Farn v Loosley

[2017] NZHC 317

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-485-006345 [2017] NZHC 317

BETWEEN

EVELYN GWYNNE FARN,

KATHERINE ANNE POWELL, BARBARA ANNE POWELL, JILL ROSEMARY ELEVELD AND MARK ELEVELD

Plaintiffs

AND

JENNIFER LOOSLEY, ROBERT GEORGE LOOSLEY, THOMAS ALEXANDER LOOSLEY AND NICHOLAS EDWARD LOOSLEY Defendants

Hearing:	8-12, 15-16 August 2016
Appearances:	J P Morgan QC and W J Scotter for Plaintiffs A F Grant and H G Holmes for Defendants
Judgment:	2 March 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 2 March 2017  at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

FARN & ORS v LOOSLEY [2017] NZHC 317 [2 March 2017]

Table of Contents

Para No. Introduction      [1] Allison Slater and her family  [5] February to May 2014

Conversations with Tom and Kate  [12]

Rarotonga  [13] Monday 28 April 2014: making an appointment with Mr McDell    [19] Tuesday 29 April 2014: instructions to Mr McDell  [21] Wednesday 30 April: Allison corrects her instructions to Mr

McDell and Evelyn visits  [27] Thursday 1 May 2014: admission to Dove House  [31] Friday 2 May 2014: Allison executes the 2014 will  [33]

Testamentary capacity: relevant principles  [39]

Did Allison have testamentary capacity on either 29 April or

2 May 2014?

The onus of proof  [46]

General observations as to the evidence  [47] No visible changes in the brain or symptoms of brain disease         [52] Was Allison’s cognitive functioning affected by liver

impairment and Oxynorm?  [57] Cognitive functioning affected by delirium?  [72] Mr McDell’s evidence about 29 April 2014  [80] Mr McDell’s evidence about 2 May 2014  [85] Allison’s diary entries  [89] Conclusions on testamentary capacity  [98]

Undue influence  [103] Validation under s 14 Wills Act 2007  [114] Summary and result  [127]

Introduction

[1]      Allison Slater1 was a widow, and childless, when she died on 8 May 2014.  In a will made five days before her death she left her substantial residuary estate to two nephews, Thomas (Tom) Loosley and Nicholas (Nick) Loosley, whose mother, Jennifer Loosley (Jenny), was Allison’s elder sister.  Jenny and her husband, Robert, are the executors of the will and have obtained probate of it.

[2]      Other family members have applied to recall probate on the grounds that Allison  lacked  testamentary capacity or that  the will  was  the product of undue influence.   They are Allison’s younger sister, Barbara Powell, Barbara’s daughter, Katherine Powell (Kate), Allison’s sister-in-law, Rosemary Eleveld and Rosemary’s

son, Mark Eleveld.2

[3]      If Allison’s will were shown to be invalid the will she executed in 2011 would operate.  Under that will the residuary estate would be shared equally among Tom, Nick, Kate, Kate’s brother, Benjamin Powell and Mark Eleveld.

[4]      The following issues arise:

(a)       Did Allison have testamentary capacity when she executed the will on

2 May 2014?

(b)If not, did she have testamentary capacity when she gave her solicitor instructions on 29 April 2014 and sufficient understanding when she executed the will on 2 May 2014 to bring the will within the rule in Parker v Felgate?3

(c)       If so, was the will the product of undue influence?

1      For convenience I refer (as the parties did at trial) to Allison Slater and members of her family by their first names.

2      Allison’s mother, Evelyn Farn, is also a named plaintiff but died before the trial.  Her estate does not wish to advance any claim but the defendants resisted her name being struck out because of the possibility of costs being sought against her estate.

3      Parker v Felgate (1883) 8 PD 171.

(d)If the will is not valid (either because of lack of capacity or undue influence) should documents prepared in the days between 29 April and 2 May 2014 be declared a valid will under s 14 of the Wills Act

2007?

Allison Slater and her family

[5]      Allison was born in New Zealand, the middle of three sisters.   She was an outgoing, vivacious and affectionate woman.  But she also had some less appealing qualities; she was fickle, had a noticeable habit of criticising friends and family behind their backs and she drank far too much.  As a result, Allison’s relationships with her family were not always smooth.  Her mother, Evelyn Farn, described her as “an  extremely difficult  person  –  swinging  from  loving  to  hating  people  for  no apparent reason and she was easily manipulated by those who knew her well”. Many of the witnesses agreed with this description.

[6]      As young women Allison and her sisters had shared a flat in London for a time.  Allison married an Englishman, Paul Slater, and settled in England where she and Paul owned a country hotel.  Jenny and Robert eventually settled in Auckland. Barbara and her husband, Kerry Powell, settled in the Waikato.

[7]      Despite the distance, the family was relatively close.   Family Christmases were held at Evelyn’s home in St Heliers.  Allison and Paul closed their hotel after Christmas each year and came to New Zealand, renting a bach at Ferry Landing in the Coromandel where Barbara and Kerry owned a cottage.  For some years Jenny and Robert rented a bach at Front Beach, which was close to Ferry Landing.  These were, clearly, happy family holidays.

[8]      The  dynamics  between  the  sisters  and  their  respective  families  was  an important aspect of the case.  There was, undeniably, a level of tension in the family relationships.   The sisters’ respective personalities and circumstances meant that there were some unhappy differences between them and this litigation has laid bare the fault lines in these relationships.  On the other hand, I also heard evidence of the real affection and support that these women showed one another at difficult times in their lives.

[9]      It was also clear that Allison was very fond of her niece and nephews.  Jenny and Robert said that when they went through Allison’s possessions after her death nearly all the photographs she had kept were of Tom and Nick, suggesting that Allison favoured Tom and Nick over their cousins.   But other evidence, including emails, diary entries and Allison’s encouragement of Kate’s and Ben’s artistic talents show that her affection was not so limited.

[10]     Allison was widowed in 2010.  Her mother described her as “a somewhat lost soul” after Paul’s death.  After she sold the hotel she did not have a permanent home and travelled a good deal, staying with friends.  She continued to visit New Zealand and stay at Ferry Landing during the summer.  When she was in Auckland she stayed with Jenny and Robert.

[11]     In 2011 Allison was diagnosed with breast cancer.  She stayed in the UK for treatment and did not come to New Zealand that summer.   However, she spent Christmas 2012 in New Zealand. All of the family stayed at Ferry Landing.  Allison rented a house which accommodated her and the  Loosleys.   Later in  2013 she returned to New Zealand permanently, expecting that her remaining time would not be long.   Initially, Allison stayed with Jenny and Robert and then moved into a rented apartment in St Heliers.   She saw Jenny, Evelyn and Tom regularly – they lived close by – and Barbara and Kate, who lived out of Auckland, less often.

February to May 2014

Conversations with Tom and Kate

[12]     During February and March 2014 Allison spoke to both Tom and Kate about her will.  At a lunch on 17 February 2014 she told Kate that she would not need to worry about her student loan because Allison’s estate was to be divided evenly between Kate, Ben, Tom and Nick.  But on 19 March 2014 she told Tom that, having spent a considerable amount of time with Ben and Kate over the preceding months, she found them “incredibly irritating” and planned to leave the bulk of her estate to him and Nick.   Then, on 22 March, when Kate came to Auckland (at Allison’s request) she told Kate again that her estate was going to be “split evenly” among Kate, Ben, Tom and Nick.

Rarotonga

[13]     Allison had arranged a family holiday in Rarotonga, at her expense.   The

Loosley  and  Powell  families, Allison  herself  and Tom’s  fiancée,  Linda,  left  on

18 April 2014 and returned on the evening of 23 April 2014.

[14]     During the holiday in Rarotonga Allison was often very unwell, especially at night.  Kate, who shared a room with her, described Allison sleeping most of the day, being irritable, sometimes rude, consuming alcohol in the evenings to the point of being drunk as well as taking her medication and vomiting during the night.  Kate’s perception of Allison’s irritability with her was supported by other witnesses; at one point Jenny spoke to Allison about the way she was behaving towards Kate and Allison apologised.

[15]     On the other hand Tom and Jenny recalled that on at least one day Allison went with them for a drive and out for lunch and seemed to enjoy herself.  Tom said that Allison rested during the day but he often visited her and found her interested and communicative.

[16]     There was an odd incident in Rarotonga that a number of witnesses recalled; Barbara attached a flower to Allison’s top and Kerry complimented her on it. Allison responded that “Tom just gave it to me”.   But Tom had not given it to her and, indeed, was not even nearby at the time.

[17]     By the end of the holiday Allison was very unwell.  She had to be helped on and off the plane in a wheelchair.  She was too unwell to return to her apartment so she stayed in Jenny’s and Robert’s Parkside Street home, intending to move back over the weekend.   Jenny and Robert were away from Friday 25 April to Sunday

27 April and Barbara had offered to stay with Allison but Jenny did not think it necessary, presumably on the basis that Allison intended to move back to her own apartment. As it turned out, however, Allison was not well enough to move back and remained with Jenny and Robert.

[18]     Over the weekend Allison’s friend, Martin Howarth, visited her.  She seemed to him to be functioning well mentally and he did not notice any change in her behaviour.

Monday 28 April 2014: making an appointment with Mr McDell

[19]     There is very little evidence about Allison’s condition on this day.   Jenny

recalled that Allison was quite tired and not in a state to have lengthy conversations.

[20]     Allison telephoned an Auckland lawyer, Terence McDell and arranged for him to see her at Parkside Street the next day, 29 April.  Mr McDell was Evelyn’s lawyer and in 2011 he had prepared Allison’s previous will.  Allison made a diary note  which,  although  undated,  was  plainly  written  in  anticipation  of  seeing Mr McDell.   There are some notable features about this entry, which I discuss in more detail later.

Tuesday, 29 April 2014: instructions to Mr McDell

[21]     Although Jenny and Robert were both at home on 29 April 2014 they did not give  evidence  about Allison’s  condition.   The  most  useful  evidence  came from Mr McDell, who arrived about 9.30 am – 10 am and stayed for about half-an-hour. He did not recognise Allison from their previous dealings in 2011 but he described her as “chirpy” despite her illness.

[22]   Allison received Mr McDell propped up in bed and wearing a turban (presumably because of the effect of chemotherapy).  They had a general discussion before moving onto the business at hand.  Mr McDell asked Allison about the size of her estate and she indicated that it was in the vicinity of $2m, which he noted.  They discussed changes to the executors of the will; the executors named under the 2011 will were based in England and Allison wanted to appoint Jenny and Robert.  Then she told Mr McDell that she wanted to change the bequests from the ones she had made in the 2011 will and gave him a photocopy of the second page of her 2011 will on which she had written:

All monies given to be passed on to ONLY BLOOD relatives

Kate Powell $50,000

Ben Powell $50,000

Jenny Loosley Fiat car and $50,000

Barbara Loosley $75,000

Jill Eleveld $100,000

Receptions/celebrations ?

Remainder of Estate will be divided between Thomas Loosley and Nick

Loosley

To be decided: TV, sofas, furniture, bed

[23]     As I have noted, these instructions differed quite significantly from Allison’s

2011 will in which her residuary estate was to go equally to Tom, Nick, Kate, Ben and Mark.   However, Mr McDell noted that none of the proposed beneficiaries would have been entitled to claim under the Family Protection Act 1955 and was therefore not concerned about the changes.

[24]     Once they had finished discussing the changes to Allison’s will Mr McDell raised the question of an enduring power of attorney and it was agreed that Jenny would be appointed her attorney for personal care and welfare and Jenny and Robert both as attorneys for her property.   Jenny and Robert were asked into the room to confirm that they would be prepared to act as executors and attorneys.

[25]     Mr McDell left Parkside without making arrangements for either a further meeting or the execution of a new will.  Although he did not recall describing the document that he was to prepare as a draft, in cross-examination he agreed that a fair description of the situation was that Allison wanted to see what he prepared and have a think about it.

[26]     After  Mr  McDell  had  left,  Robert  came  up  the  stairs  and  saw  Allison

“looking at me as if she wanted to engage me in conversation”. Then:

I walked  into the  bedroom and  … Allison  said “have  I made  the  right decision?”  I replied “… well you have had a long time to think about it, Al.” She then punched her fist into the bed and said with feeling “Yes I have.”

Wednesday, 30 April: Allison corrects her instructions to Mr McDell and Evelyn visits

[27]     The next day Allison emailed Mr McDell:

Dear Terry

It was good to meet you again yesterday.

Before you do the draught [sic] will, the name on it is Barbara Powell not Barbara Loosley to receive $75,000 from the estate.   I’m going to Dove [hospice]  tomorrow  for  about  a  week,  so  please  deliver  documents  to Parkside Street.

[28]     Mr McDell posted a letter to Parkside Street that same day which contained the new will he had prepared on Allison’s instructions together with an enduring power of attorney in relation to property and one in relation to personal care and welfare.  He concluded:

Please let us know whether the enclosures are in  accordance  with  your wishes.  If so the writer can call past to have the documents completed.

[29]     That day Evelyn visited Allison at Parkside.  She originally thought this visit was on Sunday, 27 April, but Evelyn relied on Jenny or Robert for transport and they were in Wellington until the night of 27 April.  Further, Jenny had made an entry in her diary for 30 April “Mum – coffee here with Ali”.  I am therefore satisfied that Evelyn visited on 30 April.

[30]     Evelyn gave her evidence before me in 2015.  There was no challenge to her account of that visit.  She described Allison as propped up in bed, obviously very weak but able to converse.  During the conversation Allison suddenly announced that she was concerned about her will because she felt Ben and Kate would simply “fritter” her money away.  Evelyn responded briefly, disagreeing, and no more was said about the topic.

Thursday 1 May 2014: admission to Dove House

[31]     Allison’s oncologist had arranged for her to have a week of respite care at a local hospice, Dove House in Glendowie.  Robert and Jenny took Allison. They both said that she was extremely uncomfortable but did not detect any mental confusion.

Jenny described her impression then that Allison might not, in fact, return home from Dove House.   Likewise, Robert said that on 1 May it had become obvious to him that Allison was becoming more physically frail.

[32]     When Robert visited Allison later in the day she asked him to call Mr McDell and  arrange  for  him  to  come  to  Dove  House.    Robert  was  vague  about  this instruction and there was no evidence as to exactly what Allison said.  In particular, I do not know whether Allison wanted to talk to Mr McDell further or wanted to see the draft will or whether she wanted to execute the will in whatever form Mr McDell had prepared.

Friday 2 May 2014: Allison executes the 2014 will

[33]     Robert telephoned Mr McDell on the morning of 2 May 2014, told him that Allison had “taken a turn for the worse” and asked him to bring the will to Dove House.  Mr McDell was at his office in Highbrook when Robert called.  He printed further original copies of the will and the powers of attorney and drove to the hospital.

[34]     Mr McDell arrived at Dove House some time before midday.  He met with Allison alone in her room and spoke to her about the will.   He then arranged a witness and while they were waiting he explained the power of attorney documents. The witness was Ms Stadler-Hanekom.  Her best recollection was that she came at about 11 am and witnessed all the documents.

[35]     I did not hear from any of the nursing staff caring for Allison on 2 May 2014 but it is evident from their notes of that morning that Allison was very unwell that day. The nurses’ notes for the early hours of 2 May recorded:

0245:had severe back pain … and took 5mg Oxynorm.   She was also nauseated and … vomited.  Displayed a temporary bad temper but apologised afterwards.

0430:    sleeping now has had an unsettled nocte (night).

0520:Remains sleepy, position altered. Checked for pain level and left her to go back to sleep.

[36]     The  next  entry  was  timed  12:15  pm  but  clearly  reflected  the  nurses’ observations over the course of the morning.   In particular, I am satisfied that it encompassed the period around 11 am when Allison executed her will:

1215: Allison is poorly:

Lethargy +++; poor night’s sleep, nausea, uncomfortable particularly round

abdomen which is full and tense ascites site still leaking.  Drainage.

Dr   Wardrope   will   assess   and   chart   medications   today.     Allison   is overwhelmed re health events and cannot process too many questions.

Julia and I spoke to sister Jenny this morning to discuss our findings.  Jenny has power of attorney.

Jenny would like Allison to stay in Dove wing for palliative care. Comfort measures only.

Jenny would like to be informed of any change in condition.

[37]     The reference to Allison being overwhelmed with health events and unable to process too many questions and the fact that her condition was such that Jenny made the decision that there would be “comfort measures only” all speak to how unwell Allison was that morning.

[38]     Dr Wardrope visited on the afternoon of 2 May 2014.   In anticipation of Allison’s admission, Dove House had sent Dr Wardrope a pre-admission form that sought, among other things, advice as to Allison’s mental capacity by ticking a box “yes” or “no”.  Dr Wardrope ticked “yes” and signed the form on 30 April 2014.  But he had not actually seen Allison for some time because she was under the care of an oncologist and when he visited Allison on 2 May 2014 he added a note, drawing an arrow from the statement confirming mental capacity to the foot of the document where he wrote and signed the following:

This  was  based  on  information  given.   But  on  admission  certainly was deteriorating quickly.

Testamentary capacity: relevant principles

[39]     The freedom of a testator or testatrix to dispose of his or her estate is an important principle that was described in Banks v Goodfellow in the following way:4

The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.

[40]     The principles relating to testamentary capacity are well established.  They were restated by the Court of Appeal in Woodward v Smith:5

The celebrated judgment of the Court of Cockburn CJ and the Queens Bench (Cockburn CJ, Blackburn, Mellor and Hannen JJ) in Banks v Goodfellow (1870) LR 5 QB 549 remains the leading authority on testamentary capacity. We paraphrase and number the propositions stated in that case at 565-8:

(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.

(3) Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity.  But

4      Banks v Goodfellow (1870) LR 5 QB 549 at 564.

5      Woodward v Smith [2009] NZCA 215 at [19].

(i)  though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains

(ii) it is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.

(4) It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form.  It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.

(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.

[41]     The onus and standard of proof in probate proceedings were summarised in

Bishop v O’Dea:6

In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue.  In the absence of such evidence,  the  maker  of  a  will  apparently  rational  on  its  face,  will  be presumed to have testamentary capacity: Re White [1951] NZLR 393 (CA) and Peters v Morris 19/5/87 CA99/85.

6      Bishop v O’Dea (1999) 18 FRNZ 492 (CA) at [3]–[5].

If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did testamentary capacity rests on those who seek probate of the will: Public Trustee v Bick [1973] 1

NZLR 301 and Peters v Morris (supra).

That onus must be discharged on the balance of probabilities: Watkins v Public Trustee [1960] NZLR 326 (CA). Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.

[42]     In Nijsse v Squires the Court of Appeal also observed, on the question of onus, that:7

[T]he matter cannot be left finely balanced … The Judge must be able to find that  the  reasonable  inference  relating  to  testamentary  capacity  can  and should be drawn, otherwise the attempt to propound the will must fail.

[43]     Ordinarily, the will-maker must have testamentary capacity when he or she executes the will.  This is, however, subject to the rule in Parker v Felgate that if the instructions were given when the will maker had capacity the will is valid even though executed when he or she lacked capacity.8   Although subject to criticism and efforts to overturn this decision in the UK, it remains the law there.9   In New Zealand

the position is the same by virtue of the decisions of the Privy Council in Pereira v

Pereira10 and Battan Singh v Amirchand.11

[44]     In Perrins v Holland the English Court of Appeal summarised the effect of

Parker v Felgate:12

… the decision in Parker v Felgate 8 PD 171 does not displace the requirement for full testamentary capacity; it merely displaces the ordinary requirement that the deceased should have had such capacity at the time he executed the will.

Unless there is reason to question it, proof of testamentary capacity and the execution of the will are sufficient to establish knowledge and approval of its contents.  It can normally be accepted that a person of sound mind is capable of disposing of his property and intends to do so in the manner provided for by the will.   In such cases it is irrelevant to enquire whether he lacked

7      Nijsse v Squires CA53/04, 15 December 2004 at [12].

8      Parker v Felgate, above n 3.

9      Perrins v Holland [2010] EWCA Civ 840, [2011] Ch 270.

10     Pereira v Pereira [1901] AC 354.

11     Battan Singh v Amirchand [1948] AC 161 at 168. See also Tansley v The Trustees Executors & Agency Co of New Zealand HC Wellington CP698/92, 17 March 1994; Estate of Prasad [2012] NZHC 1489; Steel v Moresby MC M256/86, 15 June 1988.

12     At [54]–[55].

capacity at the time when he gave the instructions, whether they continued to reflect his intentions or whether he realised that the document gave effect to them.  It is enough that he was capable of making the decision at the time he executed the document.  Where the testator loses some of his faculties between giving instructions and executing the will, however, the position is different.  One must then ask:

(i)        whether at the time he gave the instructions he had the ability to understand  and  give  proper  consideration  to  the  various  matters which are called for, that is, whether he had testamentary capacity;

(ii)      whether the document gives effect to his instructions;

(iii)      whether those instructions continued to reflect his intentions; and

(iv)      whether at the time he executed the will he knew what he was doing and thus had sufficient mental capacity to carry out the juristic act which that involves.

If all those questions can be answered in the affirmative, one can be satisfied that the will accurately reflects the deceased’s intentions formed at a time when he was capable of making fully informed decisions.

[45]     Although no authority was cited on the point, the position regarding the onus of proof must be different where testamentary capacity is being considered under the rule in Parker v Felgate.  Because that rule only arises for consideration where the Court is not satisfied that the will maker had testamentary capacity at the time of execution, there is no place for a presumption of testamentary capacity.   For the purposes of the rule in Parker v Felgate the burden of proving the requirements described in Perrins v Holland rests with those propounding the will.

Did Allison have testamentary capacity on either 29 April or 2 May 2014?

The onus of proof

[46]     Mr Grant, for the defendants (Jenny and Robert as executors and Nick and Tom as interested parties), submitted that the plaintiffs have the burden of proof and must produce effective evidence of a lack of testamentary capacity.  That is not right on  the principles  just noted.   The will is,  on its face,  a rational  will and  duly executed.  So the starting point is that Allison is presumed to have had testamentary capacity.  But if, on the evidence, there is doubt as to that, it is for the defendants, who are propounding the will, to show that she did have testamentary capacity.

General observations as to the evidence

[47]     The way the case was presented means that Allison’s testamentary capacity on 2 May 2014, when she executed her will, must be determined before her testamentary capacity on 29 April 2014, when she gave instructions for the will; the rule in Parker v Felgate only becomes relevant if Allison lacked capacity at the date of execution.  However, much of the evidence I heard from the medical experts was relevant to both dates and any attempt to separate it makes for a clumsy analysis.  I therefore consider  all this evidence together before turning to  make findings in relation to each of the relevant dates.

[48]     I did not hear from any of the doctors who treated Allison prior to her death. Nor did I hear from any of the nursing staff at Dove House who assessed her prior to or on admission though I had the benefit of the nurses’ notes made while Allison was at Dove House.13

[49]     The most significant evidence regarding capacity came from the two expert witnesses who gave retrospective assessments based on the factual and documentary evidence available.  The plaintiffs’ witness, Dr Gary Chi Wah Cheung, is an old-age psychiatrist with extensive clinical experience in assessing mental capacity in older people and those dying of terminal illnesses.  Dr Cheung considered that there was insufficient evidence to reach a conclusion as to whether Allison had testamentary capacity on either of the relevant dates and identified factors that he considered raised doubt that she did.  These were the likelihood that her cognitive functioning was affected by the painkiller she was taking (Oxynorm, an oral formulation of morphine) and the possibility of her suffering from delirium at the relevant times.

[50]     The defendants’ expert witness, Dr Mark Simpson, is a neurologist whose area of expertise is disorders of the brain and peripheral nervous system.   He has extensive experience in communicating with those suffering from progressive terminal  diseases,  such  as  motor  neurone  disease,  who  can  become  cognitively

impaired as a result of their disease.   However, he had no previous experience in

13     I  have  not  accorded weight to  the  “pre-admission assessment form” dated  29 April 2014.

Although it recorded Allison’s mental condition as “alert and oriented” I do not know what
questions were asked to reach this conclusion.

assessing the testamentary capacity either of a living person or, retrospectively, of a deceased person.

[51]     Dr Simpson identified the following facts that he considered showed that Allison had testamentary capacity both when she executed her will and when she gave instructions for it.  First, despite the spread of cancer to a number of sites in Allison’s  body  there  was  no  evidence  that  her  brain  itself  had  been  affected. Secondly, whilst metabolic disturbance as a result of kidney or liver failure can impair brain function, and Allison’s CT scan on 28 April 2014 showed a level of impairment to her liver, the degree of dysfunction was mild and insufficient to alter her  mental  function.    Thirdly,  whilst  Oxynorm  can  affect  mental  faculties,  the amount that Allison told Dove House she was taking (5 mg up to twice a day) was a comparatively small dose that would not be sufficient to impair her mental faculties. Fourthly, Allison had been able to make the arrangements to see Mr McDell, engage in complex conversation with him and correct an error in her instructions.   She understood the size and nature of her estate and who the potential beneficiaries of the estate were and was able to give Mr McDell instructions.   She gave affirmative responses  to  Mr  McDell’s  enquiry  whether  she  was  happy  with  the  will.    In Dr Simpson’s opinion this evidence showed that Allison’s mental functioning was adequate for the purposes of testamentary capacity.  I consider each of these aspects.

No visible changes in the brain or symptoms of brain disease

[52]     Dr Simpson noted that an MRI scan performed in November 2013 did not show any disease of the dura or lining of the brain and no disease of the brain tissue itself.   He considered that the burden of the disease was confined to the breasts, bones  and  abdomen.    He  also  pointed  out  that Allison  had  not  exhibited  any neurological symptoms such as seizures, language difficulties or difficulties with balance that would suggest any disease of the brain.

[53]     Dr Cheung, however, considered that brain metastases were quite possible. He  referred  to  a  2014  study  showing  that,  at  autopsy,  brain  metastases  were identified in 16-30 per cent of patients with breast cancer.  Dr Simpson criticised his reliance on this study on the basis that  it involved the older technology of CT

imaging and none of the patients in the study had had prior imaging of the brain by MRI scan which was a much more sensitive imaging process than the CT imaging available  in  1983.    But  in  cross-examination  Dr  Cheung  pointed  out  that  later research on brain metastases in breast cancer patients (a 2015 article in the Journal of Clinical Oncology that summarised studies in the 2000s) showed a 20 per cent incidence of brain metastases in breast cancer patients who were asymptomatic.

[54]     Moreover, Dr Cheung identified one piece of evidence which he regarded as possibly symptomatic of organic disease of the frontal lobes of the brain.  This was an entry in the diary note that Allison had made about seeing Mr McDell.  She had written  out  Mr  McDell’s  telephone  number  twice.    Dr  Cheung  identified  this apparent error as an example of perseveration, which is essentially repetition and is significant in terms of cognitive functioning because it can indicate an inability to move on from a particular thought.

[55]     Mr  Grant  suggested  that  the  repetition  of  the  telephone  number  was explicable by it being rewritten for clarity and even suggested that it may have been written by someone else.  Neither seems likely to me.  I note that in another diary Allison  made  notes,  clearly  in  anticipation  of  her  stay  at  Dove  House,  which included the words “Talk Talk”, suggestive of a similar error.

[56]     I accept Dr Cheung’s view that the November 2013 MRI scan does not provide any basis for concluding that Allison’s brain was not affected by her disease. There is insufficient evidence to find that she either was or was not suffering from a disease of the brain.

Was Allison’s cognitive functioning affected by liver impairment and Oxynorm?

[57]     Allison  had  been  permitted  by  her  oncologist  to  “self-medicate”  i.e.  to determine how much of the painkiller prescribed to her she needed each day.  She entered  Dove House on  that basis.   Mr Grant  invited me to find that this was indicative of her mental capacity in the week preceding the execution of the will.  I decline to do so.   Allison had not been examined by a doctor from the time she started taking the painkiller.  For the reasons I come to next, even if Allison had been

functioning normally when the drug was first prescribed I cannot assume that the same decision would have been made had she been examined during the week of

28 April 2014.

[58]   The recognised side-effects of Oxynorm include confusion, nausea and vomiting, particularly in the initial few weeks.  Drs Cheung and Simpson agreed that for a patient with liver damage the level of Oxynorm in the body can be higher than expected as a result of the liver’s inability to metabolise the drug.   Dr Simpson, however, did not consider that the Oxynorm would have affected Allison’s mental function on either of the relevant dates, partly because of the low dosage he understood her to be taking and partly because those taking Oxynorm tend to build up a tolerance to it.

[59]      Dr Simpson’s analysis proceeded on the assumption that Allison was taking only 10 mg of Oxynorm per day.  This assumption was based on the Dove House nursing notes that recorded Allison’s statement on admission that she was taking no more than two tablets a day (i.e. 10 mg).  But I find that Allison was taking more Oxynorm than Dr Simpson had assumed.

[60]     The first reference to Oxynorm was a prescription written on 9 April 2014. Pain relief is not mentioned in any previous report.  I find, therefore, that Allison had been taking Oxynorm for just under three weeks by the time she gave instructions to Mr McDell and just over three weeks by the time she was admitted to Dove House.

[61]     The prescription was for 5 mg four-hourly or as needed, to a maximum of 40 mg a day.  That dosage is consistent with the dosage recommended by the Oxynorm data sheet:

The usual starting dose for opioid-naïve patients or patients presenting with severe pain uncontrolled by weaker opioids is 5 mg, 4-6 hourly.

[62]     A printed patient history report showed 50 5 mg tablets dispensed on 9 April

2014 and a further 50 on 16 April 2014, the dosage stated to be for one capsule up to four-hourly per day.  Had Allison been taking no more than two tablets a day it is difficult to see why she would have needed a second prescription of 50 tablets filled

only a week after the first, even allowing for any concern about running out in

Raratonga.

[63]     Finally, in her first 24 hours at Dove House Allison took 5 Oxynorm tablets

(i.e. total of 25 mg).   The nursing notes show that she arrived at about 14:30 on

1 May 2014 and was given an Oxynorm tablet at 20:30 that night.   She then had tablets at 02:45, 08:10, 13:50 and 18:50 on 2 May.   Given the level of the prescriptions previously filled and the dosage she required during the first 24 hours at Dove House I think it more likely than not that prior to coming to Dove House Allison was taking more than 10 mg a day.

[64]     The amount of Oxynorm that Allison was taking is significant, not only because of the usual recognised side effect of confusion associated with the first few weeks of taking Oxynorm, but also because Allison had a level of liver dysfunction which could have resulted in a build up of Oxynorm in her system. The use of Oxynorm by those with mild to moderate hepatic (liver) impairment is the subject of specific caution in the data sheet:

Adults with mild to moderate renal impairment and mild hepatic impairment

The  plasma  concentration  in  this  patient  population  may  be  increased. Therefore, dose initiation should follow a conservative approach …

Special risk groups

Use in renal and hepatic impairment

In renal and hepatic impairment the administration of OXYNORM capsules or liquid does not result in significant levels of active metabolites.  However, the plasma concentration of Oxydone [active ingredient of Oxynorm] in this patient population may be increased compared with patients having normal renal or hepatic function.   Therefore, initiation of dosing in patients with renal impairment or hepatic impairment should be reduced to a third in numbers to a half in numbers of the usual dose with cautious titration.

(emphasis added)

[65]     There  are references  to  liver damage in Allison’s  medical  reports  in  the months preceding her death, including a CT scan on 28 April 2014 that reported “appearance of the liver is suggestive of cirrhosis, possibly therapy related”.

[66]     There are references to liver disease in Allison’s medical reports going back to the beginning of 2014 and I accept Dr Cheung’s view that Allison was, more likely than not, suffering from moderate to serious liver impairment.   But because the caution in the datasheet is triggered by “mild hepatic impairment” it is unnecessary to resolve the difference between Dr Cheung and Dr Simpson as to the exact nature and extent of the impairment of Allison’s liver.  I am satisfied that there was, at least, “mild” hepatic impairment which resulted in the risk of a higher level of Oxynorm in Allison’s liver during the relevant period.  There is no evidence as to whether the doctor who prescribed the Oxynorm was aware of the liver damage.

[67]     I note, too, that women are identified in the data sheet as a special risk group:

Female subjects have, on average, plasma oxycodone concentration up to

25% higher than males on a body weight adjusted basis …

[68]     The data sheet also states that alcohol should be avoided while a patient is being treated with Oxynorm.  Allison’s oncologist may not have known that she was consuming  alcohol  though;  in  a  letter  from  Dr  Broom  to  Dr  Wardrope  dated

21 January 2014 Dr Broom recorded that Allison “does not currently drink alcohol”. I cannot tell whether this was true at the time but it is certainly clear that Allison was drinking after that date and during the period after the Oxynorm had been prescribed.

[69]     As I have noted, Allison was known within the family as a heavy drinker and was drinking as late as the holiday in Rarotonga, just ten days after being prescribed Oxynorm.  Although there was no direct evidence as to the medication Allison was taking when she was in Rarotonga, the timing of the prescription, the renewal of the prescription just before she left for the holiday and her nausea and vomiting while she was away provide an adequate evidential basis for concluding it was Oxynorm.

[70]     There is no evidence of nausea and vomiting in the days between Rarotonga and Dove House but Allison was alone for much of that time and according to Jenny, very private about her illness, so it is impossible to know how she felt during that time.

[71]     I find that, given Allison’s (at least) mild hepatic impairment and the fact that she had been drinking as late as her time in Rarotonga, she was taking more than the recommended dose for a person in her condition.  Although Dr Simpson considered that   Allison’s   cognitive   functioning   was   unaffected   by   Oxynorm,   I   prefer Dr Cheung’s view that Allison’s impaired liver function and history of heavy alcohol consumption meant that Allison’s body would have had increasing difficulty metabolising the drug.  That would have resulted in a toxic accumulation of it in her system, with resultant cognitive difficulties affecting frontal lobe function and executive function, including forgetfulness, memory issues and disorientation. Significantly, Dr Cheung considered that these difficulties could exist at a level that was quite subtle, not necessarily obvious to others, even nursing staff.

Cognitive functioning affected by delirium: assessing capacity

[72]     Dr  Cheung  also  identified  the  possibility  that  the  combined  effect  of metabolic disturbance and Oxynorm, together with pain and a brain made vulnerable from long term alcohol use, resulted in delirium, which is common in patients with advanced cancer but under-reported and under-diagnosed in the medical setting.

[73]     The nature and incidence of delirium was discussed in a 2014 report by the International Psychogeriatric Association’s Task Force on Testamentary Capacity and Undue Influence entitled “Deathbed wills: assessing testamentary capacity in the dying patient”, to which Dr Cheung referred.14    The Task Force described delirium as:15

… a disturbance of consciousness and a change in cognition that develops over a short period of time as a consequence of a general medical condition, substance intoxication or withdrawal, use of medication or toxin exposure, not better accounted for by pre-existing or evolving dementia.  It is highly prevalent amongst dying patients, not only as a pre-terminal event but also in the last weeks of life, with prevalence rates from 25% to 85% and up to 90% in the hours to days preceding death.

[74]     Given   the factors I have already discussed, I accept that there must have been a real possibility that Allison was suffering from delirium.   However, as the

14     C Peisah and others “Deathbed wills: assessing testamentary capacity in the dying patient”

(2014) 26 International Psychogeriatrics 209.

15     At 210.

Task Force report went on to observe, delirium does not necessarily preclude capacity:16

So while this setting predisposes to compromised cognition, the ultimate question will not be whether or not the person has delirium, but rather, despite this delirium,  can they make  the particular will in question; the complexity of the task being extremely important to this question …

The major issue with delirium is that it may be missed by lawyers and lay witnesses who usually rely on the assessments and opinions of healthcare professionals.   Yet, delirium is frequently missed by these very healthcare professionals, both in hospital and in nursing home environments where less than 20 per cent of patients with delirium are detected.

[75]     The Task Force report made recommendations regarding the assessment of testamentary capacity, whether contemporaneous or retrospective:17

[W]e recommend [a] structured methodology of assessing the testator’s mental  status  and  ability  to  meet  the  tasks  for  specific  aspects  of testamentary capacity,  guided  by the  Banks v  Goodfellow criteria.   This methodology involves an assessment of (i) the testator’s understanding of the  nature  and  extent  of  their  property;  (ii)  awareness  of  potential beneficiaries and the testator’s ability to evaluate and discriminate between the claims of such beneficiaries; (iii) the testator’s rationale for deviating from  any  pattern  of  disposition  identified  in  previous  wills  or  wishes regarding testamentary intent; (iv) the presence of any disorder of mind such as delusions or hallucinations which might be influencing the testator’s disposition and (v) ensuring the will-making is a free and voluntary act.

(emphasis added)

[76]   Dr Simpson accepted that these recommendations represent the correct methodology for assessing testamentary capacity in a dying person.

[77]     The  Task  Force  also  commented  specifically  on  the  reliability  of  fact witnesses, including medical staff, in a retrospective assessment of testamentary capacity, pointing out that in a palliative or intensive care setting the assessment tools used will not be apt for identifying subtle perturbations of mental state that

might be incompatible with testamentary capacity:18

… Much of the retrospective assessment of testamentary capacity in this setting relies on the accuracy of staff’s descriptions of mental state and the lawyer’s documentation of the task-specific aspects of capacity at the time

16     At 211.

17     At 213.

18     At 213 – 214.

instructions were taken.  In interpreting this evidence, one must be mindful that there is a different agenda for detecting delirium in the palliative or intensive care setting, where the focus is on noting changes in clinical state using tools which grossly describe consciousness and mental state such as Glasgow Coma Scale, whereas for the purposes of assessing testamentary capacity, we are interested in identifying subtle perturbations of mental state which might be incompatible with testamentary capacity, which is often reliant on complex decision making and higher levels of cognition.

Thus, descriptions of patients as “lucid” in progress notes may say very little about the presence or absence of any disorder of mind relevant to testamentary capacity, other than the absence of any gross abnormality.  We have  previously discussed the legal concept  of  “lucid intervals” as they pertain to delirium, where, theoretically, a person may be capable of signing a will during such an interval if their cognition has substantially improved and there is a clear rationale and consistency over time (hours, days, weeks, or months) in the person’s expressed wishes … However, “lucidity” is a relative concept relating to severity of the delirium at the time the will was made, and the issue is whether the testator, with their particular cognitive function and their particular situational complexity, can or could make this particular will, at the relevant time.

Finally, reports of “alert and orientated” do not preclude delirium.   First, such entries are often based on the person’s general demeanour or awareness that they are in hospital, rather than any specific testing or screening.  Such interactions so documented between staff and patients may be brief and superficial and insufficient to detect thought disorder, problems of comprehension, and attention indicative of delirium … Second, while disorientation may be commonly a feature of delirium, it is not invariably so

… Indeed, disorientation is often used to screen for cognitive impairment in clinical settings but may be unhelpful due to both the fluctuating nature of

delirium and its lack of sensitivity for the syndrome … Disorientation has

been noted in only two-thirds of delirious patients in palliative care settings,

compared to inattention, which is almost universal … The assessment of attention is fundamental for diagnosing delirium, yet doctors and nurses have difficulty  correctly  identifying  inattention  …  including in  palliative  care settings …

In view of the high likelihood of the presence of a disorder of mind such as delirium in this setting, the “mother-lode” of evidence pointing to testamentary capacity is the testator’s contemporaneous understanding and reasoning articulated in their own words, ideally in response to open-ended questions about the task specific aspects of capacity.  Affirmative responses or accession to the closed questioning of “Is this what you want?” “Do you understand?” do not necessarily reflect understanding.  This is particularly important with a complex estate or distribution or when a testator deviates from previous wills or expressed wishes, when a higher threshold might be used for assessing capacity than, say for an elderly man leaving his one asset, his house, to his wife of 50 years, with whom there has been no conflict …

Alternatively, the disposition of a more complex and substantial estate that deviates from previously expressed wishes requires a higher level of sophistication  of  understanding  with  consistent  rationale.    If  there  is  a change in the pattern of disposition, then some rationale for this change

should be provided.  The vital question to ask the testator is “why?”  It is not sufficient to simply document that the testator was emphatic or “clear” in their wishes to disinherit or favour a beneficiary – often assumed to be synonymous with capacity despite the fact that clarity or emphasis may reflect cognitive impairment or psychotic thinking.

(emphasis added)

[78]     In his evidence on the issue of assessment Dr Cheung described a process that reflected the Task Force recommendations.    He considered that in a straightforward case half-an-hour would be sufficient to assess someone for testamentary capacity but a complex case, if a person was very ill, might take up to an hour; that length of time was needed to ensure that the person understood the nature of the will and, if a significant change were being made, to be able to explain the reasoning behind that change.   He described the process of assessment as involving open-ended questions such as “This is what you have decided, now what’s the reason behind that?” so that the person undertaking the assessment could understand the will maker’s rationale for the decision.  He identified four particular aspects that he focused on; understanding what a will is, whether the will maker can explain the reason for his or her choices, whether he or she can appreciate the choices and whether he or she can communicate the choice.

[79]     Given Allison’s serious illness, the fact that she was, more likely than not, taking medication at a higher than recommended dose and the relative complexity of her estate, an effective assessment of her testamentary capacity would have required a careful enquiry as to the rationale behind the quite significant changes from her previous will. Against that background, I turn to consider Mr McDell’s evidence.

Mr McDell’s evidence about 29 April 2014

[80]     Mr McDell, who is now retired, was a very experienced solicitor with many years’ experience in preparing wills.  There was nothing in Allison’s appearance or demeanour or the way she gave her instructions that caused Mr McDell to think that there was an issue over her testamentary capacity.  She did not show any appearance of lethargy or confusion and did not fail to respond to any question he asked.  He said:

The question of capacity is always at the forefront of your mind when you’re talking to a client.   There was nothing about her, the way she answered questions, the way she looked, her general demeanour, the discussion we had about both her will and powers of attorney.  I got the very clear impression that she understood, this was my own personal opinion obviously, that she knew exactly what she was doing and understood what I was explaining to her to the point where the issue of lack of capacity didn’t even raise its head. I didn’t think there was an issue.

[81]     However, Mr McDell did not know Allison very well and  his view that capacity was not an issue was formed without knowing much of her medical condition, particularly the fact that she was on morphine-based medication.

[82]     Because Mr McDell had formed the view early in the meeting that no issue of capacity  arose,  he  did  not  focus  on  that  question.    He  did  not  engage  in  any significant discussion with her that was likely to identify subtle signs of cognitive dysfunction.   In particular, he disregarded as significant the changes that were proposed in relation to the residuary estate, whereas I accept that this was a fact that warranted  careful  discussion.     Mr  McDell  was  focused  on  potential  Family Protection  Act  claims  but  the  potential  moral  claims,  for  the  purposes  of testamentary capacity, were wider in scope.  Ideally, Allison should have been asked to explain in her own words the reasons for departing from an equal distribution to the niece and nephews to whom she had always been close.

[83]     There were also a number of other things that Mr McDell did not ask about. He did not ask her about the “receptions/celebrations” which could have been a significant  expense  judging  from  one  of Allison’s  notes  suggesting  a  figure  of

$100,000 to be allowed for it.   He did not ask about the note “to be decided TV, sofas, furniture”, dismissing that item as insignificant.   He did not know who “Barbara Loosley” was but did not ask.   He did not ask about the deletion of a specific provision for Allison’s clothes, jewellery and furniture which, in the 2011 will,  were  to  go  to  her  only  niece.    Although  there  was  no  specific  evidence regarding such items, it was obvious from the evidence generally that Allison still owned  clothes  and  personal  effects.    This  was  a  surprising  departure  from  the previous will and its omission warranted some enquiry.

[84]     I  find  that  Mr  McDell’s  discussion  with Allison  on  29 April  2014  was insufficient to enable him to make an accurate assessment regarding testamentary capacity.  This finding does not carry any criticism of Mr McDell.  His conduct was not at issue and it was not put to him that he had failed in any way.

Mr McDell’s evidence about 2 May 2014

[85]     When Mr McDell came to Dove House on 2 May 2014, the question of capacity was not at the forefront of his mind.  He said that, in his view, there had been no reason for him to be concerned when he saw Allison on 29 April and did not think it likely that she would have deteriorated significantly in the meantime.

[86]     Allison was lying down when Mr McDell arrived and the staff raised the head of the bed so that she could talk to him.  He stood at the head of the bed, on Allison’s left, and directed her attention to the parts of the will that she had wanted to alter, the new bequests, how the residue was to be divided and asked her whether she was happy with the will and whether it was what she wanted to do.  She gave an affirmative answer.  Mr McDell said:

She  was following what I was  saying but  she,  I think the  best  way to describe my impression of her at that point was she wasn’t the chirpy Allison from the two days before and she looked uncomfortable …

She  certainly  appeared  tired,  tired  and  uncomfortable  is  the  best  I  can describe my impression.

[87]     Mr McDell was with Allison for about 20 minutes.  He stood beside her bed pointing out the features of the new will and asked words to the effect “are you happy with this, are you okay with this?” before explaining that it would need to be signed and witnessed.   She gave a non-specific affirmative answer.   He could not recall exactly what words she used.  He requested a witness and while that was being organised he explained the enduring powers of attorney for personal care and welfare and for property.  Mr McDell’s impression was that she was following what he was saying but appeared tired and uncomfortable.  Then Ms Stadler-Hanekom came in. Mr McDell introduced himself and told her that he had known Allison for a long time and that she would like to change her will.  According to Ms Stadler-Hanekom, Allison looked calm, not in pain and appeared lucid.  She said “Yes this is what I

wish”. Mr McDell recalled the three documents being put in front of Allison for signing, one after the other, the will first.

[88]     In considering the weight to put on Mr McDell’s evidence, I have taken into account the evidence from Dr Cheung regarding the risks of cognitive dysfunction and/or delirium not being identified by lay people.  I have also considered the Task Force recommendation regarding the assessment of testamentary capacity, which Dr Simpson agreed with.  I find that Mr McDell did not have the question of capacity in his mind and his conversation with Allison was limited to the kinds of questions identified by the Task Force report as not being likely to indicate whether testamentary capacity existed or not.  His evidence is therefore of limited assistance in determining the question of testamentary capacity on 2 May 2014.

Allison’s diary entries

[89]     One of Allison’s diaries put in evidence contains entries at both the front and the very back.  It also contained four pages of entries near the back but unrelated to the entries at the very back.  Some of these entries were relied on by the plaintiffs as showing a confused state of mind.   Others were relied on by the defendants as showing that Allison had been contemplating changing her will in favour of Nick and Tom for some time so that the changes were not likely to be the product of disordered thinking.   I find that, on the balance of probabilities, these four pages were all made in New Zealand within a relatively short time prior to Allison’s death and that they tended to support the plaintiffs’ assertion that Allison was confused in the week leading up to her death.

[90]     One of the entries was the note that Allison made about seeing Mr McDell.  It was clearly made over the weekend of 26-27 April or on Monday 28 April.   It contained some inexplicable errors.  Allison spelt Mr McDell’s name wrongly; “McLell” rather than “McDell”.   She wrote out Mr McDell’s telephone number twice (this aspect I have already discussed).  She recorded the appointment she had made as “Tues 28/11” rather than the correct date, which would have been “Tues

29/04”.

[91]     On the page opposite the entry about Mr McDell was the following note in extremely shaky handwriting:

1,000,000

15 000,000                1,500,00

£250,000 each           -      500        Tom & Nick

-        50        Jill

Drinks nibbles  Mark & Ben B & K £50 each          -       50         Ben Ten Ben Tom & Nick £250,000  -       50         Kate

1    ‘00

£ 71

£ 65, - Lossley (sic)

[92]     These  notes  contain  some  numbers  that  do  not  make  sense  such  as “15,000,000” and £71 which have no apparent relevance.   Allison also spelt “Loosely” wrongly.

[93]     Over the next page there is an entry “overseas – if coming” and below that four names of people who lived in South Africa and Greece.  Below those names, in shaky handwriting and notable for the errors on the third line, is:

After the Thanksgiving and Drinks Allison Slater invites you for a celebration lunch of her life lunch

at Charlotte Peddie’s Bannister’s Farmhouse

etc       Dress: Bright Colours

[94]     Opposite that page is a list under the heading “Prime people lunch – invites”. That list appeared to comprise Allison’s friends in England and included some whose evidence was read in the trial, as well as Jill and Mark Eleveld.

[95]     Mr Grant invited me to find that Allison made the notes on these two pages while she was in England the previous year, because of the reference to some of the amounts being in English pounds.   He suggested that, if the notes were made in

England, it would suggest that Allison’s thinking for quite some time had been to

leave the residue of the estate to Tom and Nick.

[96]    There was unchallenged evidence that Allison had previously expressed thoughts of leaving Tom and Nick more than their cousins.   So the issue is not whether she had previously considered this but, rather, her state of mind in the week beginning 28 April 2014.

[97]     I find that the sequential pages containing the notes of possible bequests, the list of invitees and the note about Mr McDell, which are all similar in appearance, were made in New Zealand.  They differ in appearance and position to the notes at the very back of the diary which clearly were made in England.  Given that Allison had lived all her adult life in England and had only very recently brought her money from there to New Zealand, I do not ascribe particular significance to the reference to pounds.  This is all the more so when considered against the other indications that she was confused at times during that week.   Nor do I think that the identity of Allison’s overseas friends suggests that the note was made in the UK.   It is as consistent with her apparent intention to leave money for such a function in England to be arranged by her executors (which it was).

Conclusions on testamentary capacity

[98]     On 2 May 2014 Allison was taking a level of Oxynorm that was higher than recommended for a woman with mild liver impairment.   She would consequently have had a higher level of Oxynorm in her system than would usually be expected. The known side-effects of Oxynorm include confusion and nausea.   The nurses caring for Allison that morning observed that she had had a poor night’s sleep, was lethargic,  uncomfortable,  nauseous  and  unable  to  process  too  many  questions. Dr Simpson  acknowledged  that  there  was  cause  for  concern  about  Allison’s testamentary capacity that day.  I find that the evidence displaces the presumption of testamentary capacity on that day.

[99]     The  onus  was  therefore  on  the  defendants  to  show  that  Allison  had testamentary capacity when she executed her will.  The evidence falls well short of establishing that.  The description given by the nurses caring for Allison on 2 May

2014 was consistent both with the recognised side-effects of Oxynorm and with the delirium that is known to be common in dying patients, particularly her inability to process too many questions.  Mr McDell’s and Ms Stadler-Hanekom’s evidence of Allison’s apparent lucidity and responses is not an adequate counter to the nurses’ observations.    Neither  was  attempting to  assess Allison’s  testamentary capacity; Ms Stadler-Hanekom  was  simply  a  witness  to  the  execution  of  the  will  and Mr McDell had already formed a view that the issue of capacity would not arise. The questions that they asked could not be relied on to elicit information that would allow an adequate assessment.

[100]   If the 2014 will is valid, it will only be by virtue of the rule in Parker v Felgate.   This is a more difficult question because less is known about Allison’s condition on 29 April 2014.  The significant aspects of the evidence are as follows. First, for the reasons already discussed, Allison was very likely to have been affected by the Oxynorm.  There is a real risk that she was suffering from a level of delirium or from confusion resulting from the toxic build-up of Oxynorm in her system, or both.   Either had the potential to affect her cognitive functioning, even if only intermittently.   Secondly, errors in Allison’s diary entries made around this time suggest a level of confusion.  Thirdly, the fact (relied on by Dr Simpson) that Allison had expressed a fear of her money being frittered away does not, in itself, assist in determining Allison’s state of mind at the relevant time.  This is particularly so in relation to the statement she made to Evelyn, which post-dated her instructions to Mr McDell and during the very period over which I have concerns about intermittent cognitive dysfunction.   Fourthly,  although Mr  McDell was  alert to the issue of testamentary capacity and was satisfied on that aspect, his discussion with Allison was  not  adequate to  establish  testamentary capacity.    Fifthly,  I do  not  find  the exchange  Robert  had  with Allison  after  Mr  McDell  had  left  on  29 April  2014 significant;  apparent determination as  to a particular course is not indicative of capacity; on Dr Cheung’s evidence it might equally have been indicative of delirium. Finally, the fact that Allison corrected her error regarding Barbara’s name the next day cannot be elevated to proof to the requisite standard of capacity in relation to her instructions generally because she specifically referred to Mr McDell as preparing a draft, which suggests some uncertainty.

[101]   There is no clear evidence on which to make a retrospective assessment of testamentary capacity.  Some of the evidence points towards Allison having capacity but other evidence points away from it.  Still other evidence could be consistent with either.  I am left far from satisfied that Allison had testamentary capacity when she gave Mr McDell instructions.  The result is that the defendants have not discharged the burden of proving testamentary capacity for the purposes of the rule in Parker v Felgate.

[102]   In the circumstances it is unnecessary for me to consider whether Allison satisfied the standard required by the rule at the time of execution.  But, in my view, even if Allison had had testamentary capacity on 29 April 2014 there would be inadequate evidence from which to conclude that the instructions she gave then still represented her intentions when she came to execute the will.  There had been no intervening confirmation regarding the draft; to the contrary, in her 30 April email she referred to a draft will.  Further, given the evidence of her condition on 2 May, I cannot be satisfied as to her level of understanding that day.

Undue influence

[103]   The plaintiffs allege that during the period between 23 April and 1 May 2014 “and possibly earlier” Robert and/or Jenny and/or Tom persuaded Allison that Ben and Kate were people who could not be relied on to manage any significant sum of money that they received.  It is said that this persuasion led Allison to worry that Ben and Kate would fritter away any money they received, with the result that Allison decided to leave her residuary estate to Tom and Nick.

[104]   For the reasons that follow I have concluded that the evidence does not support the allegation of undue influence.  I do not criticise the plaintiffs for making it, given the circumstances in which the will came to be executed and probate obtained.  The allegation has, however, caused immense hurt and damage within the family.  It is my desire not to add to that situation.  I therefore deal with this cause of action relatively briefly.  I have considered all the evidence but do not feel the need to conduct the same level of analysis as I have undertaken in relation to the issue of testamentary capacity.

[105]   The classic description of undue influence is that of Sir J P Wilde in Hall v

Hall:19

To make a good will a man must be a free agent.  But all influences are not unlawful.  Persuasion, appeal to the affections or ties of kindred, sentiment or gratitude for past services, or pity for future destitution, or the like – these are all legitimate and may be fairly pressed on a testator.  On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.  Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not a record of someone else’s.

[106]   Undue influence may exist without impropriety by the person said to have exercised the undue influence.20

[107]   The plaintiffs relied significantly on Dr Cheung’s evidence and on the Task Force report which identified risk factors tending to predispose a dying person to influence.   These included the degree of dependence on others and the effect of medication.  It is true that in her final weeks Allison was dependent on Jenny and Robert to a significant degree.   By the time she returned from Rarotonga (indeed probably while she was in Rarotonga) she was too unwell to drive or properly care for herself.  It is also the case, as I have discussed, that Allison was affected by her medication.  I accept that she was somewhat vulnerable as a result of these factors. But for the reasons I come to next, I am not satisfied that there was any undue influence over her by Robert, Jenny or Tom.

[108]   First, Robert and Jenny were away a good deal over those last few weeks.  In particular they were away for nearly two weeks in March and nearly two weeks in April, preceding the trip to Rarotonga.  During the week they were all in Rarotonga there  was,  realistically,  very  little  opportunity  for  discussions  that  might  have

resulted  in  pressure  on  Allison.    Upon  their  return  Robert  and  Jenny  went  to

19     Hall v Hall (1868) LR 1 PD 481 at 482.

20     Green v Green [2016] NZCA 486, (2016) 4 NZTR 26021 at [39]–[40]; Carey v Norton [1998]

1 NZLR 661 at 670.

Wellington for that weekend of 25 – 27 April 2014.  It is likely that Allison made her notes of what she wanted to tell Mr McDell  over that weekend or on  Monday

28 April 2014.

[109]   Secondly, although I accept that there was negative talk that went on among the Loosleys about the Powells (Kate  gave evidence,  which  I accept,  of Tom’s acknowledgement of that), I find that such talk was mostly instigated by Allison, who was known within the family for indulging in gratuitous criticism of her family. The conversation between Tom and Allison in March 2014 is the earliest evidence of Allison being concerned about Kate and Ben being likely to fritter money away. Tom said that Allison had made disparaging comments about Kate and Ben and expressed concern about them being able to manage significant amounts of money and about the possibility of Barbara and Kerry using the money for their own debts. Although he said that he did not respond at all to Allison’s speculation, I suspect that it was difficult for him to resist, given Allison’s illness and his closeness to her. However, I am not satisfied that Tom either intended to, or did, unduly influence Allison in relation to her estate.

[110]   After Allison had died, Jenny had a conversation with Evelyn  about the reasons for the changes to Allison’s will.   There is some dispute over that conversation but, at the least, Jenny agreed that she did refer to negative comments Allison had made about the Powell family as  a possible explanation.    I accept Jenny’s explanation that she had drawn on negative comments that Allison had made to her in the past about the Powell family.   I do not accept that it amounted to evidence of anything passing between her and Allison that did or was intended to influence Allison.

[111]   Finally, I do not accept the allegations against Robert that he had manipulated Allison.     The  relationship  between  Allison  and  Robert  was  the  subject  of considerable evidence directed towards showing that Allison disliked Robert and perceived that he disliked her.   It was suggested that she was even afraid of him. Statements by Allison in early 2014 to the effect that Robert had completely changed his attitude towards her were relied on as evidence that Robert had deliberately acted in a conciliatory way as a means of influencing Allison.

[112]    Robert acknowledged that the relationship between him and Allison was not always smooth, which he put down to him not being prepared to accept some of Allison’s views on things.  He found it difficult to have Allison stay with him and Jenny for long periods and even said to Jenny that he would consider moving out when Allison came to stay.  Robert explained that Allison drank heavily when she stayed with them, breaking a promise she had made not to drink in front of Tom, who was struggling with alcohol addiction.  For all that, however, Robert said that he and Allison did share an underlying fondness for one another and that when she was ill he consciously put aside the negativity of the past in order to make her remaining time pleasant and comfortable.  He specifically denied having any discussion with Allison about her will prior to Mr McDell coming on 29 April 2014.

[113]   I accept Robert’s evidence.  He undoubtedly made some errors of judgment; in particular, he and Jenny kept the contents of the will from the Powell family until probate had been obtained.  It is hardly surprising that the plaintiffs drew an adverse inference.   However, looking at the evidence overall I am satisfied that Robert’s conduct was never more than that of a conscientious brother-in-law who recognised that Allison’s time was short and who did what was necessary to support her and Jenny.

Validation under s 14 Wills Act 2007

[114]   Late in the trial the defendants amended their pleadings to seek the validation of  certain  documents  as Allison’s  will  under  s  14  of  the  Wills Act  2007.    In submissions Mr Grant made it clear that this application was to be advanced only if I found (1) that on 29 April 2014 Allison had testamentary capacity and was not acting under undue influence and (2) on 2 May 2014 Allison lacked testamentary capacity and also lacked the degree of understanding to satisfy the rule in Parker v Felgate.

[115]   Given my findings that the evidence is insufficient to prove on the balance of probabilities that Allison had testamentary capacity on 29 April 2014, s 14 cannot assist the defendants.   Nevertheless, for completeness, I address the application of s 14 to the facts in this case.

[116]   The documents sought to be validated are the handwritten instructions that

Allison gave to Mr McDell on 29 April 2014 together with her email of 30 April

2014 or, alternatively, the draft will that Mr McDell prepared and took to Dove House with him on 2 May 2014 or, alternatively, the will that Allison executed that day.

[117]   Section 14 permits certain documents that do not meet the requirements for due execution under the Wills Act to be declared as valid wills.   It is a remedial provision intended to avoid the unfairness of clear testamentary intentions being defeated by the formal requirements of execution.  In the often cited decision of Re

Estate of Campbell, McKenzie J summarised the purpose and effect of s 14:21

Section  14  of  the  Act  made  a  quite  fundamental  change  to  the  law concerning the validity of wills.  Previously, a will that did not comply with the formalities required by law for the execution of a valid will was invalid. That meant that no matter how clearly the testamentary intentions of the deceased had been expressed those intentions could not be given effect if the mode  of  expression  did  not  comply  with  the  formalities  that  the  law required.  Section 14 has been very beneficial in avoiding that outcome.

[118]   Section 14 of the Wills Act provides that:

(1) This section applies to a document that –

(a)  appears to be a will; and

(b) does not comply with section 11; and

(c)  came into existence in or out of New Zealand.

(2) The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the  deceased person’s testamentary intentions.

(3) The Court may consider –

(a)  the document; and

(b) evidence on the signing and witnessing of the document; and

(c)  evidence on the deceased person’s testamentary intentions; and

(d) evidence of statements made by the deceased person.

21     Re Estate of Campbell [2014] NZHC 1632 at [4].

[119]   The first prerequisite for validation under s 14 is that the document appears to be a will.  Although the section refers to “document” singular it is agreed that more than one document can be treated as a will for the purposes of validation.  This first prerequisite is directed towards the definition of “will” in s 8 of the Act i.e. a document  made  by  a  natural  person  that  disposes  of  property,  appoints  a

testamentary guardian or disposes of property to a personal representative.22   In this

case the draft and executed wills clearly satisfy this prerequisite.  I also accept that Allison’s handwritten notes and subsequent email “appear” to be a will, or at least a codicil, for the purposes of s 14, for much the same reason as Whata J relied on in Re Estate of Feron.23    In that case the Judge concluded that a solicitor’s handwritten notes of instructions given by the deceased and a subsequent email together appeared to be a will for the purposes of s 14.

[120]   The second prerequisite is that the document sought to be validated does not comply with s 11, which imposes requirements for due execution in terms of signing and witnessing a will.  Allison’s handwritten notes, her email, and the draft will that Mr McDell prepared satisfy this prerequisite.   The will that Allison executed on

2 May 2014 does not because it was validly executed; ss 11 and 14 are not concerned with testamentary capacity but with the formalities of execution.   As the learned authors of the article “The Scope of the Power of Validation Power” point out, in these circumstances s 14 does not respond because the will’s invalidity is not due to non-compliance with s 11 but rather lack of testamentary capacity.24

[121]    The  third  prerequisite,  that  the  document  came  into  existence  inside  or outside New Zealand, is obviously met.

[122]   If the threshold requirements just discussed are satisfied the Court “may make an order … if it is satisfied that the document expresses the deceased person’s testamentary  intentions”.    In  Estate  of  Hickford  McKenzie  J  considered  that, although this fact was to be determined on the balance of probabilities, there must be

cogent evidence of the deceased’s testamentary intentions because of the importance

22     Section 8(1)(b).

23     Re Estate of Feron [2012] NZHC 44, [2012] 2 NZLR 551.

24     Nicola Peart and Greg Kelly “The Scope of the Validation Power in the Wills Act 2007” (2013)

1 NZ L Representative 73 at 94.

of the a declaration under s 14.25   That approach, with which I respectfully agree, has been followed in a number of cases decided under s 14.

[123]   In Re Feron, Whata J specifically considered whether there might have been any change in the deceased’s intentions between instructing her solicitor and her death.26   He was satisfied from the testimony of the solicitor, the absence of anything that  suggested  she  had  changed  her  mind  and  the  fact  that  all  the  primary beneficiaries under the draft will consented to the order that the instructions and email did reflect the deceased’s testamentary intentions at the time of her death.

[124]   Similarly, in Re Estate of Fowler the deceased gave his solicitor handwritten instructions for a new will and in a subsequent discussion confirmed that he did not wish  to  alter any of the instructions.27     The client  died before  a will could  be prepared.      Lang  J  was  satisfied  from  the  evidence  of  the  solicitor  that  the handwritten instructions accurately recorded the deceased’s testamentary intentions as at the date of his death.

[125]   MacKenzie took the same approach in Re Estate of Osborne.28   The deceased had given his solicitor instructions at a time when he had capacity but  he then deteriorated and the document was never executed.  The Judge was satisfied that the instructions to the solicitor conveyed the deceased’s testamentary intentions and there was no evidence to suggest that he had changed his mind.

[126]   In this case, however, I cannot be satisfied that the documents sought to be validated did represent Allison’s testamentary intentions at the date of her death (leaving aside the issue of testamentary capacity).  In cross-examination Mr McDell agreed that at the conclusion of his visit to Allison on 29 April 2014 the position was that he would prepare a draft will for her to consider.  In her email of 30 April 2014

Allison referred to the “draught (sic)” will that Mr McDell was to prepare, which is inconsistent with the instructions being final and could not, therefore, be regarded as

confirmation of the instructions of the day before.   Mr McDell did not have a

25     Estate of Hickford HC Napier CIV-2009-441-000369, 13 August 2009 at [11], citing Z v Dental

Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.

26 At [20].

27     Re Estate of Fowler [2014] NZHC 371, (2014) 29 FRNZ 671.

28     Re Estate of Osborne [2012] NZHC 1846.

conversation with Allison in which she had confirmed her earlier instructions; his interaction with her on 2 May 2014 was inadequate for that purpose.  Finally, several witnesses referred to Allison’s fickleness and changeable nature.   She had, at the least, told both Tom and Kate different things about what she intended to do with her estate.   In these circumstances, I cannot conclude that Allison’s testamentary intentions when she died remained as she had expressed them to be on 29 and 30

April 2014.

Summary and result

[127]   I find that the defendants have not discharged the burden of proving that Allison had testamentary capacity on either 2 May 2014 or when she gave instructions to Mr McDell on 29 April 2014.  The medical evidence casts significant doubt on her testamentary capacity; the defendants’ evidence is not sufficient to satisfy me of her competence at the relevant times.   I am therefore satisfied that Allison did not have sufficient testamentary capacity to make the will valid either when she executed the will, or by virtue of the rule in Parker v Felgate.

[128]   On  the  alternative  cause  of  action,  I  find  that  the  plaintiffs  have  not established undue influence by members of the Loosley family.

[129]   Nor is there any basis for validating documents that pre-dated the executed will under s 14 of the Wills Act 2007 because that would require me to be satisfied as to Allison’s testamentary intentions, which I am not.

[130]   I make an order recalling probate of the 2014 will.   The plaintiffs seek an order granting probate of Allison’s previous will but the better course is for them to seek probate of that will in the usual way.

[131]   The  parties  may  address  the  issue  of  costs  by  memoranda  filed  by  the plaintiffs within 14 days, the defendants within 21 days and any reply within 28

days.

P Courtney J