence, the court found that Mrs Williams had testamentary capacity when she executed the 2017 will but not the 2021 will.

The court granted probate to the 2017 will and ordered that Fern Michele Mackenzie be issued with the probate. The court also ruled that costs of the application would be payable from the estate, as the application was made for the benefit of the estate to resolve the question of Mrs Williams' capacity.

Orders