Estate of Woodford

[2022] NZHC 980

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-31

[2022] NZHC 980

IN THE MATTER

of the estate of COLIN TREVOR WOODFORD (Deceased)

AN APPLICATION BY

PATRICIA MARY FELTON

Plaintiff

Hearing:	7 April 2022
Counsel:	A A P Wooding for Plaintiff
Judgment:	10 May 2022

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 May 2022 at 11.30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
McVeagh Fleming (Albany) for Plaintiff

ESTATE OF WOODFORD v FELTON [2022] NZHC 980 [10 May 2022]

Introduction

[1]    This judgment decides an application for probate in solemn form of a Will made by the late Mr Woodford in 1992.

Background

[2]    Mr Woodford died on or about 25 September 2020 at the age of 91. He was a widower.

1. The statement of claim describes Mr Woodford’s surviving family:

3.1Colin’s daughter, Avril Lovejoy (nee Woodford, formerly Addison) Retired of Lilliput, United Kingdom, aged 65.

3.2Colin’s daughter, Patricia Mary Felton (nee Woodford), Retired, of Auckland, New Zealand, aged 67.

3.3Colin has two granddaughters, who are Pat’s daughters, namely:

(a)Kerrie Patricia Morgan (nee Felton), Freelance Writer of Auckland, New Zealand, aged 35;

(b)Emma Nicole Felton, Human Resources Business Partner of Auckland, New Zealand, aged 33.

3.4Colin has two great-grandchildren, namely:

(a)Billie Rose Lloyd, child of Emma Nicole Felton and Matthew Alexander Llewellyn Lloyd, born 09 July 2020; and

(b)Theodore Arthur Morgan child of Kerrie Patricia Morgan and Christopher Morgan, born 18 March 2020.

[4]    Mr Woodford signed a document on 16 June 2020 which would be his Will if it complied with the requirements of s 11 of the Wills Act 2007 (the Act). But, because one of the witnesses was not present when Mr Woodford signed the document, it does not.

[5]    The 2020 document appoints Ms Felton, one of Mr Woodford’s two children, and Mr Cullen, a solicitor, as his executors. The statement of claim describes how the 2020 document would divide Mr Woodford’s estate:

8.1One part to Colin’s daughter, Patricia Mary Felton;

8.2One part to Colin’s daughter, Avril Lovejoy (formerly Avril Addison);

8.3One part to Colin’s granddaughter, Kerrie Patricia Morgan (nee Felton); and

8.4One part to Colin’s granddaughter, Emma Nicole Felton.

[6]    Mr Woodford made a Will in 1992. It complies with s 11 of the Act. It is the subject of the application. The statement of claim describes how the 1992 Will would divide Mr Woodford’s estate:

11.1One part to Colin’s daughter, Patricia Mary Felton;

11.2One part to Colin’s daughter, Avril Addison; and

11.3One party jointly to Colin’s granddaughters, Kerrie Patricia Felton and Emma Nicole Felton (to be shared equally between Kerrie and Emma).

[7]    The difference between the two testamentary documents is not great. Under the 2020 document Mr Woodford’s daughters and granddaughters each take one- quarter of his estate. Under the 1992 Will Mr Woodford’s daughters each take one- third of his estate and his granddaughters each take one-sixth.

[8]Mr Woodford’s estate is modest, being bank deposits of approximately

$260,000.

The reason for the application

[9]    Ms Felton and Mr Cullen applied for a grant of probate in relation to the 2020 document. They did not at that time know that it did not comply with s 11 of the Act.

[10]   However, what caught the eye of the Registrar considering the application was a reference in the death certificate to Mr Woodford suffering from dementia. The Registrar decided this raised a doubt as to Mr Woodford’s testamentary capacity and she directed that Ms Felton and Mr Cullen provide evidence on the point from a medical practitioner.

[11]   Ms Felton never considered that Mr Woodford, who she saw frequently, lacked testamentary capacity. Ms Felton made inquiry of Ms Mann, a registered nurse, who

was one of the witnesses to the 2020 document.  Ms Mann had the same view as   Ms Felton.

[12]   Ms Felton also approached Dr Naidoo, a medical practitioner who had been attending to Mr Woodford. In a letter to the estate’s solicitor Dr Naidoo gave a different view:

Thank you for your letter/email dated 3 November 2020 with regards to    Mr Colin Woodford’s cognitive ability to sign off on a will document.

At the time of death and since taking over his Care in December 2019 he has always had dense dementia confirmed with clinical testing, CT scan head and functional capacity assessment.

He always needed assisted cares for [toileting], showering and dressing.

At the time of signing in June 2020 he would not have had the cognitive ability to understand the contents of any legal document including a will. He would also have had impaired or negligible insight at the time.

His MOCA score in 2019 was 17/30 which is in the severe range of dementia. He was not further tested as he was incapable of even understanding or responding to the test instructions.

Hoping this information is helpful to you and the parties concerned.

[13]   Ms Felton and Mr Cullen provided Dr Naidoo’s letter to the Registrar together with Ms Felton’s and Ms Mann’s view that Mr Woodford did have testamentary capacity. The Registrar suggested that an application for probate in solemn form should be lodged. Ms Felton and Mr Cullen decided to do so, and in the process became aware of the irregularity in the witnessing of Mr Woodford’s signature.

[14]   Ms Felton decided to bring the application in relation to the 1992 Will because of Dr Naidoo’s opinion (which she does not accept but which she feels she cannot overcome) and because of the irregularity.

Issue

[15]   The issue is whether Ms Felton can prove on the balance of probabilities that Mr Woodford lacked testamentary capacity when he signed the 2020 document.

[16]I put the issue in this way because:

(a)Ms Felton’s application is for the 1992 Will to be admitted to probate.

(b)I have the power under the Act to declare the 2020 document to be  Mr Woodford’s Will notwithstanding the irregularity in the witnessing, if I am satisfied it expresses his testamentary intentions.1 I would exercise that power if Mr Woodford had testamentary capacity when he signed it.

Family consideration

[17]   Mr Woodford’s children and grandchildren have been served with this application. None oppose it. I was advised by Ms Wooding at the hearing that the family does not mind which of the 2020 document or 1992 Will is admitted to probate. They want a solution which is the most cost effective and timely so that this modest estate can be distributed.

Discussion

[18]   The only evidence I have to assist me is Ms Felton’s affidavit of 7 April 2022. I will take Dr Naidoo’s letter as expressing his expert opinion and I will rely on it.

[19]   Ms Felton attaches Mr Woodford’s medical records. For 2020 they record interactions with Mr Woodford which indicate mental functioning appropriate to the interactions. But they also record that he has dementia associated with poor memory.

[20]There is the following entry for 9 June 2020:

Daughter has POA and now requests a signed document from GP to say he is a lucid and able to sign a will based on his mental and cognitive fitness. In a brief assessment using the SIMARD he failed. Notes say he has a mild cognitive impairment and he agrees he forgets things. No other problems of note.

[21]   Ms Felton’s affidavit sets out in detail why she did not consider Mr Woodford lacked testamentary capacity in 2020. She was very close to her father. He lived with her and her family from 1990 to 2016. From 2016 to 2019 Mr Woodford lived

1      Wills Act 2007, s 14.

independently in a unit in a retirement village before moving to a greater level of care in a rest home. Ms Felton saw Mr Woodford frequently; although this was made more difficult in 2020 by the COVID-19 lockdown. I can well understand from Ms Felton’s description of her interactions with Mr Woodford why, despite his forgetfulness, she did not think he lacked testamentary capacity. I accept also that it was understandable that in 2020 as Mr Woodford approached the end of his life he would wish to give his granddaughters somewhat greater recognition in his Will. Put simply, they had been a great part of his life.

[22]   However, Dr  Naidoo’s  opinion, based on clinical tests,  is uncontradicted.    I cannot conclude, on the balance of probabilities, that Mr Woodford had testamentary capacity when he signed the 2020 document. Put in the converse, Ms Felton has proved, on the balance of probabilities, that Mr Woodford lacked testamentary capacity.

Decision

[23]   The application for grant of probate in solemn form for the 1992 Will is granted.

[24]As is usual, the costs of the application are to be met by Mr Woodford’s estate.

Brewer J