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Gorringe v Pointon

Gorringe v Pointon

Case [2022] NZHC 342 3 March 2022

Testamentary Capacity

Undue Influence

Fiduciary Obligations

Probate and Administration of Estates

Wills & Succession

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-485-000349

[2022] NZHC 342

BETWEEN ROMILEY CHANTAL GORRINGE and ASHLEY SHAYLIN GORRINGE
Plaintiffs

AND

JUDITH ANNE POINTON and SUSAN

RUTH HENDERSON as executors of the Estate of Joan Blair Gorringe

Defendants

Hearing: 19-22 July 2021

Appearances:

J Hosking and C Drought for the Plaintiffs

K Catran for the first named defendant (as beneficiary) S Scott for the second named defendant

Judgment:

3 March 2022

JUDGMENT OF WALKER J

This judgment was delivered by me on 3 March 2022 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

GORRINGE v POINTON [2022] NZHC 342 [3 March 2022]

TABLE OF CONTENTS

Introduction [1]

Background [9]

Events leading to the 2015 and 2016 Wills [22]

Prior Wills [22]

The 2015 Will [27]
Circumstances in which the 2015 Will signed [29]

The 2016 Will [57]

Circumstances in which 2016 Will signed [58]

Events after Joan’s death [67]

Claims [73]

Issues [78]

Did Joan have Capacity? [80]

Legal principles — [80]

The Evidence [87]

Preliminary [87]

Evidence as to capacity [95]
Contemporaneous communications about Joan [101]

Medical evidence  [108]
Other evidence relied on by Plaintiffs  [129]
Evidence suggesting Joan had capacity  [136]
Conclusion as to capacity  [149]

Undue Influence [150]

Legal Principles  [151]
Evidence of undue influence?  [159]
Analysis of Joan’s statements to Ashley and Romiley  [166]

Spending from Joan’s bank account [181]
Conclusion as to undue influence [188]

Did the executors breach fiduciary obligations owed to the plaintiffs? [193]

Result [202]

Introduction

[1] Joan Gorringe died on 24 October 2019. She was 101 years old. She made wills on 16 March 2016 (2016 Will) and 19 November 2015 (2015 Will). Probate in common form was granted in respect of the 2016 Will. The essential questions in this proceeding are whether probate should be recalled, the 2016 and the 2015 Wills declared invalid and probate granted in respect of an earlier Will made in June 2011.

[2] Freedom of testamentary disposition is a fundamental principle of the common law. A testator’s advanced years and physical illness do not diminish that principle. But a person must have testamentary capacity for their will to be valid. Whether Joan Gorringe (Joan) had such capacity when she made the 2016 Will and if not, whether she had capacity when she made the 2015 Will are the first issues in this proceeding. The second issue, if Joan had testamentary capacity, is whether the prevailing will is voidable for undue influence of her daughter, Judith Pointon (Judith), the first named defendant, co-executor and primary beneficiary of both the 2015 and 2016 Wills. The third and lesser issue is whether the co-executors breached fiduciary obligations of even-handedness between beneficiaries of Joan’s estate.

[3] The plaintiffs, Romiley and Ashley Gorringe, are two of five adult grandchildren of Joan.1 Their father was Peter Gorringe, Joan’s late son who died unexpectedly on 10 November 2015. Romiley and Ashley both live in the United States.…

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 [2022] NZHC 342
Case: [2022] NZHC 342
Decision Date: 3 March 2022

CaseChat Overview and Summary

The case of Gorringe v Pointon was heard by Walker J, who identified the parties, the nature of the dispute, and the court. The plaintiffs, Romiley and Ashley Gorringe, are two of five adult grandchildren of Joan Gorringe, who passed away in 2019. They argue that their grandmother did not have capacity when she signed the 2015 and 2016 Wills, or that both Wills were the product of undue influence by their aunt, Judith Pointon, the first named defendant. The defendants, Judith Pointon and Susan Henderson, are the executors of Joan's estate.

The legal issues the court was required to decide were whether Joan Gorringe had the capacity to execute the 2016 Will, if she had capacity, whether the 2016 Will was procured by Judith through undue influence, and if the executors breached fiduciary obligations owed to the plaintiffs.

Walker J concluded that there was no cogent evidence of increasing confusion and memory loss on Joan's part sufficient to shift the onus to the defendants. The court found that Joan did have testamentary capacity when she executed the 2016 Will, and the 2016 Will was not the result of any undue influence. The court also dismissed the plaintiffs' claim for breach of fiduciary obligations by the executors.

The final orders of the court were to dismiss the plaintiffs' claims and uphold the 2016 Will. The court reserved all questions of costs, inviting submissions from the parties if they were unable to resolve costs between themselves.

Orders