Gorringe v Pointon
[2022] NZHC 342
•3 March 2022
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
PlaintiffsAND
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. They have lived out of New Zealand for many years but grew up in New Zealand. Both had a loving relationship with their grandmother and recalled time spent with both grandparents on their farm. Neither have children. They argue that their grandmother did not have capacity when she signed both the 2015 and 2016 Wills or that both Wills were the product of the undue influence of their aunt. They have also claimed special damages against the co-executors of Joan’s Will.
[4] Judith is a retired registered nurse and psychiatric nurse. Her husband of 50 years, Christopher Pointon, is a retired secondary school teacher. They have three adult children (Joan’s grandchildren) and two grandchildren. Judith describes their living situation as modest. She and her husband have a reverse mortgage and do not
1 In view of the shared surname, I will refer to the plaintiffs by their first names.
have large savings. Judith deposed that the couple are relying on Joan’s estate to see them through their old age. Judith is the beneficiary of the residue of Joan’s estate under the 2015 and 2016 Wills.
[5] Susan Henderson, the second-named defendant, is the co-executor. She is a principal of Fenton McFadden, the firm of solicitors who acted for Joan in respect of each of her wills since 2011. The claim for breach of fiduciary duty centres on an allegation that the co-executors applied for probate of the 2016 Will without notice to the plaintiffs, knowing there was a likely contest and stymieing the plaintiffs’ attempt to lodge a caveat. For reasons which will emerge, that cause of action was not pressed with particular vigour by the time of closing addresses.
[6] The genesis of this litigation is a deep-seated belief on the part of Ashley and Romiley that the changes Joan made to her wills after 2011 did not reflect her actual wishes. Their belief is grounded in a conversation with their grandmother a mere few days after the 2015 Will was executed.
[7] Under former wills, Joan’s estate was to be divided between Peter and Judith. A gift over clause meant that in the event of the death of Peter or Judith before their mother, their share of Joan’s estate would pass to their respective children, Joan’s grandchildren. The 2015 Will altered this division. It made separate and equal distributions to each of the five grandchildren, leaving the residue of the estate to Judith. The 2016 Will was expressed in the same terms but provided that, in the event of Judith’s death before her mother, the residue would pass to Judith’s husband. Ashley and Romiley perceive these changes as inexplicably favouring one side of the family.
[8] The 2011 Will prevails should the plaintiffs succeed. In that event, they will take a half share between them under the gift over provisions. There is no practical difference in outcome between the 2015 and 2016 Wills because Judith did not die before her mother. If either the 2015 or 2016 Wills prevail, each of Joan’s grandchildren receive a distribution of $50,000 and Judith receives the bulk of the
estate. The estate had a value of approximately $1.5 million when the assets were gathered in by the executors.2
Background
[9] I begin with a brief introduction to Joan and her family before turning to the evidence. This background cannot hope to capture the mosaic of Joan’s life or the nature of her relationships with family members but sets the scene for the issues to be determined in this proceeding.
[10] A formidable woman, described by family and friends as intelligent, dignified, sharp, well-informed and stoic, Joan spent the last years of her life in a care home in Papamoa. It is regrettable that her legacy is marred by disclosure of the more intimate and private details of the last years of her life and the conflict between two branches of her family. This is an all too familiar consequence of claims of this type.
[11] Joan graduated from Victoria University with a Bachelor of Arts and qualified as a teacher in the 1930s. She worked as a teacher and married her husband, Erl, when he returned to New Zealand from active duty in the war. Erl worked as a stock buyer for many years while they saved to buy small blocks of land for beef cattle. By the 1950s they owned a small farm near Pahiatua and then a sheep and cattle farm at Papamoa.
[12] Joan and Erl had two children together. Peter, a barrister who practised in Hamilton until his death and Judith.
[13] Judith’s husband, Christopher, was a visitor to the Gorringe farm often in his youth and earned money during university holidays grubbing thistles and slashing gorse with Erl.
[14] Joan and Erl were ardent rugby fans. Joan loved travel, reading, music and gardening. She had an interest in local and world affairs and was a keen member of Forest and Bird. According to Judith, Joan voted in the local body elections just two
2 I note that this sum includes deductions for legal fees in respect of these proceedings which may be in issue.
weeks before she died. Four days before she died, she insisted on watching a replay of the All Blacks-Ireland quarter final in the World Cup.
[15] After selling their farm Joan and Erl lived independently at Papamoa until they were in their 90’s. Joan was still driving at the age of 93. After Erl became ill at the age of 94, the family made the decision to admit him to a rest home in Te Puke. Joan lived alone for while but then moved to a unit at Somervale, a retirement village, where she had friends. Erl transferred to the rest home at Somervale so that Joan could visit daily. Judith was then working next door to Somervale so she was able to visit during the week. On Sundays, she would take her father to Joan’s unit at Somervale for the afternoon.
[16] Erl died a few years later following a fall in which he fractured his pelvis. Joan moved from her unit to a serviced apartment in late 2013 because of mobility issues due to osteoarthritis. In the serviced apartment, meals were provided. There was assistance with dressing and showering but not the same high level assistance as rest home or hospital level care. In short, Joan had a degree of independence while she lived in the serviced apartment. The extent of her independence was the subject of dispute in this proceeding.
[17] Judith lived locally so always had the role of the “on the ground” support for Joan, even before Peter died. She was in regular telephone contact with her mother and visited twice a week — more if Joan needed to go to an appointment or had any other needs. Judith has an extensive background as a care giver. She was also very close to her mother. She says that they got along well despite sometimes disagreeing like many mothers and daughters who have their own opinions.
[18] Peter took responsibility for Joan’s financial affairs. He too visited his mother fairly regularly even though he lived in Hamilton where he had a busy legal practice.
[19] Joan suffered three bouts of serious ill health in her later years. The first was a two week hospital stay in November/December 2014 when she suffered from acute appendicitis. A few months later in May 2015, she was re-hospitalised with a bowel obstruction. This involved a relatively short stay in hospital. She then returned to her
serviced apartment. In August 2017 Joan was found slumped in her chair. She was hospitalised and her blood pressure medication reduced. She was clearly poorly. Once discharged, she was unable to move around without assistance. After discussions with the Clinical Manager of Somervale and her GP, Dr Coster, Judith and Christopher felt that Joan could not manage any longer in a serviced apartment because she needed overnight support and assistance. There was serious concern at this time that Joan may not recover from this illness, yet she did rally. She was formally assessed as requiring care home assistance. Joan relinquished the serviced apartment, received a return of capital from the residential care facility, and moved into the rest home part of Somervale. From that point on, she needed more help with daily living activities.
[20] Joan celebrated her 100th birthday with friends and family on 5 August 2018 with an afternoon tea at Somervale. Romiley came back from the United States to celebrate with her grandmother. Ashley was unable to return at that time.
[21] Joan died on 24 October 2019. Probate was issued on 5 December 2019. The circumstances in which that took place are the subject of the third cause of action.
Events leading to the 2015 and 2016 Wills
Prior Wills
[22] Joan and Erl had executed virtually identical wills in May 1992.3 They appointed each other as their respective executors. They appointed their children as joint executors in the event of the prior death of their executor. The 1992 wills included a gift over clause. This had the effect that should any of their children die before them, leaving a child or children alive, then such child or children take the share that his or her parent would have taken in their residuary estate. 4
[23] Peter was appointed attorney in relation to property for his parents on 20 November 2008. Judith was appointed attorney in relation to personal care and welfare for her parents.
3 The only difference was that Mrs Gorringe gifted her daughter Judith her personal possessions and a sapphire ring.
4 If more than one child then the children take in equal share the share that their parent would have taken.
[24] In 2009, Joan signed a new will. It had been prepared by a former solicitor. She appointed Peter and Judith as executors and trustees. She left the whole of her estate to Erl should he survive her for at least 30 days and, otherwise, to Peter and Judith should they survive her. There was again a gift over provision in the event that either Peter or Judith predeceased Joan. All personal possessions were given to Judith, including Joan’s jewellery. Erl and Joan moved their legal affairs to Fenton McFadden shortly afterwards.
[25] Erl died on 23 April 2011, aged 96. Joan executed a new will on 7 June 2011 (the 2011 Will). Peter and Judith were appointed joint executors of the 2011 Will but no other material changes were made. There were specific bequests of personal effects to Judith. The 2011 Will also contained a gift-over clause.
[26] On 16 June 2011, Joan signed a Power of Attorney appointing both Peter and Judith, jointly and severally, as attorneys in relation to property. The contemporaneous correspondence explains that the reason was that Judith’s physical proximity may come in useful. Peter continued to look after his mother’s investments. The 2008 Power of Attorney for personal care and welfare for Joan remained in place.
The 2015 Will
[27] As with previous wills of Joan, this is a simple two page document. It appoints Judith and Susan Henderson or the survivor of them as executors and trustees. It makes specific gifts of $50,000.00 to each named grandchild living at their death. The balance after payment of debts, duties, funeral expenses and administration expenses is to be distributed to Judith.
[28] There is no mention of personal effects such as jewellery, unlike the 2011 Will. It is possible that Joan may have distributed personal effects before her death when she moved into rest home care. There is no gift over. Oddly, the name of Joan’s grandson, “Michael”, has been misspelt “Michelle”.
Circumstances in which the 2015 Will signed
[29] Peter Gorringe died unexpectedly from a dissecting thoracic aneurysm on 10 November 2015. This was a great shock for the family. It was the second tragic death in Romiley and Ashley’s immediate family as their mother had died just a few years earlier. Moreover, Peter died in New Zealand just a few days after Peter and Romiley had parted after walking the Camino de Santiago trail together.
[30] Judith learned of her brother’s death as she and Christopher were making their way to Waikato hospital to visit him. It was late in the evening. She delayed telling her mother so that she could break this sad news to her in person. Judith arranged for the Somervale nurse and a carer close to her mother to be present when she did so the next day, 11 November 2015. Christopher was with her. Judith described her mother as emotional on the news of Peter’s death. On that day she absolutely sobbed but a few days later was stoical, strong and “she didn’t show a lot [of] emotion”. Christopher described Joan as shocked, and said that she wept for a time and lamented that “…he was coming to see me on Sunday.”
[31] The following day, Thursday, Judith drove back to Hamilton to await Ashley’s arrival from London. Christopher sat with Joan that afternoon and the following morning, during Judith’s absence. His evidence is that Joan was “sad but composed. She was not distressed or agitated…She was capable of having a perfectly normal conversation.”
[32] Ashley and Judith spent Friday together. Judith’s evidence was that they looked for Peter’s will in the house but were unable to find it. They had dinner that evening with Peter’s friend, Deryck. Judith recalls they asked Deryck if he knew where Peter’s will was but he did not. Judith was present in the house when Ashley discovered that his sister had borrowed money from their father and it had not been repaid. Ashley’s evidence was that he was annoyed when he found that out from his search through his father’s papers and expressed that to Judith.
[33] The next day, Judith returned to Papamoa. As far as she knew, Peter’s will had not been found yet. It was eventually located in the Public Trust Office but precisely when is disputed. It is not material. I accept Judith’s evidence that she was not aware
the will had been found until she returned to Hamilton to lunch with Ashley and Romiley, who had, by that time, arrived from the United States.
[34] Judith visited her mother. She asked Joan if she knew where Peter’s will was. It is apparent that Judith conveyed to her mother that trying to find Peter’s will was adding to the stress and drama. Ashley on the other hand, disputes that there was any stress locating his father’s will. He says that it merely involved a few hours of making calls and that his aunt exaggerated these events to support her narrative.
[35] Peter’s death triggered Judith and her husband to review and update their wills. Judith says that her mother told her she would also like to update her will. Judith deposed:
Mum told me that she would like to up-date her will too. This discussion was on the Sunday after Peter’s death, the 15th of November.
I advised Mum to discuss her wishes with her lawyer as I am not knowledgeable about estates or money or business. On the Monday 16 November, I telephoned Sue Henderson’s office for Mum to let Fenton McFadden know Mum wanted to change her will. I understood FM would contact Mum to make an appointment. I was going to be in Auckland for the next two weeks and my experience with making legal appointments with FM was that it would take some time. I took no further part in the process and left the next day for Hamilton and then Auckland. I did not return to Papamoa until the evening of Friday 20 November, after Peter’s funeral. By then, Mum’s updated will had already been signed. I was surprised that FM made an appointment with Mum so quickly.
[36] The generality of Judith’s statement in her affidavit that she and her husband updated their wills “around the same time” is curious, and can only have been deliberate. Ordinarily, the fact that the Pointons updated their wills would be irrelevant but for the fact that their appointment with Ms Hipkiss of Fenton McFadden was on the morning of the same day that Ms Hipkiss also met with Joan. Ms Hipkiss does not mention this meeting in her affidavit either but she confirmed the date of the meeting with the Pointons in her oral evidence.
[37] In cross-examination, Judith confirmed that she was the one to call Fenton McFadden because she also wanted to make an appointment to update her own will. It was efficient therefore for her to make the call both on their and her mother’s behalf to ask Ms Henderson to set up an appointment.
[38] Andrea Hipkiss, an employed legal assistant at Fenton McFadden, made the appointment to see Joan. She says this was on the instructions of Ms Henderson, her supervising partner. It is not apparent whether Ms Hipkiss had already set up an appointment with Joan when she met with the Pointons or whether the appointment was made afterwards. This bears on the reliability of Judith’s statement that she was unaware of her mother’s appointment and on her “expectation” that Fenton McFadden would take some time to make the arrangements with Joan to take her instructions.
[39] I pause to interpolate that Ms Henderson had acted for Joan and Erl from early 2009. She had acted on the sale of their home at Papamoa and purchase of an occupation licence at Somervale. She also acted in respect of Erl’s estate when he passed away and in the preparation of powers of attorney and Joan’s will after Erl’s death. Ms Henderson had witnessed Joan’s 2011 Will. This was the last time she saw Joan in person. She deposes that she “anticipates” that Joan would have phoned her directly to advise of Peter’s death. Yet there is no file note recording that. Nor does she have direct recall of being told. There is nothing to suggest that this information was passed onto Ms Hipkiss before she took Joan’s will instructions despite its potential materiality.
[40] Judith then travelled to Auckland to be with her daughter who was due to have surgery. Her expectation was that she would be with her daughter for some weeks over her recovery period but, as it transpired, the surgery was cancelled. En route, she paid her respects to her brother in Hamilton.
[41] Ms Hipkiss visited Joan at 2 pm on 17 November 2015 at Somervale. She was not accompanied by anyone. Similarly, Joan was alone.
[42] Ms Hipkiss had not previously met Joan. She says that it is likely that she took with her a paper copy of Joan’s 2011 Will. Based on Ms Hipkiss’ time records, the attendance was for a little over an hour. After taking into account travelling time, it appears that she spent approximately 40 minutes with Joan.
[43] Ms Hipkiss is not a solicitor nor a qualified legal executive. She undertook administrative and clerical work at the firm. She deposes that she has worked in legal
offices for about 40 years, has attended many seminars on will preparation and kept up to date with such matters through material published by the New Zealand Law Society. She also says that she has taken instructions for the preparation of wills many times from clients across the age spectrum.
[44]Ms Hipkiss stated in her affidavit::
I recall the late Mrs Gorringe was wearing a cashmere jersey and was very well groomed. She was delightful company and I recall we spent some time discussing the various items of china and ornament in her room.
…
I did not conduct any specific capacity tests, nor am I aware of any which are recommended. However, I always take the time with elderly clients to satisfy myself with a variety of questions that they have an understanding of the subject being discussed.
On the day in question I have made brief handwritten notes and have then completed a longer file note upon my return to the office.
I do not recall (as a consequence of the passing of time) who told me that Mrs Gorringe’s son Peter had died, but my typed file notes record I was aware of it.
…
Although I do not have any notes on my file, I would have discussed the proposed changes to the will with my supervising partner, Sue Henderson. We had a close working relationship and I would not have appointed her as an executor of the will without expressly discussing the issue with her.
Nothing out of my meeting with Mrs Gorringe gave me cause for concern. She was very lucid and clear on the instructions she was giving to me.
[45] There were only two contemporaneous records of the first attendance produced to the Court. The first was a handwritten note by Ms Hipkiss dated 17 November 2015 which read:
Westpac $687,000.00. 5 Grandchildren – Nicholas Pointon, Michael Pointon, Natalie Pointon, Romiley Chantell Jack (gdaught) Ashley Gorringe - $50,000. Balance to Judith. Judy & Sue as executors. Judy for POAs.
[46]Beside the amount of $687,000.00 is the figure of $180,000 crossed out.
[47] Curiously, a typed transcript of this handwritten note was provided by Fenton McFadden to the plaintiffs’ solicitors during the course of the proceedings. It included
the additional italicised words “rough amount Joan thought her estate worth” in brackets beside the figure of $687,000.00. The correspondence from Ms Henderson refers to the inclusion of “typed transcripts [of the handwritten attendance notes] including explanation where required.” This is despite the fact that in the same letter Ms Henderson has explained that Ms Hipkiss cannot recall any part of the discussion, given the time that has passed since the Will was done. The typed transcript is not a faithful transcript of the handwritten note. There is no sound basis for the addition of the explanatory words.
[48]The second was the timekeeping record in the firm’s system which reads:
Matter WIP 17.11.2015
Client at Somerville retirement village discussed her will instructions with her. She wants her daughter and following discussion also Sue as executors. She wants to leave $50,000 to each of her five grandchildren then the remainder of the estate to her daughter Judith. Evidentially (sic) one of her late son’s children’s husbands (they reside in America) has borrowed money previously from Peter and never paid it back and she was worried he would start pressing for further money. Hence the decision to include a further independent executor - she has funds in Westpac and numerous other investments. We are also to ensure that the Enduring powers of attorney are correct. They are to both appoint Judith. [S]he wants the property one to be redrafted I have said I will prepare the documents and go back either tomorrow or Thursday for her to sign.
[49] Ms Henderson considers that she and Ms Hipkiss would have discussed Joan’s instructions before the 2015 Will was signed but has no independent recall of any discussion. As Ms Henderson is named as co-executor it is expected that she had to approve this change. She says that her understanding was that she was included as an executor in case anything happened to Judith who was unwell. This is not mentioned in Ms Hipkiss’ file note. It does not accord with the handwritten file note of Ms Hipkiss.
[50] Ms Hipkiss attended Joan again on 19 November 2015. Joan executed the Will that day. The will signing was witnessed by Ms Hipkiss and R J Wilson, who did not give evidence. There is no file note relating to that attendance. Materially, this was one day before Peter’s funeral which took place in Hamilton.
[51]In respect of the execution of the 2015 Will, Ms Hipkiss deposed:
I do not have any particular recollection of my meeting with Mrs Gorringe to attend on the execution and witnessing of her Will but will have simply referred to her instructions and the gift which she wished to leave to each of the grandchildren.
[52] In cross examination, Ms Hipkiss was adamant that she would have read the Will to Joan.
[53] Joan was unable to travel to Hamilton for Peter’s funeral. There was a conflict of views about the specific reasons for this. I accept Judith’s evidence that the lack of suitable transport and toileting arrangements meant that it was impractical for Joan to travel to the funeral. Judith’s explanation is plausible. More than this, it accords with my sense of Joan. Joan strikes me as having been a proud woman who would not have wanted the more intimate details shared. It is understandable that the real reasons were not shared more widely among the family, including with Ashley and Romiley.
[54] Judith’s evidence is that she arranged for a friend of Joan’s to sit with her on the day of the funeral. Ms Hosking was critical of Judith during the trial about her failure to disclose the identity of the friend. The plaintiffs had issued interrogatories on 26 March 2021 seeking the name of Joan’s “close friend” who sat with her that afternoon. Judith objected to answer the interrogatory on the basis that its sole object was to ascertain the name of a witness, contrary to the r 8.40(d) of the High Court Rules. In solicitors’ correspondence pre-trial, Judith’s solicitors raised privacy concerns in identifying the potential witness. But, in her oral evidence, Judith gave evidence that the friend was also elderly, suffering from dementia and other medical conditions so it was not appropriate for her to be asked questions about that day. I suspect that, with the benefit of hindsight, had this issue been handled in a more transparent fashion, it may have reduced tensions between the litigating factions rather than exacerbated them.
[55] Judith’s evidence is that she learned what her mother had done with her 2015 Will on her return to Papamoa after the funeral. She deposed:
When I returned after the funeral, I told Mum about the funeral and Natalie’s postponed surgery. Mum told me what she had done with her will. I was surprised how quickly it had happened. She told me she had earlier left half to me and half to Peter, and now she felt she should change it as he had died. She said she did not think it was fair for Romiley and Ashley to have half her
estate and me and my children the other half. She said she wanted the grandchildren to be treated the same. And she wanted to “look after me”.
She also said to me that Romiley was married to a wealthy man, had no need to work and was a beneficiary of Peter’s estate and has no heirs. Likewise, she understood Ashley had a high-paying job, and had no heirs and was also an equal beneficiary of Peter’s estate.
I did discuss things with Mum at her instigation, but at no time did I bully her into changing her will. What she decided was entirely up to her and she was very capable of doing what she wanted.
[56] On 22 November 2015, two days after their father’s funeral, Ashley and Romiley visited Joan at the retirement village. This was a critical interaction. Their evidence as to what transpired is the foundation for the claim of undue influence. I return to it later in this judgment.
The 2016 Will
[57] The 2016 Will is in largely the same terms as the 2015 Will with the significant exception that should Judith not survive Joan, then the residue of the estate after payment of debts, duties, funeral expenses and administration expenses is to be distributed to her son-in-law, Chris. Again, the error in respect of identifying “Michael” as “Michelle” is repeated. There is no mention of bequests of personal effects and no reference to division to her grandchildren in the event that neither Judith nor Chris survived Joan. The 2016 Will was witnessed by two homecare workers. Neither gave evidence.
Circumstances in which 2016 Will signed
[58] Joan spoke by telephone with Ms Henderson at Fenton McFadden on 7 March 2016. Judith denied visiting her mother that day or placing the call to Fenton McFadden on her mother’s behalf. She says that she had no involvement in the call placed to Fenton McFadden but had discussed with her mother her concerns about what would happen to Christopher if Judith died before her mother.
[59] Ms Henderson says there was no indication that anyone else was present during the wide-ranging discussion which took place but she was unable to confirm with any certainty. Her evidence is that:
Joan said she wanted to change her Will because Judith was unwell and she wanted to be sure if Judith died before she did, that things were dealt with in the way Joan wanted.
The only change we were making was adding Chris into the Will if Judith should die. I pointed out to Joan that this was unusual and that usually funds went straight to the grandchildren rather than to a partner.
Joan told me that both Judith and Chris had helped her a lot over the years and she would rather that he inherited the balance of her estate if Judith was dead, but if they both died before Joan then the whole of the estate was to be divided equally between all of the grandchildren, not just Judith’s children.
Joan sounded as concise and “with it” as always. I had no reason to doubt her level of capacity. If we have queries about capacity or concerns about the influence of family members, we will frequently routinely suggest the will deponent obtain a medical assessment which is then held in their Deeds packet.
I recollect the discussion with Joan and believe Joan told me that she would make an appointment to pop into the office and sign the Will.
[60] Ms Henderson produced a handwritten file note of that telephone instruction. Again, when this handwritten note is typed and provided to the plaintiffs’ solicitors in an email dated 10 January 2020, Ms Henderson has added ‘explanatory’ notes. She has added in italics after the reference to “g/kids” the words “current situation if Judy gone then divided equally between all grandchildren”.
[61]The file note (with the explanatory note) reads:
7/3
Tl Joan
If Judy dies – all g/kids (current situation if Judy gone then divided equally between all grandchildren).
Protection of Chris re help/to date.
Closer to their kids BUT if Judy/Chris could spend the lot/rest home care ok. Update Will so if Judy gone then Chris. No g/o if Chris gone too then to revert to all g/kids.
[62] Ms Henderson explained in her oral evidence that this would be the outcome if there was an intestacy and no other living family. It appears this is a misapprehension. As Ms Hosking pointed out to her on cross examination, s 23 of the
Wills Act 2007 would have led to the Pointon children taking the residue had Judith died before Joan.
[63] Ms Henderson had uneven recall about the brief but “quite serious” discussion with Joan on 7 March 2016. She was adamant that Joan was concise in her instructions. Challenged as to whether an assessment could properly be made in a call lasting a few minutes, Ms Henderson responded that “[y]ou can tell quite a lot in a few minutes in terms of how people come across to you, how certain they are of what they’re talking about, how they respond to questions.” She also acknowledged that the change to the 2016 Will was more unusual. She suggested that the more uncommon instruction explains her ability to recall some (but not all) of the content of the discussion with Joan despite the passage of time.5 This is in contrast with Ms Hipkiss’ evidence that the change to the 2016 Will was only minor so there was no need to make an appointment for Joan to see Ms Henderson to sign the 2016 Will.
[64] Ms Henderson expected that Joan would be brought into the Fenton McFadden offices to execute her Will but not necessarily to see her. The 2016 Will was held at reception for that purpose. A post-it note was placed on the 7 March file note which read “Leanne – Will saved to ledger – see email to arrange for her to call and sign.” The firm has no record of who collected the 2016 Will but Judith gave evidence that she collected it on 15 March 2016, the day before it was executed by Joan. She says that the Will was in an envelope; she did not read it but merely took it to her mother as messenger, saw her read it and then sign it in front of the care home staff. Judith then delivered the 2016 Will back to Fenton McFadden.
[65] It is more likely than not that Judith did not read the 2016 Will. Had she done so, she would have picked up that her son’s name had been misspelt as “Michelle” and at least raised this with Ms Henderson or Ms Hipkiss. Instead, this was only raised after Joan’s death during the administration of the Estate.
[66] Ms Henderson’s evidence is that no one employed by Fenton McFadden had any further communication with Joan between the date on which the instructions were given and the date of execution. However, Judith did make contact with the office of
5 Ms Henderson was not able to recall whether they had discussed the size of Joan’s estate.
Fenton McFadden on 11 March 2016. She spoke with a legal assistant who forwarded two questions to Ms Hipkiss – are the shares included in the Will and should Judith pass away before her mother, what happens to her estate? Ms Hipkiss apparently telephoned Judith in response as there is an email from Ms Hipkiss to her colleague indicating that was “sorted”. Ms Hipkiss acknowledged in cross-examination that it would not be usual to speak with anyone but the will-maker in respect of a will.
Events after Joan’s death
[67] Romiley returned to New Zealand for her grandmother’s funeral which took place on 2 November 2019. Ashley was not able to attend so Romiley was the family representative from her side of the family. Not long after, on 5 November 2019 Romiley sought legal advice about her concerns that Joan had been bullied into changing her Will.
[68] After Joan’s death Ms Henderson delegated the handling of the administration of the estate to the firm’s estate clerk. It is apparent however that Ms Henderson spoke with Judith as co-executor from time to time. For instance, Judith told her that “Michael” had been wrongly named in the 2016 Will as “Michelle”. Ms Henderson noted this on the file.
[69] Ms Henderson signed the application for probate with Judith on 21 November 2019. It was sent by the estates clerk to the Wellington High Court on that day. This was the same day that the plaintiffs’ solicitors wrote to Fenton McFadden advising that they had been instructed by the plaintiffs “for efficiency to attend on all matters concerning the distribution of [Joan’s] estate” and requesting a copy of the latest and prior wills. Ms Henderson spoke herself to Judith about this letter to obtain consent to provide the wills. That consent was given.
[70] Ms Henderson describes the letter and request as “routine”. She says it did not alert her to the possibility of a claim against the estate or executors. She states that she has no recall of Judith signalling that Romiley is likely to challenge Joan’s Will since she would not accept the grandchildren being treated equally.
[71] The request for a copy of the wills was not actioned immediately. No explanation was given although Ms Henderson recalls being embarrassed that the firm had not replied when Ms Drought followed up on behalf of the plaintiffs. On 6 December 2019, Ms Henderson received a copy of the plaintiffs’ solicitors’ letter to the High Court seeking to lodge a caveat. She forwarded it to Judith on the same day. On 9 December 2019 the Wellington High Court confirmed to the plaintiffs’ solicitors that the notice of caveat was not accepted for filing as the application for probate had been granted on 5 December 2019.
[72] After the defendants rejected requests by the plaintiffs to recall the grant of probate and exchanges of correspondence seeking disclosure of assets, the plaintiffs commenced this proceeding on 7 July 2020.
Claims
[73] The plaintiffs plead that Judith’s relationship with Joan was one of trust and confidence and the changes made in the 2015 and 2016 Wills arose from Judith’s undue influence. The particulars pleaded under this claim are that Judith:
(a)provided untrue information in regard to Ashley and Romiley.
(b)initiated discussions with Joan regarding changing her Will and actively assisted to ensure the changes were made.
(c)influenced Joan into believing that she was struggling financially and more in need than Ashley and Romiley.
(d)led Joan to believe that the value of her estate was less than half of the actual amount.
(e)coerced Joan into making changes to her Will so that she or her husband were remunerated for their services rendered.
(f)made calls on Joan’s behalf with the solicitor within days of Peter’s death to arrange for changes to Joan’s will.
(g)did not arrange for Joan to see her lawyer in person to sign her Will or receive any legal advice from a qualified lawyer.
(h)took advantage of Joan’s total dependence on her in attending to all her financial matters, errands and personal administration.
[74] The second cause of action pleaded is that Joan lacked testamentary capacity. The particulars pleaded are that Joan did not have sufficient understanding:
(a)of the extent of property being disposed of, believing it to be less than half of its actual value;
(b)that her previous 2011 Will had already made adequate provision for Judith; and
(c)that both the 2015 and 2016 Wills contained errors that Joan would normally have noticed.
[75] Further, it is pleaded that Joan was showing signs of memory loss and confusion in her later years, had only just been informed of her only son’s sudden death, was physically frail and emotionally distraught at the time of signing the 2015 Will.
[76] The third cause of action alleges breach of a fiduciary duty of even handedness thwarting the plaintiffs’ ability to caveat the 2016 Will.
[77] Judith strenuously denies that her mother did not have capacity and the allegation that she unduly influenced her mother. Ms Henderson also denies the assertion of incapacity but does not join in the issue of undue influence. The alleged breach of fiduciary duty is denied.
Issues
[78]These are broadly:6
(a)Did Joan have testamentary capacity when she executed the 2016 Will?
(b)If so, was the 2016 Will procured by Judith through undue influence?
(c)Did Joan have testamentary capacity when she executed the 2015 Will?
(d)If so, was the 2015 will procured by Judith by undue influence?
(e)Did the executors breach fiduciary obligations owed to the plaintiffs?
[79]Each issue raises a number of sub-issues.
Did Joan have Capacity?
Legal principles
[80] The parties largely agree on the relevant principles for assessing testamentary capacity. I set these out from Woodward v Smith:7
(1)Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.
(2)It is essential to the exercise of such a power that a testator:
(i)understands the nature of the act and its effects; and also the extent of the property of which he is disposing;
(ii)is able to comprehend and appreciate the claims to which he ought to give effect;
(iii)be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal
6 Although the claims are pleaded in a different order, the matters relating to capacity inform the question of vulnerability. It therefore makes sense to determine the issues in this order.
7 Woodward v Smith [2009] NZCA 215 at [19], adopting Banks v Goodfellow (1870) LR 5 QB 549 at 565–568; and reaffirmed in Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618.
of it which, if the mind had been sound, would not have been made.
(3)Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But
(i)though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.
(ii)It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.
(4)It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
(5)In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
(6)A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
(7)Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all;
(8)Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.
(9)But if that standard is not met, he will lack capacity.
[81] Ms Hosking submits that the Court of Appeal in Loosley v Powell expanded on that test by adding a further factor in circumstances where there is a terminally ill testator and significant deviation from prior wills.8 That factor is said to be that the
8 Loosley v Powell, above n 7.
Court should be satisfied with the testator’s rationale for deviating from any pattern of disposition in previous wills. I disagree that the Court of Appeal held that this is a separate requirement. The Court did acknowledge that there are numerous authorities where a major change in testamentary disposition supports an inference of incapacity in the absence of an adequate explanation.9 But I read the judgment as making clear that abrupt and significant changes from prior dispositions, and rationale, or lack thereof, behind such changes are merely relevant factors. They are part of the factual matrix, along with all matters indicative of capacity such as available medical assessments and third party observations. The Court said:10
[33] Nevertheless, there is no “requirement” that a Banks v Goodfellow assessment involve an inquiry into why a will-maker has made a significant change at the time the will is executed. It would be wrong to deny capacity only because of a failure by a solicitor to so enquire. There are a number of factors taken into account in assessing capacity as outlined in Banks v Goodfellow; including evidence of lucidity and mental command, available medical assessments, and third party observations of behaviour. A further factor can be, if the will does involve a significant change from earlier wills, the reasons for the change apparent from the factual background, or as expressed by the will-maker. It is self-evident that the nature and reasons for a major change in a deathbed will are part of the relevant factual matrix for assessing capacity.
[82] Where a will is duly executed and appears rational on its face, the court presumes capacity.11 The evidential burden is then on the objector to raise a tenable doubt about capacity. If such a doubt is shown, that burden shifts back to the propounder of the will. The onus must be discharged on the balance of probabilities.
[83] As a separate requirement, the law also requires that the will-maker have knowledge of and approve the contents of his or her will.12 This requirement is conceptually distinct and separate from testamentary capacity and must not be conflated with it.13
9 At [32].
10 At [33].
11 Bishop v O’Dea (1990) 18 FRNZ 492 (CA); Peters v Morris CA 99/85, 19 May 1987 at 25; and
Key v Key [2010] EWHC 408 (Ch), [2010] 1 WLR 2020 at [97].
12 Hoff v Atherton [2004] EWCA Civ 1554 at [33].
13 Drummond and Cordner v Davidson [2016] NZHC 1888 at [172].
[84] Normally, proof of testamentary capacity and due execution will be sufficient to establish knowledge and approval of the contents of the will.14 However, the circumstances surrounding the making of the will may arouse a suspicion requiring the propounder of the will to prove that the will-maker knew and approved the contents of the will.15 When determining whether the will-maker had the requisite knowledge and approval, the Court is entitled to consider all the evidence in order to arrive at the truth, no matter what the basis for challenging the will is.16
[85] The plaintiffs have not pleaded nor asserted that Joan did not have the requisite knowledge or did not approve the contents of either Will in issue.17
[86] Strictly speaking, the first issue is whether Joan had capacity when she signed the 2016 Will. Only if the answer is negative does the 2015 Will come into play. In my assessment however, it is convenient to deal with the question of capacity in respect of both Wills together for two reasons. First, this is the way counsel approached the issues. Secondly, the time between the signing of the two Wills was short — only 4 months – and thirdly, the substantive difference between the Wills became moot when Judith survived Joan. A slightly different analysis arises on the question of undue influence in respect of the two Wills given the nature of the changes although there is also significant overlap.
The Evidence
Preliminary
[87] It is necessary to make some preliminary observations about the state of the evidence. During the trial, Mr Scott addressed me on the late discovery of a further document in Fenton McFadden’s physical client file. The document is a partially completed Enduring Power of Attorney in favour of Judith. It appears to have been signed by Joan on 19 November 2015, the same day on which she executed the 2015 Will. The document has been certified by a legal executive employed by Fenton
14 Re Smith (deceased) [1956] NZLR 593 (SC).
15 Tanner v Public Trustee [1973] 1 NZLR 68 (CA).
16 Note 10 at [173] citing Re Heremia, McGarvey v Temo, HC Rotorua CIV-2006-463-69 at [90]- [91].
17 There can be problems evidentially with running undue influence as an alternative to want of knowledge and approval. See Reeves v Drew [2022] EWHC 159 (Ch) at [416].
McFadden who certifies (twice) that the document was signed by the donor in her presence. A line is hand drawn across the face of the document and the words “Not needed” written by hand. The document has not been signed by Judith as attorney, hence it is incomplete.
[88] Two issues emerge. First, why this was only produced at the hearing rather than during discovery. Secondly, and more materially, the circumstances in which this document was signed and how the legal executive came to certify the document when there is no evidence that she attended on Joan.
[89] I accept that Mr Scott communicated the existence of this document as soon as he became aware of it. No criticism can be levelled at him. The circumstances were explained by Ms Henderson. They are that file management at her firm changed from the use of physical files to electronically stored files. During the transition, paper- based files were converted to electronic files once the file was closed. When the Will file was sought by the plaintiffs, Ms Henderson reviewed the “scanned file” only. She did not check this against the paper-based file. The paper-based file was only recovered at the request of Mr Scott because of his concern at the legibility of the scanned material. It took some time to locate. Ms Henderson received the file in the afternoon on the Friday before trial. It was only then that the incomplete Power of Attorney was located in the file sleeve. It had not been scanned at the time of conversion, possibly because it was not the prevailing Power of Attorney and was incomplete.
[90] It is regrettable that more care was not taken in the course of discovery so that this was communicated to the plaintiffs much earlier. The result is a gap in the evidence and a frankly unsatisfactory explanation of the circumstances in which Joan signed the Power of Attorney. Counsel made inquiries of the legal executive who certified Joan’s signature. Unsurprisingly, she had no recollection of the circumstances. Ms Hipkiss, the legal assistant who did attend on Joan, was also cross-examined on the issue. She confirmed that she went by herself to see Joan on 19 November 2015. The exchange with Ms Hosking was:
Q: And [Joan] signs it seems two documents? She signs her Will? A: Oh, she signs her Will, definitely yep.
Q: And she also signs that power of attorney, doesn’t she?
A: Well I’m not sure because that’s not my witness there, so I don’t know.
I can’t comment on that I’m sorry.
[91] More concerningly, Ms Hipkiss was equivocal when asked whether it was possible that Joan signed the Power of Attorney document at the same time as the 2015 Will and the legal executive signed and certified the document when Ms Hipkiss returned to the office.
[92] In the circumstances, and in the absence of evidence from the legal executive concerned, I am not able to draw any firm conclusions other than it is most unlikely that the legal executive attended Joan on that day and certainly did not attend with Ms Hipkiss. I note that the legal executive was not a witness for the 2015 Will which would have been an obvious step had she attended. This episode lends weight to my assessment that there was an inadequate degree of supervision in respect of the attendances on Joan. Had more appropriate steps been taken, this case would have been more focussed, if pursued at all. It is fortunate that this issue has not proved more material to my analysis in the light of the conclusions I have reached.
[93] The second observation I make is that much of the evidence comprises submission, opinion or is plainly argumentative and objectionable but was received without objection. Romiley’s evidence, for instance, forensically analyses documents discovered in the proceeding, adding commentary and reaching conclusions which have the character of submission. She also recounts interactions with her aunt to weave a narrative in which her aunt connived to ensure that Joan’s estate passed to the Pointon side of the family. She portrays Joan’s solicitors, Fenton McFadden as, if not complicit in, at least aware of Judith’s conflicted motives and the warning signs. She also records that she does not accept the explanations given by her aunt that her spending from Joan’s bank accounts was approved by Joan. To the extent that any evidence offers opinions or consists of conclusory statements based on analysis of the contemporaneous documents, I put it to one side.
[94] It is also apparent from the approach to the evidence that Ashley and Romiley’s geographical separation from the family in New Zealand meant that they necessarily lacked insight into their grandmother’s final few years and the relationship between Joan and Judith. After the discussion with their grandmother which sparked this litigation, the plaintiffs were indelibly influenced by their honestly held belief that Joan was bullied into making changes to her Wills. That this is their honest belief does not mean it is so.
Evidence as to capacity
[95] The plaintiffs argue there is a tenable basis that Joan lacked capacity when she executed the 2016 and 2015 Wills. They rely on:
(a)Judith’s own accounts of Joan’s increasing confusion and memory loss;
(b)medical records establishing Joan’s serious illness in the months prior to signing the Wills;
(c)Joan’s inherent frailty as a result of Joan’s her age along with her physical impairments;
(d)expert evidence from Dr Malone that dementia increases exponentially in women over the age of 85 and is undetected in a rest home setting in 62 per cent of cases;
(e)that Joan was labouring under an incorrect belief that Romiley’s husband had borrowed money and not paid it back;
(f)Joan’s lack of knowledge of the full extent of her estate; and
(g)Joan’s shock and grief at the death of her son;
[96] Ms Hosking’s closing submissions suggested that the change from the pattern of previous dispositions was enough to raise a tenable doubt as to capacity.
[97] The starting point is that no capacity testing was undertaken at the relevant time. In the light of Joan’s advanced age, this is surprising, indeed remiss. It is possibly explained in part by the fact that Ms Hipkiss was not legally qualified. She confirmed in her evidence, “I did not conduct any specific capacity tests, nor am I aware of any which are recommended”. The apparent lack of adequate oversight or supervision from a qualified lawyer is regrettable.
[98] In the context of this case, I consider that it falls well short of a ‘“gold standard” approach. The interactions that Ms Hipkiss had with Joan were notably slim, as evidenced by the time recording. There was insufficient probing of Joan’s intentions, and scant file noting of the instructions, the rationale for Joan’s instructions and the execution process. At times, Ms Hipkiss sought to extrapolate from the circumstances to proffer an opinion on why Joan changed her will. An example is when she said that Joan was wanting to make a change because of the death of her son. But there was no note of this and Ms Hipkiss was unsure how she learned of Peter Gorringe’s death and who told her.
[99] It does not however follow that failure to follow the “gold standard” demonstrates invalidity of a will. But it would have at least minimised the scope of this dispute for the benefit of all concerned.
[100] After review of all the evidence, my assessment is that there is no cogent evidence of increasing confusion and memory loss on Joan’s part sufficient to shift the onus to the defendants. Had it shifted, or if I am wrong that no tenable issue is raised, I am satisfied that the onus is discharged. I set out my reasons for reaching that conclusion.
Contemporaneous communications about Joan
[101] First, Judith’s reports to the family do not support the plaintiffs’ case when seen in context. On 3 June 2013, Peter emailed Romiley and Ashley. He says that “[Judith] says [Joan’s] memory going downhill more quickly now”. This is a hearsay account which cannot be tested. At most, it speaks only to the beginning of a decline in memory. Memory and cognition are not synonymous. A decline in short-term memory is common in the elderly but does not necessarily demonstrate cognitive or
capacity decline according to the medical evidence. I do not take much if anything from this communication even if it accurately reports something Judith observed.
[102] On 11 August 2015, Judith emailed Romiley to pass on thanks from Joan for the birthday card. The email says of Joan that “[s]he gets very tired these days and can’t follow conversations with larger groups, so kept it small and she enjoyed that”. Romiley concludes that her grandmother’s ability to follow conversations is diminished by this time. She makes no reference to the qualifying words “with larger groups”. The inability to follow group conversation can be a product of very many factors including hearing loss. It is quite a different thing to being unable to converse one to one. Judith explained in her evidence that Joan had two hearing aids without an adjustment which compensates for background noise. This explains the context.
[103] Judith emailed Romiley on 6 March 2016. This was the day before the 2016 Will instructions to Ms Henderson. Romiley’s affidavit quotes selectively from this email. She states that the email records that “[Joan’s] spelling gets muddled … otherwise she makes a good go of it”. In fact, the email reads:
[Her] spelling gets muddled sometimes … [she] makes a good go of it. She still manages the Herald Code Cracker most days so that’s pretty good!
[104] None of the experts refer to any correlation between muddled spelling and cognitive decline.
[105] Other email communications in which Judith described Joan as “muddled now” with little recall from one day to the next were written in late September 2016 and after. These, and other emails which the plaintiffs rely on, are sufficiently distanced from the time of signing the Wills that it would be unsafe to treat these observations as representative of Joan’s condition some six months earlier.18
[106] Other material relied on by the plaintiffs suffers from the same inherent weakness. Romiley portrays her grandmother as socially isolated and withdrawn in
18 For example, an email from Judith to Romiley on 14 August 2017 in which she said that Joan’s memory has “declined quite significantly”. This was two years after the will-making. It could be argued that it supports Judith’s perspective. It would be unlikely to use this description if Joan’s capacity was as diminished two years earlier as the Plaintiffs maintain. A further example is an email on 3 February 2018.
her later years of life without being specific as to timeframes. One of the documents she draws on for this assertion is a Summary Report for Care Plan/Support Services Following InterRal (sic) Assessment on 22 May 2017. Yet this is far too long after the relevant time to have any bearing on the question before the Court. I note too that the report says that Joan was “becoming” isolated and “withdrawing”. It does not conclude that she was “isolated” and “withdrawn”.
[107] None of these communications individually or collectively support the plaintiffs’ case as to incapacity.
Medical evidence
[108] Secondly, the medical records which at various times refer to Joan presenting with confusion have a satisfactory explanation. They do not show a chronic issue, but rather an acute issue at times of illness. The most material was in December 2014. The reference is in hospital discharge notes after an acute appendectomy. They relate to the initial presentation when Joan was seriously unwell and consequently distressed. Since they relate to a period of serious unwellness from which Joan recovered, the notes do not say much if anything about Joan’s usual state. This is supported by the notes of Joan’s general practitioner, Dr Coster. On 26 November 2014, when Joan was unwell, he commented that Joan was “confused (not normally so). He also recorded that despite the confusion, Joan was “lucid enough to greet me and answer questions appropriately”. 19
[109] There is no doubt that Joan was physically frail. But there is no persuasive evidence presented that, in Joan’s case, her physical ailments signalled loss of mental acuity.
[110] The plaintiffs led evidence from an expert, Dr Malone, who was called for cross-examination. Dr Malone is a consultant psychiatrist and psychogeriatrician of many years’ experience. He had never met Joan. He conducted a retrospective paper based assessment of Joan’s capacity to make a will in the relevant period and as to her
19 Dr Coster gave evidence that the elderly are more prone to “delirium” when physically ill and that delirium is an acute confusion as opposed to a chronic confusion which is dementia. Acute confusion normally recovers fully, whereas chronic confusion continues.
vulnerability to undue influence. Dr Malone’s expert report was served following a late application after the close of pleadings.
[111] The Court of Appeal in Green commented that the opinions of expert witnesses who did not know the will-maker and who make assessments after their death must be treated with caution.20 This must be so particularly where it is necessary to rely on the observations of others recorded in communications in order to form any expert opinion.
[112] The high water mark of Dr Malone’s evidence is that at the time of the making of the new wills (collectively) there is evidence of impairment to some degree, and “[i]n the time after the execution of the new wills in 2015 and 2016, there is evidence of continued deterioration in Joan’s cognitive function and memory”. He states:
Due to the lack of information, such as a medical assessment and measure of Joan’s cognitive function and/or documentation outlining if Joan fulfilled the Banks v Goodfellow testamentary criteria, I am not able to determine Joan’s testamentary capacity on 19/11/15. … there were grounds to doubt her testamentary capacity, this includes her lack of understanding the true extent of her estate.
…
Considering the available information, in my opinion, at the time of the execution of the 19/11/15 will, Joan’s cognitive function was impaired to some degree. It is difficult to be certain as to the severity of her cognitive impairment due to a lack of a contemporaneous medical assessment of her cognitive function and capacity … In my opinion the description of Joan in September 2016 is strongly suggestive of at least moderate memory impairment and a probable dementia syndrome.
In my opinion, at the time of executing the 19/11/15 [sic] the evidence indicates Joan was suffering with a degree of memory impairment and probably in the early stages of a dementia syndrome. Any cognitive impairment in late 2015 would have been exacerbated by the acute psychological distress caused by her son’s sudden and unexpected death and Joan not being able to attend the funeral. In support of the opinion that in November 2015 Joan was suffering with a degree of cognitive impairment, is the documentation of Joan not knowing the full extent of her estate. The figure of $687,000.00 is approximately half of her estate in November 2015.
[113] In cross-examination, Dr Malone affirmed his inability to determine whether Joan had capacity at the relevant time. He stated, “I haven’t actually said she had a
20 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [94].
dementia when she changed her Wills, I’ve said that comes later”. He also confirmed that the fact that Joan was acutely confused with delirium a year before signing the 2015 Will does not mean that she did not have capacity in November 2015. In terms of the relationship between memory decline and cognitive capacity, there was the following exchange in response to a question from the Court:
Q: …Can one have a decline in memory but nonetheless still be cognitively capable of making decisions?
A: So you can have a decline in memory only and, therefore, not have dementia. But the question would be does, is that decline in memory at the point where it starts to affect someone’s capacity? And when Mrs Gorringe made her Will in November 2015 it appears that she didn’t really have an understanding of the extent of her estate and her estimate of her estate was half of what her estate was and there is a good, there’s a strong possibility that her inability to recall the extent of her estate was due to significant impairment of her memory, which lines up with the accounts in the years prior that her memory was failing.
[114] I have difficulty with the evidential foundation for this proposition that Joan’s estimate of her estate was half of what her estate was. As far as I can tell from the bank statements produced, as at 4 November 2015, Joan had a total of $1,239.521.05 in her term deposit account with Westpac. There are also some shares. The only evidence of value is on gathering of the estate at which time the shares were cashed in for $70,000. Ms Hipkiss’ file note and attendance record states that Joan referred to funds at Westpac and “numerous other investments” which could mean the shares. There are references to $689,000.00 with an arrow linking to Westpac and $180,000.00 (crossed out) in Ms Hipkiss’ handwritten attendance note. Below that are references to $50,000.00 in respect of each of the five grandchildren. Ms Hosking submits that this indicates that Joan significantly underestimated the extent of her estate. I am not satisfied of this on the basis of Ms Hipkiss’ slim attendance note.
[115] I also consider that knowledge of the property does not have to go beyond a general knowledge of the state of the property and what it consists of. It does not need to be precise.21 I am not satisfied that Joan’s recollection of her assets is plainly defective so as to suggest incapacity.
21 Re Rhodes HC Wellington CP25/02, 7 March 2002.
[116] Overall, Dr Malone’s evidence does not substantively support the plaintiffs’ case. This is particularly so when balanced against the evidence of Dr Newburn.
[117] Dr Newburn is a neuropsychiatrist who has also practiced in the field for many years. However, his first affidavit was made as a friend of the family for over 30 years rather than as an expert. He had never seen Joan clinically. His impressions of Joan over the time that he knew her was as a feisty woman with strong opinions. The last time he saw Joan was at the celebration for her 100th birthday. Of that occasion, he said:
When seen for the last time at her 100th birthday celebration, she immediately recognised me and my wife, although we had not seen her for perhaps three years before that. She knew our names and put into context our association with her via her daughter and son-in-law. Furthermore, she recalled our children and was able to ask questions appropriately about them. She was clearly in that interaction not a woman who had any significant cognitive disturbance. Indeed, my wife and I both commented on how wonderfully she was presenting at her 100th birthday.
[118] The social context in which Dr Newburn last interacted with Joan means that his impression has some limitations. But, against that, the fact of his professional expertise means his observation has heft. It is supported by his detailed description of the interaction which clearly made an impression on him at the time.
[119] Dr Newburn made a second affidavit once Dr Malone’s evidence was filed late. He too undertook a retrospective paper-based assessment of Joan’s capacity to make a Will in 2015 and 2016. He also opined on Joan’s vulnerability to possible undue influence. Dr Newburn concluded from his review that there is nothing that suggests that Joan’s ability to make a Will does not meet the test for capacity nor anything to suggest that she is a person who would have been subject to any vulnerability. He points to references to Joan continuing to do Code Cracker and Sudoku puzzles as a sign of reasonable cognitive function and opines that statistical analyses of dementia rates in populations are not applicable to any one individual. Further he considers that reluctance to go on outings a consequence of the need to get to a toilet quickly as a sign of good cognitive function, being evidence of knowledge of bodily dysfunction which is understandably distressing to an individual.
[120] Dr Newburn was acutely conscious that his personal relationship with Joan and the family would be the subject of challenge by Ms Hosking. In short, he front-footed the inevitable criticism of his lack of independence.
[121] As the Court of Appeal observed in Prattley Enterprises v Vero Insurance NZ:22
It is necessary to distinguish impartiality – the primary objective of the [Code of Conduct of Experts] – from independence. An expert witness need not be independent of the party by whom the expert is briefed. Any potential conflict of interest is ordinarily treated as a matter of weight. That is so because independence goes to the relationship between the expert and the party engaging the witness, while impartiality is a behavioural quality, signifying an attitude of neutrality as between the parties. An expert witness who lacks independence may nonetheless behave impartially.
(footnotes omitted)
[122] I take these factors on board. I make the same observation about the caution to be exercised in respect of retrospective reviews notwithstanding that Dr Newburn had the unusual advantage of seeing Joan in a social setting three years after the 2016 Will. (It is even possible that the social interaction may have unconsciously influenced his professional opinion.) Had my assessment been finely balanced, I would not have relied on Dr Newman’s evidence as tipping the balance. But in my view, the matter is not finely balanced.
[123] The evidence of Joan’s GP, Dr Coster, is particularly informative. His clinical notes on 24 November 2015 record:
RH visit: Gen keeping well. No major issues. Swallow much improved on PPI. Unfortunately [illegible overwritten note] continue ppi long term.23
[124]The notes for the 28 January 2016 visit record:
Repeat medication prescribed. Seen briefly as asked to by daughter. Crusted lesion neck. Not healing. Looks like SCC. Given health issues treat with effudex in winter.
22 Prattley Enterprises v Vero Insurance New Zealand Ltd [2016] NZCA 67, [2016] 2 NZLR 750 at [99].
23 PPI refers to proton pump inhibitor being a common medication for gastric issues.
[125] While Dr Coster was unable to comment on her capacity in a legal sense having never assessed her capacity, he was clear that he had no concerns about her cognition. He explained these are different concepts. He also stated that people with mild memory impairment can still have capacity and confirmed that he never noticed any significant memory impairment. This is consistent with the expert evidence presented.
[126]He states:
At the time she changed her will in November 2015 there were no concerns about Joan’s memory or cognition. She had bad arthritis in her knee and had a couple of bowel complaints, but was otherwise physically well.
She was at the time in a serviced apartment and her carers also at the time in their discussions with me had no concerns around her memory or cognition.
…
Joan was seen at Tauranga Hospital in the year prior a couple of times and again no concern was raised around her memory or cognition.
Up to the time of her passing in October 2019, Joan remained to my experience sharp cognitively and was able to participate fully in discussions around her medical care.
[127]There was also the following exchange with the Court:
Q: And how did Mrs Gorringe compare to other elderly people in their late nineties in your experience?
A: She was, I liked Joan, she had a bit of something to her. She had a real spark and she knew what she wanted and I think the nursing staff would say that. Yeas, she was, she had quite a sensible attitude to life. I would be reading the newspaper, could talk sport, so those things I appreciated.
Q: And so compared with others at her age?
A: Yeah, I mean I think from 90 there’s a huge variation. But a lot of 90 year olds generally physically I think start slowing up, so you don’t – they’re no longer playing golf or around that 90 there’s quite a drop off. But a lot of them are still independent. I go to Ocean Shores’ clinic, which is not a rest home it’s more a retirement village and there’s a lot there on 90 who will be emailing and doing stuff like that, so. But then there’s others who, you know, you really can see the wheels starting to fall off.
Q: And if someone needs care or assistance, …, for medicines to be administered, what does that say about their state of being?
A: It can mean many things. From my recollection in [Joan’s] case that was because she was actually starting to be considered unsafe to mobilise. So the medicines were kept in a cupboard in her apartment and there were
concerns that with her arthritis in the knee, if she was very, um, it would give out at times and so the concern was more about falling in her case, as I recall.
[128] Dr Coster confirmed that he was speaking about Joan in the very late stages of her life in 2018 and 2019, well after the relevant period.
Other evidence relied on by Plaintiffs
[129] The changes to the Wills from prior dispositions are not of themselves indicative of arbitrariness or incapacity. In 2011 Joan made changes to her existing will on the death of her husband. The 2015 Will came about after the death of Joan’s son, one of the two principal beneficiaries of Joan’s earlier wills. It is understandable that Peter’s death brought the earlier per stirpes gift over to his children into sharp focus when that had not been previously. It is also understandable that Joan’s focus turned to her daughter and son-in-law who had lived in close association with Joan for decades and who provided extensive support.
[130] The plaintiffs’ reliance on Joan’s inability to attend Peter’s funeral in November 2015 is also misplaced for the reasons already canvassed.24
[131] As for the appointment of an independent executor, Ms Hipkiss recorded Joan’s concern about what she understood to be an unpaid loan from Peter to Romiley’s husband and that he may “press for more money”. The circumstances in which Joan came to learn of this were explored in the evidence. Ashley and Romiley suggest that Judith misrepresented the situation after witnessing Ashley’s surprise at discovering a loan to Romiley (rather than her husband) amongst his father’s papers. Ms Hosking submitted that this was an indication of calumny — the making of false statements about someone to damage reputation in the hope that the will-maker will reduce the provision he or she would otherwise give them.25
[132] To my mind, this is a red herring on the question of capacity. I consider that those notes relate to the rationale for the selection of an independent executor rather than for the changes to the 2011 Will.
24 Refer [52] above.
25 See Anthony Grant “Fraudulent calumny: an emerging cause of action” LawNews (New Zealand, 26 February 2021) at 5 referring to Re Edwards [2007] WTLR 1387.
[133] The change to the 2016 Will was unusual in favouring her son-in-law should Judith die before Joan but is explicable if viewed as gratitude for all that Judy and Chris did for Joan. The fact that Ms Henderson spoke with Joan about the proposed changes and received an explanation for them informs my analysis.
[134] I accept that the closeness of the Pointon side of the family with Joan, because of their physical proximity and no less because of their close involvement in her life and care of Joan rationally explains Joan’s wishes.
[135] For the sake of completeness, I refer to the typographical error in both the 2015 and 2016 Wills. In each, the name of Joan’s grandson, Michael, is misspelt as Michelle. Had this been Joan’s instruction to Ms Hipkiss, then it may well have been an indicia of loss of acuity. However, it is clear from Ms Hipkiss’ handwritten attendance note that Joan’s instruction correctly named her grandson. It was the will drafter who made the error. If Joan read over the 2015 Will and 2016 Will herself, rather than having it read or explained to her, she missed this spelling error.26 The explanation that she “sometimes” gets her spelling muddled is a possible reason. It is not sufficient in all the circumstances to raise a tenable doubt as to capacity.
Evidence suggesting Joan had capacity
[136] There are also many factors which collectively tend to show that Joan did in fact have capacity at the time of signing the 2015 and 2016 Wills.
[137] First, neither Ashley nor Romiley rely on any interaction with their grandmother suggesting diminished capacity. While Romiley stated emphatically in her evidence that Joan was unable to phone “out” and relied on carers and Judith to make telephone calls, this was just as emphatically refuted by Judith. Romiley’s statement on this aspect was an example of a conclusory statement which, on exploration, lacked foundation. The exchange with Mr Catran on cross examination was:
Q: Mrs Henderson has said that it was Joan who called her about the 2016 Will, so you’re not in a position to say that Joan couldn’t call out? You have said it, but you’re not in a position to say it are you?
26 On this aspect, the dearth of evidence as to the process of will signing is unhelpful.
[167] The fact that Romiley and Ashley expressed concerns to Mr Clews and Mr Walter at the time corroborates that something Joan said caused the plaintiffs grave concerns. It does not corroborate exactly what Joan said or its import. Neither can it be probative of the allegations themselves. But these discussions with Messrs Clews and Walter are relied on to explain why the plaintiffs took no steps to intervene or “protect” their grandmother.
[168] Romiley’s evidence is that the lawyers expressed concern about the comments but also advised that there was little that Ashley and she could do while her grandmother was alive. That may be a curious stance if told that a will-maker had said they were bullied to make a will. It is more explicable if all that was communicated was a fear of a will change to their detriment due to ‘pressure’ rather than the more unsettling bullying allegation. The former is a more general and unsubstantiated opinion. The latter, a more serious issue.
[169] Mr Clews states in his affidavit that Romiley and Ashley expressed clear concern over the future of their grandmother’s estate. He stated
Romiley was clear in expressing the pressure being put upon Joan Gorringe by Judith Pointon her daughter. She approached the topic on several occasions and was very concerned about what could be done.
Although I saw no testamentary documents in relation to Joan Gorringe’s Estate Romiley made it clear that their Aunt Judith Pointon was talking about the fact that there were two Gorringe Grandchildren and three Pointon Grandchildren; and that Joan Gorringe’s Estate should be divided equally among the five children of she and Peter.
Without having seen any testamentary documents I was just a willing “ear” to their concerns, but it was very clear to me that they held very deep fears about Joan Gorringe’s Will being changed to their detriment and against their grandmother’s true wishes.
[170] Mr Clews does not expressly refer to being told of the precise words said to have been used by Joan to Ashley and Romiley. He told them that nothing could be done while Joan was still alive. He deposes that he had a very clear recollection of the serious concerns they had (although his affidavit was sworn in July 2020). Given that clear recollection, had he been expressly told of the particulars of the discussions between the plaintiffs and Joan, I consider that he would have mentioned them directly. It follows that when Mr Clews said nothing could be done, he was talking expressly about sighting the will rather than that nothing could be done to protect Joan or to investigate the allegation.
[171] Mr Walter’s signed statement, which I allowed to be put in evidence for limited purposes, is more explicit. Given that Mr Walter was a retired solicitor, and cognisant of the import of a statement, I can reasonably assume that he would have taken care in its preparation, though it was not sworn. The statement records:
Romiley and Ashley expressed some concern that their grandmother Joan Gorringe had changed her will shortly after Peter’s death. Romiley stated that her grandmother had told her that she felt “bullied” into the changes. I was not a party to that discussion between Romiley and her grandmother but I was informed of the changes in general terms fairly soon (probably several weeks or months) after Peter’s death.
…Romiley and Ashley were keen to clarify the contents of the will but my advice was that of course they were not entitled to see the will, certainly not while Mrs Joan Gorringe was alive. Also, Romiley and Ashley were adamant that they did not wish to upset their grandmother by raising issues with her.
[172] Based on this evidence, neither lawyer to whom Ashley and Romiley turned discussed steps that might be taken to ensure their grandmother’s protection should
the accusation be made out or even to investigate the accusation. Mr Clews appears not to have been told. Mr Walters was told the plaintiffs did not wish to upset their grandmother. Materially, both solicitors commented to the plaintiffs that people regularly change their wills.
[173] Thus, I have concluded that the evidence of Mr Clews and Mr Walters is limited corroboration and, in my assessment, does not adequately explain why neither Romiley nor Ashley took further steps at the time.
[174] The nub of this case is whether Joan’s statement to Romiley and Ashley is reliable evidence of undue influence. What did Joan mean? There is more than one possibility. The first is that the 2015 Will truly did not reflect her wishes and Judith had suborned her independent will.
[175] Factors supporting the first possibility are: first, the haste in making changes to her Will so quickly after her son’s death. Secondly, dependence on Judith’s emotional support with concomitant power to overbear Joan’s will combined with Judith’s control over Joan’s finances once Peter died. Thirdly, Judith’s “involvement” in the 2016 Will which favoured her husband.
[176] On balance, I take little from the haste with which Joan instructed Fenton McFadden and the speed with which she executed a new Will. It is natural not to be dilatory at the age of 97 if one wants to change a will. The death of her son would have understandably spurred her to refocus her testamentary wishes. There had clearly been discussion with Judith on the subject of wills after Judith witnessed Ashley trying to locate his father’s will. Both Romiley and Ashley downplayed this as an explanation constructed by Judith to justify the changes to Joan’s Will. However, I accept that Judith’s perception, rightly or wrongly, was that locating Peter’s Will was an added strain and explains why the subject of wills came up with Joan.
[177] Judith was not with her mother when the will instructions were given. Nor was she with her on signing of the will. She was in Auckland. Thus, Joan had an opportunity to raise the issue with Ms Hipkiss if she felt any pressure to make changes
to her Will or to ask to speak with Ms Henderson with whom she had more of a relationship.
[178] Moreover, if Joan regretted making the changes, there were opportunities to rectify this, culminating in Joan’s discussion with Ms Henderson before the 2016 Will change. Judith also gave evidence that she specifically discussed with her mother the “uneven” split in her Will just months before her death. This was said to be at Ms Henderson’s suggestion but that her mother was steadfast in wanting the division in the 2016 Will to remain.38
[179] A second possibility is that Joan was defensive about the effect of her new testamentary wishes on Ashley and Romiley and sought to deflect responsibility with an off-hand statement about Judith. That however begs the question why she would have mentioned her Will at all.
[180] No-one can really know what Joan meant when she spoke with Ashley and Romiley about her Will. I have concluded that the statements are sufficiently equivocal such that they do not of themselves establish undue influence when weighed against other evidence There are three reasons. First, the idea that Joan felt that her Will did not reflect her true wishes and yet did nothing about it or mention that to anyone else does not sit easily with the evidence given of Joan’s character and personality. Secondly, the application of pressure by Judith overbearing Joan’s free will is inconsistent with the descriptions by care staff and others of Judith’s care of and relationship with her mother while she lived at Somervale, and Judith’s character as I assessed it while she gave evidence. There is no evidence of controlling behaviour from anyone who knew Joan and Judith and could have expected to have some insight. At most, I consider that Joan felt the weight of her ties of affection to Judith, deep appreciation for all that Judith and her husband did for her for many years and concern about Judith and Christopher’s financial future. Thirdly, I consider that the underlying reason why Romiley and Ashley did not make further investigation at the time is because they too felt the statements in their context were more equivocal than the bare words suggest.
38 Arguably, by this time, the question of capacity may have been more acute due to Joan’s bouts of ill-health.
Spending from Joan’s bank account
[181] Ms Hosking sought to make much of what she describes as a significant uptick in spending on Joan’s accounts, attributable she says to Judith using that account for her own purposes in the last few years of Joan’s life. Judith was vigorously cross examined about the nature of that spending. These matters were not germane to the pleaded case except that they formed the primary basis for Ms Hosking’s submission that Judith was an unreliable witness. Ms Hosking characterised Judith’s answers as inconsistent and lacking credibility. She submitted that Judith’s obfuscation during the discovery phase of the case tells against her reliability as a witness on all matters in issue in the trial.
[182] After hearing and seeing Judith’s evidence, I am satisfied that the spending from Joan’s account was with her mother’s blessing and at Joan’s suggestion. Judith was not relying on the POA. She was not required to document the level of spending as she would have had to do if utilising the powers under a POA. The spending was not unusual nor of such a level indicative of financial abuse. The frequency, nature and amount of spending was more consistent with appreciation and gratitude for all that Judith did for Joan. Judith did discuss with her mother the financial pressure that she and her husband were under. She describes these conversations around money and day-to-day spending as normal topics for them and that her mother wanted to help to take pressure off.
[183] Evidence was given about Judith converting Joan’s cheque account to a joint account. On the eve of Joan’s death, Judith also transferred $5,000 from Joan’s account to her own account. Ms Hosking submits that this transfer only came to light after the plaintiffs pressed for further discovery by the executors. She also submits that the sum was never paid back into the Estate. Mrs Pointon’s explanation in her affidavit is:[230 -235]
The date of this withdrawal was 23 October 2019, the day before Mum died, and when it was clear that she was dying. I was concerned that Mum’s bank account could be frozen within days of her death being notified and that the next Metlifecare bill of $5,500 odd was due in a week’s time. Other bills like Spark may also be due. I was thinking that I would need to have some money available to cover these contingencies. This was a matter Mum and I had
discussed some time before in the event of her dying suddenly, so I could continue to meet her bill payments. This was a very stressful time for me. I had been with Mum for several days, and I was lacking sleep, and feeling pretty strung out. I was just focussed on Mum’s care, and what I needed to do to take care of things.
Making Mum’s cheque account joint in 2019 was only for the purposes of being able to take care of Mum’s business after her death. I recall this had been suggested by Mum. I was not aware of the fact that a joint account gave me survivorship rights. Because of that I did not realise that the account would not actually be closed very soon after Mum’s death and the Metlifecare bill was paid out of that account.
I did not think of the money in that account as mine, but as Mum’s money, and therefore I thought that it would naturally be part of the estate, and part of the probate process. I expected Fenton McFadden would take care of that. I realise now that we should have paid the $5,000 back into the account.
It came as a great surprise to me when Chris and I went to our bank to raise a loan to fight this legal case and were told by a bemused bank officer, “What do you need a loan for? You have got $140,000 sitting in your account.”
…
Since Mum’s death, I have not operated the account using my survivorship interest. When I realised Fenton McFadden was not aware of this account for inclusion in the estate’s Statement of Assets and Liabilities, I willingly returned the funds from this account to the estate.
[184] The plaintiffs criticise Fenton McFadden for dealing with Judith as if the POA had been invoked and acting in Judith’s interest rather than Joan’s interest. The examples they give include advice on setting up a funeral trust account, making arrangements to have Joan’s shareholdings transferred to Judith on her death, inquiries Judith made of Fenton McFadden in August 2017, advice on how to protect Joan’s ability to pay for the increased costs of her care once she moved into hospital level care at Somervale and advice in September 2017 about cash gifts, thresholds and the possible consequences. In my assessment, none of these criticisms bear on the question of undue influence. They are straightforward questions families seek advice on when elderly parents reach the end of their life.
[185] Judith gave evidence that she told Ms Henderson in April 2019 that Romiley might contest Joan’s will as she would not agree that the grandchildren should be
treated the same. Ms Henderson then told her that she was happy to discuss this with Joan but apparently left it to Judith raise the issue with her mother. Judith’s evidence is that she spoke with her mother, explained her concerns and suggested she could make more provision for Peter’s children but Joan was steadfast that she did not want to make changes. She said that she wanted the five grandchildren to be treated the same and Judith and her husband were to receive the remainder of the estate because she was her daughter, her only next of kin and had looked after her. Ms Henderson did not recall this conversation.
[186] At first blush, the April conversation with Ms Henderson is inconsistent with Judith’s insistence that her first awareness of a claim to undue influence was on 6 December 2019 when Fenton McFadden received an email from the plaintiffs’ solicitors. Although Judith was subjected to vigorous and searching cross examination by Ms Hosking, this particular aspect was not explored. It is conceivable that in April Judith was concerned only about a challenge based on as some form of moral obligation to all family members and it would not have occurred to her that the allegation would be one of her coercing her mother to favour her in the Will.
[187] Despite the strong challenge by Ms Hosking, I have concluded that Judith’s explanation around the use of bank accounts, and the misapprehension about the effect of joint ownership, is a truthful account.
Conclusion as to undue influence
[188] I accept that Judith’s relationship with Joan was one of trust and confidence. Joan’s physical frailty and age, combined with the closeness of her relationship with her daughter (a point made many times by Judith in her oral evidence) satisfies me of this. The fact that Joan appointed Judith as her attorney on matters of care and welfare and property further confirms my conclusion.
[189] I also find that the contents of the 2016 Will call for explanation based on Ms Henderson’s evidence that leaving the residue to Joan’s son-in-law, Christopher if Judith died before Joan, was a less common approach. This is not the same thing
however as finding that the 2016 Will was irrational on its face. I reject the proposition that the 2015 Will calls for explanation for the reasons previously set out.39
[190] I am satisfied that the fact that Ms Henderson asked for and received a rational explanation for the change to the 2016 Will is cogent evidence that Joan was not operating under undue influence in respect of the 2016 Will, or inferentially in respect of the 2015 Will. Mr Catran aptly described the instructions given for the 2016 Will as “doubling down” on the 2015 Will. As discussed above, I accept that the explanation given to Ms Henderson was not one which invites the Court’s suspicion in the circumstances of this case. 40
[191] There is no evidence that Judith had anything to do with the 2016 Will other than picking it up from Fenton McFadden and delivering it back to Fenton McFadden after it was signed. She describes herself in her affidavit evidence as “just a messenger”. Judith’s evidence is that her mother did not discuss the contents of the 2016 Will with her but rather telephoned Fenton McFadden herself. However, she also freely admits that she had discussed with her mother her own strained financial circumstances and her concerns about what would happen to her husband should she die before Joan. It is regrettable that the 2016 Will was executed in these circumstances. This was another instance of an insufficiently rigorous process in respect of an elderly client.
[192] For all the reasons discussed above, I have come to the view that the evidence does not establish that Joan’s 2016 Will was the result of any undue influence. Accordingly, I dismiss this head of claim and uphold the 2016 Will. While not strictly necessary, I also find that the 2015 Will was also not the result of any undue influence.
Did the executors breach fiduciary obligations owed to the plaintiffs?
[193] The third cause of action was only lightly touched on during the hearing. It centres on the executors’ actions after Joan’s death. As Ms Hosking deftly put it — it is not the main event but a backdrop. Ashley and Romiley argue that the executors
39 Refer [129] above.
40 See [133] above.
have not acted in an even-handed manner in respect of all the beneficiaries. Consequently, they are in breach of a fiduciary obligation and duty of care.41 Among the remedies in the prayer for relief, the plaintiffs sought an award of special damages, an order appointing independent executors and trustees, and costs against the executors personally. I was not addressed on these remedial consequences.
[194] The administrators of an estate owe duties to “hold an even hand” between all the beneficiaries of the estate. That duty extends to potential statutory beneficiaries, such as those who may be entitled to claim under the Family Protection Act 1955, where an executor is aware that they wish to make a claim.42 Such a duty extends to ensuring that an executor does not actively and dishonestly conceal relevant material about the estate from potential claimants who seek information about the estate. In my view, this would also mean a duty not to conceal relevant information during the course of proceedings challenging the administration.
[195] In this instance, the pleading is specific and particularised. The fiduciary breach is said to be the fact of applying for probate in a compressed time frame in a manner preventing the plaintiffs from lodging a caveat. No authority was cited in support of this proposition.
[196]In closing submissions, Ms Hosking relied on the following:
(a)A failure by Ms Henderson to make direct inquiries of Joan or to properly examine the issue of equal treatment of grandchildren having been put on notice of concerns that Romiley might contest the Will as she would not agree that all the grandchildren should be treated the same;
(b)The delays by Fenton McFadden in providing the Wills to the plaintiffs while simultaneously progressing probate;
41 The alleged duty of care is not particularised.
42 Sadler v Public Trust [2009] NZCA 364 at [35].
(c)Proceeding under urgency with an application for probate which prevented the lodging of a caveat when the executors anticipated claims by the plaintiffs;
(d)The conduct of the proceedings more generally including the “explanations” for a failure to disclose communications between the co-executors in the period 20 November 2019 to 6 December 2019 and Judith’s refusal to disclose the identity of the friend who sat with Joan on the day of Peter’s funeral; and
(e)The late identification of the bank account jointly held by Joan and Judith, not originally included as part of Joan’s Estate because of the operation of the rule of survivorship and only discovered by Romiley’s investigations.
[197] It is unsurprising that the handling of the Estate aroused suspicion on the part of the plaintiffs. With the benefit of hindsight, I consider that some of the ill feeling between the parties might have been avoided had communication been more open and had Joan’s Wills been provided to the plaintiffs before the application for probate. Instead, the position of the parties became entrenched and the ensuing lack of objectivity led to increased costs for all concerned.
[198] That Ms Henderson did not make any further enquiry of Joan or consider further the equal treatment of the grandchildren are not pleaded matters under this cause of action.43 These matters are ill-suited to a claim for breach of fiduciary against personal representatives in respect of the administration of an estate.
[199] Although I have some disquiet about how events unfolded, on balance, the communications from the plaintiffs’ solicitors were sufficiently opaque that Fenton McFadden was not on notice of the particular claims against the Estate such that it was imprudent to proceed with probate. The stated reason for instructing solicitors was “for efficiency”. At the same time, Romiley wrote to her Aunt directly saying that
43 The drafting of both the 2016 and 2015 Wills is problematic in the light of s 23 of the Wills Act had the Pointons predeceased Joan.
they had engaged a New Zealand lawyer to “make it easier for you to help manage the process” given they were out of the country. Ashley and Romiley were treading carefully, not yet aware of the terms of the 2016 Will, and cautious about the impact of their position on family relations. I do not accept that it was designed to lull Judith into a false sense of security as Mr Catran suggested.
[200] There is no evidence that the plaintiffs as beneficiaries were materially prejudiced by the manner in which the Estate or Probate was handled. There is no evidence of detriment through being unable to propound the 2011 Will due to the 2016 Will being admitted to Probate. Had a caveat been lodged to prevent Probate, the procedure would have been different but, ultimately, the same issues would have been canvassed. This is particularly so where the executors proposed in December 2019 that, until resolution, the assets of the estate be collected and put on interest-bearing deposit rather than distributed. These matters may well however bear on the incidence of costs, an issue on which I will need to hear from the parties.
[201]Accordingly, I dismiss the plaintiffs’ claim for breach of fiduciary obligations.
Result
[202]I dismiss the plaintiffs’ claims and uphold the 2016 Will.
[203] Costs ordinarily follow the event but in this instance, I reserve all questions of costs including what costs, if any, ought to be borne by the estate. I invite submissions if the parties are not able to resolve costs between themselves.
[204] If costs cannot be resolved between the parties, memoranda may be filed in accordance with the following timetable:
(a)The defendants are to file memoranda (of no more than five pages plus schedules) within 21 days of the date of this judgment;
(b)The plaintiffs’ responsive memoranda (of no more than five pages plus schedules) to be filed and served within 14 days thereafter;
(c)Reply memoranda of no more than two pages to be filed and served within 7 days thereafter.
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Walker J
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