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Farn v Loosley

Farn v Loosley

Case [2017] NZHC 317 2 March 2017

Testamentary Capacity

Undue Influence

Validation of Wills

Rule in Parker v Felgate

Wills & Succession

Medical Law

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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…

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.

Continue reading Farn v Loosley

Details

AGLC: Farn v Loosley [2017] NZHC 317
Case: [2017] NZHC 317
Decision Date: 2 March 2017

CaseChat Overview and Summary

The plaintiffs, family members of Allison Slater, challenged the validity of the will that she executed on 2 May 2014. The defendants, executors of the will and interested parties, sought to have the will validated under s 14 of the Wills Act 2007. The plaintiffs argued that Allison lacked testamentary capacity when she executed the will, and/or that it was the product of undue influence. They also sought to have Allison's previous will, which would leave the residuary estate shared among a larger group of beneficiaries, operate. The court found that the defendants had failed to discharge the burden of proving Allison had testamentary capacity. The court found the evidence insufficient to prove that Allison had testamentary capacity when she gave instructions for the will or when she executed it, and that the will did not fall within the rule in Parker v Felgate. The court also found that the plaintiffs had not established undue influence. The defendants' application to validate the documents under s 14 of the Wills Act 2007 was dismissed. The court made an order recalling probate of the 2014 will.

Orders