Estate of Young - [2018] NZHC 3397

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-1740

[2018] NZHC 3397

IN THE MATTER OF the Administration Act 1969 and the Senior Courts Act (the High Court Rules)

IN THE ESTATE

of JEAN ANTOINETTE YOUNG

BETWEEN

RAEWYN ANN TANNER and PATRICK DONALD YOUNG

Plaintiffs

Hearing: On the papers

Appearances:

S T Clapham for the plaintiffs

Judgment:

18 December 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 18 December 2018 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

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

Counsel:
Sonja Clapham, Barrister, Auckland

Copy to:
Kelly Flavell Law, Howick, Auckland

Re: Estate J A Young v [2018] NZHC 3397 [18 December 2018]

[1]As duty judge, I am presented with an application for a grant of administration.

Background

[2] Jean Antoinette Young died at the age of 95 on 5 September 2016, after over five years’ residence at St Patrick’s Home and Hospital in Auckland’s Epsom.

[3] Mrs Young left two wills, dated in 2006 and 2016 respectively, the latter purportedly revoking the former. Both wills appoint two of her children, Raewyn Anne Tanner and Patrick Ronald Young, as executors and trustees. The 2016 will addressed the intervening death in 2014 of her third child, Rosemary Therese Keane, and added a $20,000 gift to each of her grandchildren.

Application for grant of administration

[4] Raewyn and Patrick bring this proceeding for me to identify the valid will.1 Technically, it is an application for a grant of administration: an “application in solemn form” under HCR 27.6, to resolve some contentious aspect of the will’s validity; alternatively, an “application without notice” under HCR 27.4 ‘in common form’. Probate in solemn form is generally irrevocable; probate in common form is revocable.

[5] Following 14 August 2018 directions by Brewer J, the proceeding has been served on all interested parties, each of whom advises s/he does not intend to take any steps in the proceeding but supports the application. I am invited to determine the application on the papers, which seeks either probate in solemn form of the 2016 will, or probate in common form of the 2006 will.

Discussion

[6] I have limited evidence of the circumstances in which the 2016 will was drafted. Raewyn explains Patrick told her “he had told Mum that she should change her will to ensure that all grandchildren received something”. Patrick only says he instructed a solicitor “to give assistance in the preparation of a new will for my

1 Re Young, Hobbs v Christchurch City [1968] NZLR 1178 at 1179.

mother”, which he “approved”, and had his mother’s signature of it witnessed by two family friends, Roger Giles Barry and Peter John Black. The hearsay nature of Raewyn’s explanation, and Patrick’s evident availability to give evidence, means Raewyn’s statement to that extent is inadmissible as proof of its contents.2 But I do not require to know why the 2016 will was drafted, only…

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: [2018] NZHC 3397
Decision Date: 18 December 2018

CaseChat Overview and Summary

The case of Estate of Young involved an application for a grant of administration to determine the validity of two wills left by the deceased, Jean Antoinette Young. The wills in question were dated 2006 and 2016, with the latter purported to revoke the former. The applicants, Raewyn Anne Tanner and Patrick Donald Young, who were named as executors and trustees in both wills, sought a determination on the validity of the wills. The case was heard on the papers by Jagose J, who was the duty judge in the High Court of New Zealand, Auckland Registry.

The primary legal issue the court had to decide was whether the 2016 will, which was drafted after the death of the deceased's third child and added gifts to the grandchildren, was valid. This required an assessment of the deceased's testamentary capacity at the time of executing the 2016 will. The court had to consider whether the deceased had the mental capacity to understand and approve the contents of the will. This involved examining the evidence presented by the applicants and the deceased's general practitioner, Dr. Roderick David Mulgan, who had specific expertise in legal capacity and its assessment.

The court found that the evidence, including Dr. Mulgan's assessment and the testimonies of the applicants and a grandchild, established that the deceased had an advanced state of dementia and lacked the capacity to understand and approve the 2016 will. The court concluded that the deceased did not have testamentary capacity at the time of executing the 2016 will, rendering it invalid. Consequently, the 2006 will remained valid as it was not revoked by the 2016 will. The court granted probate of the 2006 will in common form, allowing the applicants to proceed with the administration of the estate in accordance with the will.

Orders