Jew v Jew

[2019] NZHC 1993

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-001721

[2019] NZHC 1993

IN THE MATTER OF

the Estate of ZETA MARY JEW (also known as Jan Jew)

UNDER

Part 27 of the High Court Rules

BETWEEN

CHRISTOPHER GEORGE JEW and AMANDA MARIE McLAUGHLIN

Plaintiffs

AND

PATRICIA ANNE JEW

Defendant/Counterclaim-Plaintiff

Hearing:

12-14 August 2019

Appearances:

M J Fisher, K J Ng and T J Yoon for the plaintiffs

R J Hollyman QC, A J Steel and A J Peat for the defendant

Judgment:

15 August 2019

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 15 August 2019 at 11am Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

R J Hollyman QC, Auckland

Claymore Partners Limited, Auckland LeeSalmonLong, Auckland

JEW v JEW [2019] NZHC 1993 [15 August 2019]

[1]                 In the wake of settlement of this proceeding, on its second day of its four-week fixture, the parties now jointly seek a grant of administration.

Relevant background

[2]                 Zeta Mary  Jew,  also  known  as  Jan  Jew  (“Jan”),  died  at  Auckland  on 23 September 2017. She is survived by her two children, the first-named plaintiff (“Chris”) and the defendant (“Patricia”), and seven grandchildren, including the second-named plaintiff (“Amanda”).

[3]                 Jan left four wills, dated 2006, 2014, 2016 and 2017 respectively. Chris and Amanda were named executors and trustees in the 2016 and 2017 wills; Chris and Patricia (and an independent solicitor) in the 2014 will; and Jan’s late husband, Terence Francis Jew (“Terry”), and Patricia in the 2006 will.

[4]                 Chris and Amanda originally sought probate of the 2017 will, but that since has been renounced. The current proceeding was to dispute the validity of the 2014 and 2016 wills. The dispute now has been resolved, with everyone having any interest under any of the wills consenting to probate of the 2006 will being granted to Patricia.

Application for grant of administration

[5]                 Technically, I am presented with an application for a grant of administration: an “application in solemn form” under HCR 27.6, to resolve some contentious aspect of the will’s validity; alternatively, an “application without notice” under HCR 27.4 ‘in common form’. Probate in solemn form is generally irrevocable; probate in common form is revocable.

Discussion

[6]                 The ‘contentious aspect’ of the 2006 will’s validity is, obviously, the presence of the other later wills. Given this Court’s probate jurisdiction,1 such contention is not to be overcome ‘by consent’ among survivors or other interested parties. The

1      Administration Act 1969, s 5.

deceased’s apparent intentions also matter.2 An apparently rational will, as Jan’s may be, is presumed to reflect testamentary capacity.3

[7]                 But the parties’ respective expert medical witnesses provided, at my direction, a joint statement in which they agreed “regardless of where Mrs Jew’s cognitive functioning lay on the spectrum of normal to impaired, it is reasonable to question her testamentary capacity in October 2014 and October 2016”, being the dates of the 2014 and 2016 wills.4 Although the 2017 will was no longer in dispute between the parties, I extrapolate such questioning would have extended to the 2017 will, and accept the medical opinion.

[8]In Bishop v O’Dea, the Court of Appeal held:5

If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have testamentary capacity rests on those who seek probate of the will ….

Here, where there is no dispute Jan’s capacity is a ‘tenable issue’, any presumption of such capacity is rebutted.

[9]                 Absent evidence of that capacity, then, I cannot be satisfied even on the balance of probabilities as to the validity of the latter wills. That leaves only the  2006 will.   I have all the evidence I require to grant probate of it in solemn form.

Result

[10]I grant probate of the 2006 will in solemn form.

—Jagose J

2      There may be circumstances in which a deceased’s prior consent – essentially renouncing a later will – is available. But that is not the case here.

3      Re White [1951] NZLR 393 at 409 (CA) and Peters v Morris CA99/85, 19 May 1987 at 24–25, both cited in Bishop v O’Dea (1999) 18 FRNZ 492 at [3].

4      Joint statement of Drs Jane Casey and Brian Peter Gregory Young dated 9 August 2019.

5      Bishop v O’Dea, above n 3, at [4], citing Public Trustee v Blick [1973] 1 NZLR 301 (CA) and

Peters v Morris, above n 3.