Gorringe v Pointon - [2023] NZCA 42

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA151/2022
[2023] NZCA 42

BETWEEN	ROMILEY CHANTAL GORRINGE AND ASHLEY SHAYLIN GORRINGE Appellants
AND	JUDITH ANNE POINTON AND SUSAN RUTH HENDERSON AS EXECUTORS OF THE ESTATE OF JOAN BLAIR GORRINGE Respondents

Hearing:	26 October 2022
Court:	Brown, Mallon and Downs JJ
Counsel:	J R Hosking and C J Drought for Appellants K J Catran for Respondents
Judgment:	7 March 2023 at 1.00 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

BOrder declaring the 2015 Will invalid on the ground that it was procured by undue influence.
COrder declaring the 2016 Will invalid on the ground that it was procured by undue influence.
DOrder granting probate of the will dated 7 June 2011.
EOrder appointing independent executors and trustees.
FThe issue of costs, both in this Court and in the High Court, is reserved. We grant leave to the parties to file written submissions on the issue of costs within the parameters described at [114]. The appellants’ submissions are to be filed and served by 21 March 2023 and the respondents’ submissions are to be filed and served by 4 April 2023.

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Table of Contents

Para No
Introduction  [1]
Factual overview  [5]
Joan’s living arrangements  [5]
Circumstances in which the 2015 Will was made  [8]
Joan’s statements to the appellants  [12]
Circumstances in which the 2016 Will was made  [14]
The High Court judgment  [17]
Issues on appeal  [20]
Undue influence: relevant principles  [21]
Burden of proof  [21]
Proving undue influence  [24]
Relevance of independent advice  [30]
Did the Judge err in finding there was no undue influence in

respect of the 2015 Will? [31]

A discussion about wills  [31]
Instructions for the 2015 Will  [41]
Execution of the 2015 Will  [44]
The reasons for the Judge’s conclusion  [53]
Discussion  [63]
Did the Judge err in finding there was no undue influence in

respect of the 2016 Will? [81]

Another discussion about wills  [81]
Instructions for the 2016 Will  [82]
Judith contacts Fenton McFadden  [85]
Execution of the 2016 Will  [90]
The reasons for the Judge’s conclusion  [92]
Discussion: the events of 2016 in isolation  [93]
Discussion: the combination of events in 2015 and 2016  [99]
Our conclusion  [105]
Result  [113]

REASONS OF THE COURT

(Given by Brown J)

Introduction

This appeal concerns allegations of undue influence in relation to wills made by Joan Gorringe on 19 November 2015 (2015 Will) and 16 March 2016 (2016 Will). Joan had two children, Peter and Judith. Peter had two children, Romiley and Ashley, who are the appellants. Judith and her husband Christopher Pointon had three children: Nicholas, Michael and Natalie.
Peter died unexpectedly on Tuesday 10 November 2015. Joan’s then current will (2011 Will) made a specific bequest to Judith of all Joan’s clothing, jewellery and furniture.[1] With reference to the balance of Joan’s estate the 2011 Will stated:
Residue
4. My trustee shall hold (the rest) of my estate (“the residue”) as follows:
(a)To pay…

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 Gorringe v Pointon

Details

AGLC: Gorringe v Pointon [2023] NZCA 42
Case: [2023] NZCA 42
Decision Date: 7 March 2023 at 1.00 pm

CaseChat Overview and Summary

This appeal concerns allegations of undue influence in relation to wills made by Joan Gorringe on 19 November 2015 (2015 Will) and 16 March 2016 (2016 Will). The appeal concerns the Judge’s conclusion that there was no undue influence in respect of either will. The Court allowed the appeal and concluded that undue influence was exercised by Judith Pointon over Joan Gorringe in respect of both wills. The 2015 Will was declared invalid on the ground that it was procured by undue influence. The 2016 Will was declared invalid on the ground that it was procured by undue influence. Probate was granted in respect of Joan’s will dated 7 June 2011. Independent executors and trustees were appointed. The issue of costs was reserved and the parties were granted leave to file written submissions on the issue of costs. Romiley and Ashley, the grandchildren of Joan, were the appellants. Judith and Susan Henderson, the executors of Joan’s estate, were the respondents. The appellants alleged undue influence by Judith over Joan in relation to the 2015 and 2016 Wills. The Judge found that Joan’s statements to Romiley and Ashley were “equivocal” and that undue influence was not established. The Court found that Joan’s statements were not equivocal. The Court concluded that the circumstances raised a more probable inference in favour of what was alleged than not.

Orders