Hewton v Heming
[2015] NZHC 2831
•13 November 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-000020 [2015] NZHC 2831
IN THE MATTER OF ESTATE BRYAN NORMAN WILSON BETWEEN
AINSLIE MARIE HEWTON Plaintiff
AND
SALLY MARGARET HEMING First Defendant
FIONA NORA BLACK Second Defendant
HEATHER WILSON Third Defendant
ROBIN WILSON Fourth Defendant
SARAH LOUISE DUCKETT Fifth Defendant
FIONA MAREE MATTHEWS Sixth Defendant
DAVID EDWARD MURPHY Seventh Defendant
Hearing: 12 November 2015 Counsel:
Plaintiff in person
J C Gwilliam for First Defendant Second Defendant in person Third Defendant in person
Fourth Defendant in person
No appearance for Fifth and Sixth Defendants
C J Mundy-Smith for Seventh DefendantJudgment:
13 November 2015
JUDGMENT OF COLLINS J
HEWTON v HEMING [2015] NZHC 2831 [13 November 2015]
Introduction
[1] I am satisfied the late Mr Wilson had the requisite testamentary capacity when he executed his will dated 23 June 2011.
[2] Mr Wilson’s will of 23 June 2011 is to be admitted for probate. The caveats
on that will are discharged.
Background
Mr Wilson’s wills
[3] Mr Wilson passed away on 2 June 2014. He had made three wills during his lifetime:
(1) His first will was dated 25 February 1998. (2) His second will was dated 24 May 2011. (3) His third will was dated 23 June 2011.
[4] Mr Murphy, a Wellington lawyer, is named as the executor of the first will. Ms Hewton, a lawyer in Masterton and the plaintiff in this proceeding, was named as executrix of the second and third wills.
[5] This proceeding emanates from Ms Black and Ms Wilson lodging caveats in relation to Mr Wilson’s second and third wills. Ms Black and Ms Wilson are the biological daughters of Mr Wilson. They formed the view that Mr Wilson did not have the necessary mental capacity to make his second and third wills. They were also concerned the third will was created as a result of undue influence by Ms Heming, who had been Mr Wilson’s de facto partner from April 1998 until the time of his death.
[6] Mr Wilson’s estate is valued at approximately $303,525.72.
[7] The beneficiaries of Mr Wilson’s first will were Ms Black, Ms Wilson and Mr Robin Wilson, who is the son of Mr Wilson. The fifth and sixth defendants, who are Mr Wilson’s adopted daughters, were not named as beneficiaries.
[8] Under Mr Wilson’s second will Ms Heming was to receive 50 per cent of
Mr Wilson’s cash assets and his children were to receive an equal share of the other
50 per cent of his cash assets. The residue of Mr Wilson’s estate was left to Ms Heming for her use and enjoyment during her lifetime. After Ms Heming’s death the residue of Mr Wilson’s estate was to be divided in half with one half going to Ms Heming’s estate and the other half going to Mr Wilson’s biological children in equal shares.
[9] Under Mr Wilson’s third will, a term deposit was to be paid to Ms Heming. A debt of $40,000, which Ms Wilson owed Mr Wilson, was to be allocated to Mr Wilson’s three children in equal shares. Mr Wilson left his family home to Ms Heming. In the event of Ms Heming’s death, the residue of Mr Wilson’s estate was to be allocated on the basis of 60 per cent going to Ms Heming’s estate and 40 per cent to Mr Wilson’s biological children in equal shares.
[10] The parties, including the fifth and sixth defendants have reached an agreement concerning the distribution of Mr Wilson’s estate. That agreement renders it unnecessary to consider the claims of undue influence initially raised by Ms Black and Ms Wilson. However, the parties require determination as to whether or not Mr Wilson had testamentary capacity at the time he created his third will. If he did not, I must determine if he had testamentary capacity at the time he made his second will. Although that is the sequence I am required to follow when reaching my formal conclusions, it is convenient to examine the circumstances surrounding the making of the second and then the circumstances surrounding the making of the third will.
Mr Wilson’s medical conditions
[11] Before examining the circumstances under which Mr Wilson made his second and third wills, it is appropriate that I briefly explain Mr Wilson’s medical condition. I have been greatly assisted in this aspect of my decision by the evidence
of Dr Duncan, a psycho-geriatrician and Dr Matthews, a physician and geriatrician,
both of whom were involved in Mr Wilson’s care over the relevant period.
[12] Dr Matthews first became involved in Mr Wilson’s care in mid-2008 when Mr Wilson developed symptoms of “psychomotor slowing”.1 At the time Dr Matthews was concerned Mr Wilson may have been suffering from depression or the early stages of dementia. Arrangements were made for Mr Wilson to be seen by Dr Duncan.
[13] Dr Matthews saw Mr Wilson again on 28 June 2011, at which time it was clear to Dr Matthews “that Mr Wilson was developing a dementia illness. In addition to a decline in his cognitive functions, he … had some physical features suggesting neurodegeneration …”.2
[14] In March 2011, Mr Wilson was admitted to Wairarapa Hospital but returned home when his condition improved. In August 2011, Mr Wilson was admitted again to Wairarapa Hospital. He appeared to have delirium but no clear aetiology for that condition was able to be established. His type of dementia appeared to have superimposed periods of delirium without any clear aetiology. In September 2011, Mr Wilson was placed into a care facility pursuant to orders made under the Protection of Personal and Property Rights Act 1988.
[15] Dr Duncan first saw Mr Wilson in July 2008, at which stage “Mr Wilson had a bearable but worsening cognitive impairment”.3
[16] Dr Duncan has explained that when Mr Wilson was admitted into Wairarapa Hospital in March 2011, it was “clear that Mr Wilson had developed some cognitive slowing”.4
[17] Both doctors in their affidavits agreed that Mr Wilson could have had sufficient understanding of making a will in May 2011 if he gave instructions to
1 Affidavit of T Matthews, 8 July 2015 at [2].
2 At [3].
3 Affidavit of A J Duncan, 15 October 2014 at [3].
4 At [7].
complete a relatively simple will and if that will was explained to him properly at the time.
Circumstances surrounding the making of the second will
[18] Ms Hewton has explained in her affidavit Mr Wilson made an appointment with Ms Hewton for 13 May 2011. Ms Hewton was aware through a mutual acquaintance that Mr Wilson might not have capacity to make a will.
[19] Ms Hewton interviewed Mr Wilson by himself. Mr Wilson was able to give Ms Hewton his personal details and explained that he wished to make a will. He was able to describe his assets, his five ANZ accounts, his loans, a debt owed to him by his son and daughter and other relevant matters.
[20] Ms Hewton has explained in her affidavit that Mr Wilson gave the names and dates of birth of his children, but not the names of his adopted children. He discussed his birth children’s financial situation and instructed they were to be treated fairly equally.
[21] Ms Hewton explained to Mr Wilson his obligations to his children and to
Ms Heming.
[22] Ms Hewton has said in her affidavit that Mr Wilson’s appointment with her lasted for approximately one hour. She noted that his mood was even, although at times he was slow in his responses. Ms Hewton formed the clear impression Mr Wilson knew the details of his estate and how he wished it to be dealt with in his will.
[23] Mr Wilson attended Ms Hewton’s office on 25 May 2011 to execute the will. He spent approximately 20 minutes there. Nothing untoward was noted.
Circumstances surrounding the making of the third will
[24] Ms Heming has explained how the third will came to be made. She has explained that after Mr Wilson made his second will she became concerned about the
terms of that will, how she was not protected and would be “tied” to Mr Wilson’s children for the rest of her life. She was also concerned there was no mention of a loan that Mr Wilson had made to his daughter, Ms Wilson.
[25] Ms Hewton has explained in her affidavit that she and Mr Wilson discussed his second will and that a few days later Mr Wilson decided he wanted to write a new will. He said he wanted a “simple will”, which covered Ms Heming and his children. Ms Heming says she agreed to help Mr Wilson prepare a new will.
[26] Ms Heming has explained that she carefully discussed with Mr Wilson his suggestion to prepare a new will and that she was aware of the implications and difficulties that would arise if a further will was prepared along the lines that she and Mr Wilson discussed. Ms Heming has explained that she and Mr Wilson talked about each of the clauses in the third will and that Mr Wilson was “absolutely lucid and practical” at the time.5
[27] In her affidavit, Ms Heming has said that on the afternoon of 23 June 2011, Ms Vendt, Ms Kordell and Mr Brown were visiting Mr Wilson and Ms Heming. Ms Heming suggested that Ms Vendt and Mr Brown witness Mr Wilson’s will. Mr Wilson agreed and so the third will was signed by Mr Wilson and witnessed by
Ms Vendt and Mr Brown. Ms Heming has stated:6
… Prior to everyone signing it, I read each clause through, making sure that [Mr Wilson] understood each clause. He said that he did, and at the end, I asked him if this was what he wanted. He said that he agreed with everything in the will and that he was happy to sign it. He signed the will and then [Mr Brown] and [Ms Vendt] witnessed it for him.
Testamentary capacity
[28] A valid will must be made by a person who has the mental capacity to make a will.7 The following five principles govern testamentary capacity.
5 Affidavit of S M Heming, 1 April 2015 at [13].
6 At [15].
7 Bishop v O’Dea (1999) 18 FRNZ 492 (CA).
[29] First, the person making the will must have the requisite mental capacity at the time he or she executes the will. Thus a person who is generally suffering from mental health issues may nevertheless make a valid will during a period of lucidity.8
[30] Second, a will that is rational on its face will, absent evidence to the contrary, be presumed to have been made with testamentary capacity.9
[31] Third, if the maker of a will suffered from a serious mental health illness immediately prior and subsequent to making the will, then, in the absence of evidence to the contrary, it is presumed he or she suffered from his or her mental illness and lacked testamentary capacity at the time he or she made the will.10
[32] Fourth, where the testamentary capacity of the maker of the will is put in issue, those who seek to uphold the will have the onus of establishing on the balance of probabilities that the maker of the will had the requisite mental capacity.11
[33] Fifth, the maker of a will has the mental capacity to make a valid will when it is established that:12
(1)he or she understood that he or she was making a will and the consequences of him or her doing so;
(2) he or she knew what property was to be bequested; and
(3)he or she understood the moral claims of those who should have been considered to be beneficiaries when making the will.
8 Bishop v O’Dea, above n 7, at [7].
9 In re White (deceased) [1951] NZLR 393 (CA) and Peters v Morris CA99/85, 19 May 1987.
10 John Martyn, Charlotte Ford, Alexander Learmonth, Mika Oldham Theobald on Wills (17th ed, Sweet & Maxwell, London, 2013) at [3-010] and Brown v Pourau [1995] 1 NZLR 352 (HC) at
364.
11 Watkins v Public Trustee [1960] NZLR 326 (CA); Public Trustee v Bick [1973] 1 NZLR 301 (CA); Nijsse v Squires CA53/04, 15 December 2004; Peters v Morris, above n 9; In re W
(Enduring Power of Attorney) [2001] Ch 609.
12 Woodward v Smith [2009] NZCA 215 at [19]; citing Banks v Goodfellow (1870) LR 5 QB 549 at
565-568; David Hayton (ed) Underhill and Hayton Law Relating to Trusts and Trustees (18th ed, LexisNexis, London, 2010) at [13.6] and Andrew Butler (ed) Equity and Trusts New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) at [4.1.1(4)].
Analysis
[34] Drs Duncan and Matthews have said Mr Wilson was suffering from deteriorating cognitive abilities during the course of 2011. The evidence of Drs Duncan and Matthews satisfies me that at the time Mr Wilson made his second will he was suffering from some degree of dementia.
[35] I am satisfied however that Mr Wilson had the requisite mental capacity to make his second will. There are three reasons why I have reached this conclusion.
[36] First, Drs Duncan and Matthews are in agreement that Mr Wilson would have retained a sufficient understanding to be able to complete the second will.
[37] Second, on its face, the second will is rational, relatively simple and logical.
[38] Third, Ms Hewton was alert to the possibility that Mr Wilson lacked testamentary capacity. She is an experienced lawyer and very carefully assessed Mr Wilson’s capacity during the course of her hour long interview with Mr Wilson. She was satisfied that Mr Wilson had sufficient mental capacity to be able to make his second will.
[39] I am also satisfied that Mr Wilson had the testamentary capacity to make his third will. I have reached this conclusion for the following reasons.
[40] First, the timeframe between the second and third wills was only a matter of weeks.
[41] Second, the third will is also logical and coherent.
[42] Third, there is no medical evidence which suggests Mr Wilson’s mental capacity at the time he made his third will had deteriorated in any way from the time he made his second will.
[43] Ms Hewton believes there are some issues about Mr Wilson’s mental capacity at the time he made his third will. Ms Hewton’s concerns arise primarily because of
the influence of Ms Heming over Mr Wilson’s decision to make the third will, and the contents of that will. However, as there is no longer any allegation of undue influence, I must give minimal weight to that particular concern.
Disposition
[44] The third will is the last will. I am satisfied Mr Wilson had testamentary capacity at the time he made his third will. Accordingly, it is the third will which should be admitted for probate.
[45] The caveats lodged by Ms Black and Ms Wilson in relation to the third will are discharged.
[46] The plaintiff’s reasonable costs shall be met by the estate of Mr Wilson.
D B Collins J
Solicitors:
Ainslie Hewton, Masterton for Plaintiff
Mainstreet Legal Limited, Upper Hutt for First Defendant
Tripe Matthews Feist, Wellington for Seventh Defendant
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