Green v Green - [2014] NZHC 1991

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3676

CIV-2013-404-4840 [2014] NZHC 1991

UNDER
PART 18 OF THE HIGH COURT RULES

AND SECTION 51 OF THE TRUSTEE ACT 1956

IN THE MATTER OF

the Hugh Green Trust and the Hugh Green
Property Trust

BETWEEN

MARYANNE GREEN Plaintiff

AND

JOHN PATRICK GREEN First Defendant

AND

MICHAEL JOHN FISHER Second Defendant

AND

JOHN PATRICK GREEN, MICHAEL JOHN FISHER, FRANCES KATHLEEN GREEN AND JOHN JAMES GOSNEY GOSNEY (as presently named trustees of a trust known as the Hugh Green Trust, settled by deed dated 7 June 1968)

Third Defendants

AND

JOHN PATRICK GREEN, MICHAEL JOHN FISHER, FRANCES KATHLEEN GREEN AND JOHN JAMES GOSNEY (as presently named trustees of a trust known as the Hugh Green Property Trust, settled by deed dated 20 March 1989) Fourth Defendants

Hearing: 12 August 2014

Appearances:

Ms Bruton, Mr Harley, Ms Brown for plaintiff
Mr Grieve QC for first defendant in CIV-2013-404-4840
Mr Stewart QC & Mr Lange & Mr Ryan for all defendants in
CIV-2013-404-4840
Mr Waalkens QC for defendants in probate proceeding CIV-
2013-404-3676

Mr Hunter, Ms Ambler for Ms Piper

GREEN v GREEN & FISHER [2014] NZHC 1991 [12 August 2014]

Judgment: 12 August 2014

Reasons:

21 August 2014

JUDGMENT OF WINKELMANN J

[in relation to evidence relating to issues of capacity and undue influence]

This reasons judgment was delivered by me on 21 August 2014 at 4.30 pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

[1] These proceedings concern challenges to the validity of a will and to the validity of the exercise of certain powers of removal and appointment. The challenges are made on two principal bases.1 First, it is alleged that the late Mr Hugh Green lacked capacity at the relevant time: both testamentary capacity and the capacity to exercise powers as settlor or trustee. Secondly, it is alleged that he was subject to the undue influence of two of his children and a lawyer who was working with them.

[2] Objection has been made to the admissibility of various opinions contained in affidavit evidence filed by the defendants for the hearing. In broad terms, this evidence contains statements of opinion concerning Mr Green’s mental functioning and susceptibility to influence in the last months of his life. These are opinions expressed by people who had contact with Mr Green in that time period. They are, in large part, his friends. The plaintiff objected to the admissibility of parts of that evidence, on the grounds that it is opinion evidence and inadmissible. This objection did not extend to the opinion evidence contained in the affidavits of medical professionals who are to be called by the defendants.

[3] Objection has also been made to other passages on the grounds that they are argumentative, or speculative. At the end of the hearing I heard argument, and issued rulings. I now set out the reasons for those rulings.

Relevant principles

[4] Sections 7 and 8 of the Evidence Act 2006 are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 1991
Decision Date: 12 August 2014

CaseChat Overview and Summary

In the case of Green v Green and Fisher, the primary issue before the court was the admissibility of various opinion evidence contained in affidavits filed by the defendants regarding the late Mr. Hugh Green's mental functioning and susceptibility to undue influence during the last months of his life. The plaintiff objected to the admissibility of certain passages in the affidavits, arguing that they contained inadmissible opinion evidence, were argumentative, or speculative. The court heard arguments from both sides and issued rulings on the admissibility of the objected passages.

Under the Evidence Act 2006, opinion evidence is generally inadmissible unless it falls under one of two exceptions. The first exception applies where the expression of the opinion is necessary for the witness to communicate what they saw, heard or otherwise perceived. The second exception applies to expert evidence, which was not claimed by the defendants in this case.

The court considered the balance of the affidavits and ruled on the admissibility of the objected passages. The court found that some passages containing generalised assertions of Mr. Green's mental functioning or capacity were inadmissible, as they raised more questions than they answered and were not necessary to effectively communicate the information to the finder of fact. However, some descriptive passages were found to be admissible, as they conveyed the deponents' observations of Mr. Green's mental state without the need for conclusionary or unhelpful generalised assertions.

In summary, the court ruled on the admissibility of various opinion evidence in the affidavits and allowed certain descriptive passages while striking out others that were found to be inadmissible under the Evidence Act 2006. The court's reasoning focused on whether the opinion evidence was necessary to effectively communicate the deponents' observations and whether it met the criteria for admissibility under the Act.

Orders