Farn v Loosley

[2015] NZHC 1045

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-485-6345 [2015] NZHC 1045

UNDER

the Administration Act 1969 and the High

Court Rules

IN THE MATTER

of the estate of Allison Shirley Slater

BETWEEN

EVELYN GWYNNE FARN, KATHERINE ANNE POWELL, BENJAMIN MATTHEW POWELL, BARBARA ANNE POWELL, JILL ROSEMARY ELEVELD AND MARK ELEVELD

Plaintiffs

AND

JENNIFER RUTH LOOSLEY AND ROBERT GEORGE LOOSLEY Defendants

AND

THOMAS ALEXANDER LOOSLEY AND NICHOLAS EDWARD LOOSLEY Interested Parties

On the papers
Counsel:	WJ Scotter for plaintiffs AF Grant for defendants
Judgment:	19 May 2015

JUDGMENT OF FAIRE J

This judgment was delivered by me on 19 May 2015 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Harkness Henry, Hamilton

Duthie Whyte, Auckland

Farn v Loosley [2015] NZHC 1045 [19 May 2015]

The proceeding

[1]      In this proceeding the plaintiffs seek an order recalling probate of a will dated

2 May 2014 and granted to the defendants on 11 June 2014.

The agreed issues

[2]      The parties identify two issues requiring determination in this proceeding, namely:

(a)       Was the will signed by Allison Shirley Slater (deceased) on 2 May

2014 made by her at a time when she lacked testamentary capacity?

(b)Alternatively,  was  the  will  made  by Allison  Shirley  Slater  under undue influence on the part of Jennifer Ruth Loosley, Robert George Loosley, Thomas Alexander Loosley or Nicholas Edward Loosley?

Pre-trial direction

[3]      At a case management conference on 31 March 2015, counsel raised an issue as  to  where  the  onus  of  proof  lies  in  this  case.     Counsel  recognised  that determination of that issue affects who has the right to begin.  They request a ruling pursuant to r 7.8(3) of the High Court Rules.

[4]      I set a timetable for the exchange of submissions on the issue.  They have been filed.  I recorded in the minute issued on 31 March 2015 that I would issue a ruling based on the papers unless further clarification was required, in which case an oral hearing would be scheduled.  I am satisfied that the matter can be dealt with on the papers.

The plaintiffs’ contentions

[5]      I  intend  to  briefly  summarise  the  contentions  of  the  plaintiffs  and  the defendants.  I am grateful to counsel for the memoranda and reference to authorities that they have provided.   This short summary certainly does not do justice to the

matters advanced to the Court but, at least, sets out the precise approach adopted by each.

[6]      For the plaintiffs, Mr Scotter submitted:

(a)      That notwithstanding the grant of probate the onus of proof of proving testamentary capacity remains with the defendant executors;

(b)      That on the question of undue influence the onus is on the plaintiffs.

The defendants’ contentions

[7]      Mr Grant submitted:

(a)      The initial onus of proof lies on  the party making an  affirmative assertion: in this case, the plaintiffs;

(b)As the plaintiffs have not pleaded that the will was either not duly executed or not rational on its face, the presumption of sanity applies and must be rebutted by positive evidence from the plaintiffs;

(c)      To displace the initial presumption that a will-maker had sufficient testamentary capacity there must be some evidence raising the lack of capacity as a tenable issue; and

(d)The initial or evidentiary onus is with the plaintiffs, with the result that the plaintiffs must begin.

The position analysed

[8]      The ruling sought in this case cannot determine the overall onus of proof for reasons which I will shortly set out.  What is required, however, is a determination of who has the initial onus and therefore must begin.  I emphasise that the ruling I make is not a determination of a question in terms of r 10.15 of the High Court Rules.  The issue of where the burden of proof finally lies is a matter that must be determined at trial.

[9]      So far as the second issue is concerned, counsel are agreed that the plaintiffs must satisfy the onus in respect of the undue influence issue.   There can be no question, therefore, that in respect of that matter the plaintiffs should begin.

[10]     So far as the testamentary capacity issue is concerned, the plaintiffs accept, and it is clear from the pleadings, that the plaintiffs have not pleaded that the will was not duly executed.  Further, the plaintiffs have not pleaded that the will is not rational on its face.  The plaintiffs accept that the consequence that flows from this position is that the presumption of sanity applies and must be rebutted by evidence from the plaintiffs.1

[11]     The above suggests that the initial obligation and initial onus lies with the plaintiffs.  That position is further supported by reference to r 27.34(3) of the High Court Rules which provides that unless an application is unopposed, a person who applies for an order for the recall of a grant of probate must bring proceedings.

[12]     Rule 27.9 deals with pleadings.  Subrule (5) provides:

27.9     Pleadings

…

(5)       If the allegation is that the will-maker did not have testamentary capacity  when  the  will  was  executed,  the  pleading  must  state whether the incapacity lay in any or all of the following:

(a)       the will-maker's lack of ability to comprehend or recollect the extent of his or her estate; or

(b)       the will-maker's lack of ability to comprehend or recollect the claims of persons excluded from participating in his or her estate; or

(c)       the  will-maker's  insane  delusions  about  the  persons  who have claims on his or her estate; or

(d)      some other specified incapacity.

[13]     In Edgcombe v Edgcombe the court held that in a suit to obtain a decree

revoking a grant of probate on the grounds of the testator’s testamentary incapacity,

1      William M Best An Exposition of the Practice relative to the Right to Begin and Right to Reply in Trials by Jury, and in Appeals at Quarter Sessions (Richards and Co, London, 1837) at 29–30.

the burden of proving the allegation that the testator was not of sound mind at the time he executed the will is upon the party attacking it.2  The court further held that it was therefore for that party to begin.

[14]     Mr Scotter referred to a passage in Dobbie’s Probate and Administration

Practice where the learned authors say:3

In an action for revocation of probate on the ground of want of testamentary capacity, the onus of proving the will remains on the executor propounding it, whose counsel should begin in spite of r 27.34.

[15]     The authors rely on two authorities.  In the first, Marshall v Public Trustee,4 the grounds of application for recall were that when the will was executed the will- maker was not of sound mind, memory and understanding and did not approve the will.   The judge hearing the case then cited the proposition referred to in Dobbie which was not the subject of any argument.

[16]     I accept Mr Grant’s submission that when the judgment is considered the statements to the effect that the executor had discharged his obligation of showing that there was a prima facie case for holding that the testator possessed testamentary capacity and knew and approved the terms of the will show that Denniston J was referring only to the initial onus that leads to the presumption in favour of capacity. The judge’s later reference to onus of proof was made in the context of delusions suffered by the testator.

[17]   Further, Mr Grant submitted that what the judge did was to apply the conventional approach to the effect that a person who was generally suffering from insane delusions is presumed to lack testamentary capacity and that the onus then shifts to those who seek to establish the existence of testamentary capacity to prove that despite the delusions, the state of mind of the testator was such as to render him

capable of making a will.

2      Edgcombe v Edgcombe (1896) 14 NZLR 561.

3      John Earles and others Dobbie’s Probate and Administration Practice (6th ed, LexisNexis, Wellington, 2014) at [43.4].

4      Marshall v Public Trustee [1916] NZLR 969.

[18]     Mr Grant submitted that when the judge’s comments are analysed they do not support  the  bland  proposition  in  Dobbie  that  in  all  cases  the  onus  is  on  the respondent to prove the presence of testamentary capacity.

[19]     The second case relied upon to support the proposition in Dobbie is Copeman v  Staples  and  Smith.5      Mr Scotter  accepted  that  when  that  case  is  analysed  it establishes  that  if  the  plaintiffs’ evidence  raises  a  doubt  as  to  the  testamentary capacity, the burden shifts to the proponents of the will.  It is not authority for the proposition that in an application for the recall of probate the respondent bears the onus and proof in all cases.  The position is indeed clarified in the judgment, where Chapman J said:6

The onus of proving the will remains upon the executor propounding it though if no evidence is given the common presumption of sanity may be relied upon.

[20]     The position has been further clarified by the Court of Appeal in Peters v

Morris where the Court said:7

The approach adopted to the matter of proof in all these cases is the same - that before a will can be admitted to probate it must be shown that the testator was a person of sufficient mental capacity; that in the absence of any evidence to the contrary it will be presumed that the document has been made by a person of competent understanding; that once a doubt is raised as to the existence of testamentary capacity an onus rests on the person propounding the will to satisfy the Court that the testator retained his mental powers to the requisite extent; that in the end the tribunal must be able to declare that it is satisfied of the testator's competence at the relevant time, but that a will will not be defeated merely because a residual doubt remains as to that matter. The matter has been put in different ways with varying degrees of emphasis according to the circumstances of each case but we do not detect any difference of judicial opinion, significant for the purposes of the present case, in the passages cited.

[21]     The same position was more recently expressed by Briggs J in Key v Key:8

The burden of proof in relation to testamentary capacity is subject to the following rules (i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to

5      Copeman v Staples and Smith (1911) 13 GLR 467.

6      At 468.

7      Peters v Morris CA 99/85, 19 May 1987 at 25.

8      Key v Key [2010] EWHC 408 (Ch), (2010) 1 WLR 2020 at [97].

raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless: see generally Ledger v Wootton  [2008] WTLR 235, para 5, per Judge Norris QC.

[22]     Counsel’s concern no doubt arises from a position that the onus may change as the evidence unfolds.   That position can easily be addressed by way of supplementary briefs and in reliance on r 9.8 of the High Court Rules.

[23]     The conclusion I reach is that the plaintiffs must open in respect of both causes of action.  It will then be for the trial judge to determine whether a sufficient doubt has been raised as to the existence of testamentary capacity for the onus to shift to the executors propounding testamentary capacity.

[24]     I rule accordingly.

[25]     I reserve costs.  If costs are sought and counsel agree, memoranda in support, opposition and reply shall be filed and served at seven-day intervals.

[26]     The case shall now be the subject of a further case management conference before me as directed in paragraph 13 of my minute of 31 March 2015.

JA Faire J