Fitzgibbons v Fitzmaurice - [2014] NZHC 710

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-1463 [2014] NZHC 710

UNDER
the Wills Act 2007 and the Administration

Act 1969

IN THE MATTER

of the Estate of Garth Hilton Hughes

BETWEEN

HAROLD PAUL FITZGIBBONS AS EXECUTOR IN THE ESTATE OF GARTH HILTON HUGHES Applicant

AND

AILEEN YVONNE FITZMAURICE Interested Party

Hearing: 1 April 2014

Counsel:

K R Pascoe for Applicant
S W Hughes QC for Interested Party

Judgment:

8 April 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 8 April 2014 at 1.45 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Nicholsons, New Plymouth for Applicant
Quin Law, New Plymouth for Interested Party

FITZGIBBONS v FITZMAURICE [2014] NZHC 710 [8 April 2014]

Introduction

[1] The application before the Court has been brought by Mr Fitzgibbons as executor of the will of Mr Hughes, who died in New Plymouth on 6 March 2013. The issue for determination is whether a suicide note left by Mr Hughes constitutes a valid will or codicil pursuant to s 14 of the Wills Act 2007 (the Act).

[2] Section 14 of the Act provides that the Court may make an order declaring a document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.

[3] In determining this, the Court may consider the document, evidence relevant to the signing and witnessing of the document, evidence relating to the deceased person’s testamentary intentions, and evidence of statements made by the deceased person.

[4] In terms of those criteria, the handwritten suicide note left by Mr Hughes was signed by him but not witnessed by any person and was unaccompanied by any prior statements by him evidencing any intention to revoke his existing will.

Background

[5] Mr Hughes was born in 1925 and Mrs Fitzmaurice, the interested party and his only sibling, was born in 1929.

[6] Mr Hughes enlisted in the New Zealand Navy on leaving school and later returned to work on the family farm until it was sold. He never married or had a family and his one great interest in life appears to have been building model boats. He was described as a very private and independent person who did not like to accept help, although in his later years and as his health deteriorated, he did accept help from his neighbours, Mr and Mrs Pierce.

[7] When Mrs Fitzmaurice left school, she trained as a nurse and became a Territorial officer holding a commission in the New Zealand Army. In 1958 she left for England, where she nursed on a casual basis while waiting to be inducted into the

British Army as a commissioned officer. In 1962 she married. She and her husband had two children, born in 1963 and 1964. In 1965 the family emigrated to Australia to live in Melbourne. Mrs Fitzmaurice’s husband died in 2002 and she lives in a retirement village in Melbourne. She was aged 84 at the time of her…

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 Fitzgibbons v Fitzmaurice

Details

AGLC: Fitzgibbons v Fitzmaurice [2014] NZHC 710
Case: [2014] NZHC 710
Decision Date: 8 April 2014

CaseChat Overview and Summary

The case of Fitzgibbons v Fitzmaurice involved an application by Mr. Fitzgibbons, as the executor of Mr. Hughes' will, to have a suicide note left by Mr. Hughes declared as a valid codicil to his will. The interested party, Mrs. Fitzmaurice, contested the validity of the note, arguing that Mr. Hughes lacked the requisite testamentary capacity when he wrote it. The central legal issue was whether the suicide note expressed Mr. Hughes' testamentary intentions as required by section 14(2) of the Wills Act 2007.

The Court considered evidence regarding Mr. Hughes' mental and physical health prior to his death, weighing the testimonies of Mr. Fitzgibbons, who had a brief interaction with Mr. Hughes, against those of Mr. and Mrs. Pierce, and Mrs. Fitzmaurice, who had known Mr. Hughes for many years. The Pierces and Mrs. Fitzmaurice testified to Mr. Hughes' declining mental state, marked by confusion, anxiety, and depression, particularly in the period leading up to his death. In contrast, Mr. Fitzgibbons, who had a single, short meeting with Mr. Hughes, described him as mentally alert and lucid.

The Court found that Mr. Hughes' ability to think rationally was significantly impaired by his deteriorating mental and physical health, leading to the conclusion that he lacked testamentary capacity at the time he wrote the suicide note. The Court dismissed the application, holding that the note did not express Mr. Hughes' testamentary intentions and thus did not satisfy the requirements of section 14(2) of the Act. Consequently, Mr. Hughes' will dated 17 November 1999 was admitted to probate.

Orders