Hooper v Thackwell - [2025] NZHC 648

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-88

[2025] NZHC 648

BETWEEN
KAREN LEE HOOPER

Plaintiff

AND

DARRYL RONALD THACKWELL

Defendant

Hearing: 6 November and 16 December 2024

Appearances:

B A J Taylor for the Plaintiff (via VMR) No appearance for the Defendant

Judgment:

26 March 2025

JUDGMENT OF HARLAND J

(formal proof)

Introduction

[1] Enid Joyce Thackwell (Enid) died on 7 May 2022 at Invercargill when she was 95 years of age. She had been a widow since 2013 and was survived by two adult children, a son and a daughter, who are the named parties in this proceeding. I refer to them as Karen and Darryl in this judgment.

[2] No major assets remained in Enid's possession at the time of her death. Her last major asset was the former family home on Estuary Road, Christchurch.

[3]On 9 October 2014, Enid legally bound herself in several ways. She:

(a) entered into an agreement to sell the Estuary Road property to Darryl for
$305,000.

HOOPER v THACKWELL [2025] NZHC 648 [26 March 2025]

(b) made her only known Will, in which she appointed Darryl as her executor and trustee, and left her entire residual estate to him alone; and

(c) signed enduring powers of attorney for personal care and welfare and property appointing Darryl as her attorney.

[4] These documents were not prepared by Enid’s family solicitor, but by a new solicitor who acted for both Enid and Darryl on the transactions, having obtained from them both a waiver of independent legal advice.

[5] On 3 November 2014, the Estuary Road property was transferred to Darryl. The same day, two other important documents were executed by Enid. The first was a deed of acknowledgement of debt recording that the agreed purchase price of
$305,000 for the Estuary Road property had been lent to Darryl by Enid and the second was a deed of forgiveness of that debt.

[6] Darryl sold the Estuary Road property, with settlement on about 29 June 2015. He then purchased two properties in Invercargill. Enid went to live with Darryl in one of the Invercargill properties.

[7] In January 2016, Enid was diagnosed with advanced dementia after she fell and was admitted to hospital. This was preceded by a Montreal Cognitive Assessment (MoCA) in either April or June of 2015 which demonstrated moderate impairment and CT scans conducted on 20 December 2015 and 21 January 2016. On 25 January 2016, Enid was deemed not to be competent and the enduring powers of attorney in favour of Darryl were activated. A further MoCA conducted on 29 August 2016 supported the dementia diagnosis.

[8] Concerns arose about Enid’s care arrangements in Invercargill by multiple agencies engaged to support Enid including her general practitioner, Age Concern New Zealand, home support agencies, HealthCare New Zealand and needs assessors. On 29 March 2022, about six weeks before she died, the Southern District Health Board applied to the Family Court on…

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 Hooper v Thackwell

Details

AGLC: Hooper v Thackwell [2025] NZHC 648
Case: [2025] NZHC 648
Decision Date: 26 March 2025

CaseChat Overview and Summary

Hooper v Thackwell is a proceeding brought by Karen Hooper against her brother, Darryl Ronald Thackwell, concerning the validity of a will made by their mother, Enid Joyce Thackwell, and the circumstances surrounding the transfer of a family property. The case involves claims of testamentary incapacity, undue influence, and unconscionable dealing. The High Court of New Zealand, Invercargill Registry, delivered its judgment on 26 March 2025. The court considered the evidence provided by Karen, including testimonies from family members and healthcare professionals, as well as medical records and legal documents.

The court found that Enid lacked testamentary capacity when she executed her will on 9 October 2014, making it invalid. The evidence indicated that Enid had been experiencing cognitive decline, as evidenced by her medical history and MoCA test results. Although there was no direct medical evidence regarding her capacity in October 2014, the circumstantial evidence, including her rapid physical and mental deterioration post-signing of the will, raised a tenable issue of her lack of capacity.

Regarding the transfer of the Estuary Road property to Darryl, the court determined that Darryl exerted undue influence over Enid, leading to the invalidity of the transfer and the forgiveness of the debt. The relationship between Enid and Darryl, marked by trust and confidence, coupled with the suspicious circumstances surrounding the transactions, supported the finding of undue influence. Darryl's actions, including preventing Enid from receiving independent legal advice and persuading her to consult a new solicitor, further substantiated this conclusion.

The court also found that the transfer of the Estuary Road property and the forgiveness of the debt constituted an unconscionable dealing. Enid's vulnerability due to her age and declining health, combined with Darryl's knowledge of her condition and his failure to ensure she received independent advice, led to this determination. The court ordered that Darryl repay the amount of $305,000 plus interest to Enid's estate and set aside the deed of forgiveness of debt. Additionally, the court declared Enid's will invalid and made orders to secure the payment from Darryl. The court reserved leave for further applications regarding consequential orders and costs.

Orders