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Halse v Lawrey

Halse v Lawrey

Case [2023] NZHC 223 17 February 2023

Testamentary Capacity

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-614164

[2023] NZHC 223

IN THE ESTATE
of HAROLD STANLEY SMITH of

Auckland, Retired (deceased)

BETWEEN

GRAEME WILLIAM HALSE

Applicant/Executor

AND

CARA EMILY LAWREY

Caveator

RICHARD HAROLD SMITH

Interested Party

Hearing: 8 February 2023 (Heard at Auckland)

Appearances:

D Grove for the Applicant/Executor G D Pearson for the Caveator

L W Dixon and W S Gatting for the Interested Party

Judgment:

17 February 2023

JUDGMENT OF HARVEY J

This judgment is delivered by me on 17 February 2023 at 4 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
LegalFocus Limited, Nelson (G Pearson) Foy & Halse, Auckland (G Halse)
Patterson Hopkins, Auckland (L Dixon and W Gatting)

Counsel:
Daniel Grove, Auckland

Re. SMITH H S ESTATE [2023] NZHC 223 [17 February 2023]

Introduction

[1] Harold Stanley Smith died on 11 October 2021 aged 79. He was unmarried, was not in any other form of domestic relationship when he died and left a will dated 20 July 2021. He named his son Richard Smith and his solicitor Graeme Halse his executors and trustees. He also gave his whole estate to Richard.1

[2] A decade earlier, the deceased made a will dated 1 July 2011 through a firm of solicitors in Lower Hutt arranged for him by his granddaughter, Cara Lawrey. Ms Lawrey is the daughter of Mr Smith and is a lawyer. By that earlier will, the deceased left his estate as to 40 per cent equally divided between his two sons Mr Smith and Bruce Tamblyn, with the balance to be distributed equally amongst his grandchildren.

[3] On 14 October 2021, three days after the deceased’s death, Ms Lawrey lodged a caveat against probate. Following that, on 18 March 2022, Mr Halse applied for an order nisi requiring Ms Lawrey to show cause why probate should not be granted. That order nisi was issued on 21 April 2022. Ms Lawrey as caveator, and her siblings, with support from Mr Tamblyn, now challenge the validity of the deceased’s last will, raising questions over testamentary capacity and undue influence.

[4] In a joint memorandum of counsel dated 23 September 2022, the parties confirmed that the preliminary issue before the Court is whether the caveator can establish cause not to make the order nisi absolute. Should that occur, it is agreed that the matter will go to a hearing in an application made in solemn form. The issue for determination is whether a full inquiry should be made.

Ms Lawrey’s submissions

[5] Mr Pearson submitted that the affidavits filed in support of the caveat establish that a full inquiry is necessary as there are questions to determine regarding testamentary capacity and undue influence. Added to that, counsel contended that given the fact that a live inquiry is in train regarding an allegation of elder abuse, it is

1 For clarity Harold Smith will be referred to as…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Halse v Lawrey

Details

AGLC: Halse v Lawrey [2023] NZHC 223
Case: [2023] NZHC 223
Decision Date: 17 February 2023

CaseChat Overview and Summary

Cara Lawrey, the granddaughter of the deceased, Harold Stanley Smith, lodged a caveat against the grant of probate of Mr Smith's will, which left his entire estate to his son Richard Smith. The will replaced an earlier version, which provided for a distribution of the estate amongst Mr Smith's children and grandchildren. Ms Lawrey's caveat raised questions of testamentary capacity and undue influence, and Richard Smith and Graeme Halse, the executor of the will, applied for an order nisi to require Ms Lawrey to show cause as to why the will should not be granted probate. The central issue before the court was whether a full inquiry should be made to determine the validity of the will.

The court found that the threshold for requiring a full inquiry was low and that the caveator should provide such evidence as is readily available to support the caveat. The claims of lack of testamentary capacity and undue influence were sufficient to warrant a full inquiry. The court noted that Mr Smith's health had declined significantly before he made the new will, and there was evidence of his dependency on his son during this time. The court also observed that the deceased's cognitive abilities had been confirmed by medical professionals, but that further examination of the deponents was necessary to fully assess the claims. The court concluded that the claims of lack of testamentary capacity and undue influence were arguable and that a full inquiry should be held.

The court ordered that the executors make an application for probate in solemn form and that the fixture for the inquiry hearing be scheduled. The court also considered that Mr Halse's legal costs should be paid from the estate, but gave the parties one month to file submissions on the point if they disagreed. The court's decision highlights the importance of the threshold for requiring a full inquiry in probate proceedings and the need for further examination of the deponents to fully assess the claims of lack of testamentary capacity and undue influence.

Orders