Hewton v Heming - [2015] NZHC 2831

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 Defendant

Judgment:

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…

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 Hewton v Heming

Details

AGLC: Hewton v Heming [2015] NZHC 2831
Case: [2015] NZHC 2831
Decision Date: 13 November 2015

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine whether the deceased, Bryan Norman Wilson, had testamentary capacity when he executed his third will dated 23 June 2011, and if not, whether he had testamentary capacity when he executed his second will dated 24 May 2011. The wills were contested by Wilson's daughters, Sally Margaret Heming and Fiona Nora Black, who questioned whether Wilson had the mental capacity to make his second and third wills. They also argued that undue influence was exerted on Wilson by his de facto partner, Sally Margaret Heming. The court needed to decide if Wilson had the requisite mental capacity to execute a valid will and, if so, which will should be admitted for probate.

The court considered the medical evidence of Dr Duncan and Dr Matthews, who both concluded that Wilson had sufficient understanding to make a will in May 2011. The court also heard evidence from Ms Hewton, who conducted an interview with Wilson and found him to have sufficient mental capacity to make a will. The court concluded that Wilson had the requisite mental capacity to make his third will, based on the logical and coherent nature of the will, the short timeframe between the second and third wills, and the absence of any evidence suggesting a deterioration in Wilson's mental capacity. The court found no evidence of undue influence from Heming on Wilson and dismissed the claims of undue influence. Therefore, the court held that the third will was valid and should be admitted for probate.

The High Court of New Zealand held that Mr Wilson had testamentary capacity at the time he executed his third will dated 23 June 2011. The court found that the third will should be admitted for probate and the caveats lodged by Wilson's daughters were discharged. The court also ordered that the plaintiff's reasonable costs would be met by the estate of Mr Wilson.

Orders