Jury v Eynon
[2015] NZHC 738
•17 April 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-9109 [2015] NZHC 738
IN THE MATTER OF the Estate of MARGARET HILL late of
Waitara, Support Worker
BETWEEN
PETER JURY Plaintiff
AND
REBECCA KIM EYNON First Defendant
FALLON ELIZABETH EYNON Second Defendant
Hearing: 4, 5 and 12 March 2015 Counsel:
P J Mooney for Plaintiffs
K A McKenzie for DefendantsJudgment:
17 April 2015
RESERVED JUDGMENT OF MACKENZIE J
I direct that the delivery time of this judgment is
3.00 pm on the 17th day of April 2015
Solicitors: Mooney & Webb, New Plymouth, for Plaintiffs
Govett Quilliam, New Plymouth, for Defendants
JURY v EYNON [2015] NZHC 738 [17 April 2015]
Background
[1] Margaret Hill died on 25 October 2012 after a battle with cancer. She had signed a will on 29 September 2012 leaving all of her estate to her husband Peter Hill. The defendants, her daughters, contest the validity of that will. This is an application by the plaintiff, one of the named executors, for probate in solemn form of that will.
[2] Peter and Margaret Hill were married in May 1999. They were still married at the time of her death. For some years they had an itinerant lifestyle, living in a house bus. In about 2003 they purchased a house in Gore and lived there until 2005, when Margaret went to live in New Plymouth to be near her father who was terminally ill with cancer. Peter travelled up to New Plymouth later and in 2006 they purchased a house in Waitara in their joint names. They separated in 2008. Peter’s evidence is that a relationship property agreement was entered into, the essence of which was that Margaret retained the Waitara house while he retained the house bus, the Gore house and a rental property they had bought there. A third Gore property was sold and the proceeds were used to reduce the mortgage over the Waitara property. The transfer to Margaret was registered in August 2008. Margaret lived in the house, and Peter in the house bus on a section in the same street. Peter’s evidence is that they soon were back living together, apparently in the house bus at some times, and in the house at others.
[3] In late 2011, Margaret travelled to Whangarei to stay with her daughter Rebecca. Peter continued living in the house bus in Waitara. Margaret then went to live and work in the Thames Coromandel area, where Peter joined her in early 2012. On 2 March 2012 there was an altercation between Peter and Margaret which led to him being charged with threatening to kill or do grievous bodily harm and male assaults female. He pleaded guilty in the District Court at Thames to those two charges and was sentenced in the District Court at New Plymouth on 28 June 2012 to three months’ community detention and 175 hours community work.
[4] Shortly before that incident, Margaret had been diagnosed with cancer. She had treatment which was initially thought to have been successful but the cancer
returned. For the last few months of her life, Margaret was at various stages at home, in a hospice in New Plymouth, or in Palmerston North hospital undergoing treatment.
[5] On 3 February 2011 Peter and Margaret made wills with the Public Trust. Each left their estate to the other if he or she survived, with a gift over in favour of Peter’s four daughters and Margaret’s two daughters, in equal shares. On 20 April
2012, Margaret made a will with the Public Trust leaving her estate to her two daughters. On 29 September 2012, Margaret signed the will of which probate is now sought. That made substantially the same dispositions as the 3 February 2011 will. It left her estate to Peter, with a gift over in favour of Margaret’s two daughters and Peter’s four daughters equally.
The grounds of challenge to the will
[6] Margaret’s two daughters challenge the validity of the 29 September 2012 will. They do so on three grounds:
(a) Margaret did not have testamentary capacity when that will was made;
(b) the will was made while she was under the undue influence of Peter;
and
(c) the will was not properly prepared, executed, or witnessed.
The circumstances in which the will was made
[7] For all three grounds, I need first to consider in some detail the evidence about the making of that will, and the circumstances in which it was signed.
[8] Peter’s evidence is that sometime before her death Margaret raised with him what would happen with the mortgage on her house if she should die. She also said to him that she needed to change her will again. She told him that after they had separated the previous year she had amended her will to provide for her two daughters but that as they were still a couple she felt that Peter should be the
beneficiary. He was unable to be precise about the timing of the conversation. He thought it would be weeks before her admission to hospital, which occurred on
28 August 2012. They were in the house bus when the conversation took place.
[9] Margaret also had a discussion about her will with Peter Jury. He lives in Waitara and had been a friend of the couple for some years. In July 2012 he was asked to go with Margaret to Rebecca’s home, near Whangarei, to help in checking that her caravan was roadworthy and safe to return to Waitara, as Rebecca wanted it removed. Peter was unable to go because he was subject to the sentence of community detention. Mr Jury and Margaret travelled to Whangarei on
17 July 2012. His evidence is that in the course of the journey to and from Whangarei, Margaret talked to him about her wish to amend her will. She told him she wanted everything to go to Peter, and if Peter could not inherit it, she wanted everything to be divided between their combined children. In cross-examination he said:
Q. And your evidence is that it was during this conversation that a discussion about Margaret changing her Will occurred?
A. Yes, she said she didn’t want her daughters to get any part of it, that it was to go to her grandchildren and that, um, she would leave it to, leave everything to Peter so that when he died it would then be spread out over the – all the children, his and hers.
[10] Sometime later, in late August or early September, Peter approached Mr Jury to seek his advice about the preparation of new wills for both him and Margaret. At that stage Margaret was in either a hospital or a hospice. Mr Jury spoke to a Mr Simpson, whom he had known for a number of years and had, among other qualifications, a law degree. Mr Jury put Peter in contact with Mr Simpson.
[11] Peter’s evidence is that he met Mr Simpson and advised what Margaret wanted in the new will. He explained that she wanted him to be a beneficiary and that her daughters and his children were to be substituted beneficiaries. Peter also explained to Mr Simpson that Margaret wanted Mr Jury, and her sister, Mrs Voyle, to be trustees.
[12] Mr Simpson is not a practising lawyer. He was not called to give evidence. He prepared a draft will and delivered it to Mr Jury, under cover of a letter dated
14 September 2012 giving instructions about execution. The terms of the letter, although slightly ambiguous on the point, suggest that there were two copies of one will enclosed, which I infer was a will for Margaret, rather than two wills, one for each of Margaret and Peter. Mr Jury’s evidence is that he read the will and it seemed to be consistent with what Margaret had earlier told him she wanted in her new will. He passed the letter and will to Peter. Peter’s evidence is that he showed the will to Margaret and she was happy with it. When he did this they were in the house bus in which they were living at the time. He knew that the will needed two witnesses, so the will was left sitting on a table in the bus.
[13] Margaret then went back into the New Plymouth hospice. It was intended that she would travel to Palmerston North hospital on 30 September 2012 for further treatment. On 29 September 2012, the day before she was to go to Palmerston North, her sister, Mrs Voyle, picked her up from the hospice, took her to her pharmacy in Waitara to collect medication, then dropped Margaret at the house bus at about 1 pm, to pack her bag. Mrs Voyle left Margaret with Peter, who said he would take Margaret back to the hospice in time for her tea and her medication.
[14] Peter’s evidence is that while she was at home at the house bus that day Margaret asked about the will and said that it needed to be completed. Peter got the will out and Margaret read it again. Peter arranged for a neighbour, Mr Edwards, and a person visiting his home, Mr Vincent, to come and act as witnesses. Margaret signed the will and they both witnessed it.
[15] I now address the evidence about Margaret’s state of health and state of mind when the will was executed. Margaret had some long-standing mental health issues, and Peter describes her mental health as fluctuating due to depression. While she was living in the Thames Coromandel area as I have described, Margaret was admitted briefly to Thames hospital on 23 February 2012 after taking a deliberate overdose of 100 units of insulin and Metformin. The clinical notes describe her as having a past history of depression and a family disagreement at home which caused stress and anxiety triggering this incident. She was observed and monitored and
subsequently reviewed by the home-based treatment team for mental health services to oversee her medication for the next few days.
[16] The medical notes from New Plymouth hospital relating to an admission from 28 August to 4 September 2012 record that Margaret was admitted due to abdominal pain and referred to Palmerston North for radiation treatment. The notes record that she was under extensive medication, including Morphine Sulphate. Peter described her as having been on numerous medications over a long period of time. Margaret had an appointment on 7 September 2012 at Palmerston North radiation oncology. Following that she was readmitted to New Plymouth hospital on
9 September 2012. The record of that admission notes the recent diagnosis of endometrial cancer, and the recent radiation therapy. It also notes, “[u]nderstandably very stressful, not coping well – poor appetite/sleep and nauseated … background of anxiety and stress and overdose. Increased risk of stress/anxiety given current situation”.
[17] Margaret was admitted to the hospice in New Plymouth on
19 September 2012. Her cancer diagnosis, and the pain and physical consequences of that, were noted. As to her mental state, a report dated 28 September 2012 from the medical director of the hospice to her GP notes “[s]he had a history of anxiety and depression, treated by a Psychiatrist in the past” and “[p]atient was on Peroxetine 20 mgs po daily for depression, but she still had some mood swings and anxiety, and received Midazolam nasal spray with good effect”, “[p]sychiatric consultation was obtained and she was seen by Dr Ramamurthy and he did not feel there was any significant change in her clinical status and did not recommend any new medications.” That report noted that she was to be discharged to Palmerston North for treatment.
[18] Dr Sephton, the medical team leader at the hospice, gave evidence. She saw Margaret before she left the hospice on 29 September 2012. She produced a copy of her letter to the oncologist treating Margaret at Palmerston North hospital, which described Margaret’s condition on 29 September 2012, before she left the hospice to go home when the will was signed. That described Margaret as appearing over sedated with Clonazepam and as appearing very sleepy. That observation was made
some time prior to 11.02 am on 29 September 2012. In evidence, Dr Sephton amplified her description of Margaret as “very sleepy” by describing her observation of Margaret drooping her head, keeping her eyes shut, being unable to engage in conversation and requiring significant assistance from her sister. Dr Sephton was of the view that the sleepiness may have resulted from the Clonazepam medication Margaret was taking in addition to Morphine, for pain relief. She said that drowsiness is a side effect of both Morphine and Clonazepam individually and the cumulative side effects of both drugs can be more severe if taken together. Dr Sephton’s evidence is that “[g]iven the extent of the medication that Mrs Hill was taking, the individual possible side effects of the medications and the complexity of her illness together with my observations of Mrs Hill on 29 September 2012, I would have concerns about her ability to sign a new will on that day.”
[19] Mrs Voyle described Margaret’s condition when she collected her from the hospice on 29 September 2012. She was shocked when she saw her. Margaret could barely walk unaided, had difficulty speaking clearly and appeared dazed. Mrs Voyle took Margaret to the Unichem Waitara Pharmacy to collect her medication to take to Palmerston North. Margaret could not manage to get from the car into the pharmacy on her own. Her eyes were glazed and she was not talking much at all. When she did speak, her speech was muddled and slurred. Margaret had to be assisted to go to the toilet by Mrs Voyle and a pharmacy assistant.
[20] The pharmacist, Mrs Helms, also gave evidence of Margaret’s condition at the time. She said that she was shocked to see how Margaret looked, having not seen her for a few weeks. She was very unsteady on her feet and could not walk unassisted. Her speech on that day was slurred and her eyes were glazed. She did not seem to recognise Mrs Helms and she had trouble talking. Margaret needed to be assisted to the toilet by Mrs Voyle and another staff member. Mrs Helms was surprised to learn that Margaret was going to Palmerston North for treatment as she did not think that she could have coped with travel to Palmerston North and the effects of chemotherapy or radiation. Margaret did not appear to be in control of either her physical movements or her ability to think and communicate effectively. It was a shock to see someone so unwell in the pharmacy and the memory of her condition stuck in her mind.
Testamentary capacity
[21] The legal principles to be applied are described by the Court of Appeal in
Bishop v O’Dea:1
[3] In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity: Re White [1951] NZLR 393 (CA) and Peters v Morris 19/5/87, CA99/85.
[4] 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: Public Trustee v Bick [1973] 1 NZLR 301 and Peters v Morris (supra).
[5] That onus must be discharged on the balance of probabilities: Watkins v Public Trustee [1960] NZLR 326 (CA). Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.
[6] In order to establish capacity, when in issue, those seeking probate must demonstrate the maker of the will had sufficient understanding of three things:
(a) That he or she was making a will and the effect of doing so
("the nature of the act and its effects");
(b) The extent of the property being disposed of; and
(c) The moral claims to which he or she ought to give effect when making the testamentary dispositions.
These three matters derive from the leading authority of Banks v Goodfellow (1870) LR 5 QB 549 as cited by this Court in Ranby v Hooker 16/9/97, CA172/96, and in Peters v Morris (supra).
[7] If incapacity before the making of the will has been established, those seeking probate must show the will was made after recovery or during a lucid interval. In such a case the will is regarded with particular distrust and there is, in the first instance, a strong presumption against it, particularly if it displays lack of moral responsibility in the nature of the dispositions:
4 Halsbury's Laws of England, vol 17 at para 904.
[22] The will is apparently rational on its face. The dispositions in it address, in a
rational way, Margaret’s family circumstances, in essentially the same terms as the wills that Margaret and Peter had made earlier, in 2011.
1 Bishop v O’Dea (1999) 18 FRNZ 492 (CA).
[23] The first issue is therefore whether there is some evidence raising lack of capacity as a tenable issue, sufficient to rebut the presumption of testamentary capacity, in accordance with the first of those principles in [3] of Bishop v O’Dea. There must be evidence which raises the possibility that Margaret did not have sufficient understanding of the three matters described in [6] of Bishop v O’Dea.
[24] The threshold to raise a tenable issue is low. I treat the evidence of Dr Sephton that she would have concerns about Margaret’s ability to sign a new will that day as meeting that threshold, to the extent of imposing on the plaintiff the onus of satisfying the Court on the balance of probabilities that Margaret did have testamentary capacity. The evidence suggesting lack of capacity must be considered, along with all of the other evidence relevant to the issue of capacity, in determining whether the onus has been discharged.
[25] I deal first with the medical evidence.
[26] The medical evidence does not indicate any mental incapacity or mental illness which would affect Margaret’s understanding of the three matters referred to. There is some evidence that she had in the past suffered from depression. There is no evidence, medical or otherwise, that the severity of any depression from which she may have suffered was such as to affect her capacity to understand these matters.
[27] There is also evidence that Margaret was on very heavy medication, of many types, at the time. Dr Sephton’s evidence is that the Clonazepam and Morphine medication may have been the cause of the sleepiness which she observed. She also notes a number of side effects of these drugs which include sedation, confusion, hallucinations and amnesia or memory impairment. There is however no evidence that any of these side effects were present in Margaret.
[28] I have held that Dr Sephton’s concerns meet the initial threshold of raising lack of capacity as a tenable issue. However, with no disrespect to Dr Sephton, I do not regard her evidence as strong evidence suggesting lack of capacity. She did not conduct any tests of Margaret’s cognitive ability. That is not her area of expertise. She agreed in cross-examination that it was speculation on her part as to Margaret’s
ability to sign a will that day, but added that if she had been asked whether Margaret was in the right frame of mind to sign the will, she would have recommended some testing. Dr Sephton has, quite properly, raised her concern, but is not able to express an opinion, one way or the other, on the question of testamentary capacity which assists me to determine that question. The medical evidence considered in isolation does not, on my assessment of it, establish that on the balance of probabilities Margaret was not of sound disposing mind.
[29] I must also consider the non-medical evidence about Margaret’s physical
condition, and the surrounding circumstances, when she signed the will.
[30] Margaret was terminally ill and clearly suffering greatly from her illness at the time she signed the will. She was heavily medicated, particularly for pain relief. I accept the evidence of Mrs Voyle, Mrs Helm, and Dr Sephton, of Margaret’s physical state on the day she signed the will. But that evidence does not raise a concern about her testamentary capacity to understand what it was she was doing. None of them describes any symptoms which might indicate any mental incapacity or confused mental state. Margaret’s physical condition does not raise any question as to her capacity and whether she was of sound disposing mind.
[31] The evidence about the circumstances of signing the will does not support the conclusion that Margaret lacked testamentary capacity. Mr Edwards and Mr Vincent observed Margaret when they witnessed her signature. Neither of them describes any symptoms of any mental incapacity or confusion as to her mental state. Mr Edwards had some conversation with Margaret which left him confident that she knew what she was signing. She was coherent and able to talk clearly. While she appeared to him to be physically tired, that did not surprise him because of her state of health. He did not feel she had any lack of understanding as to what she was signing. Mr Vincent said that Margaret was able to hold a conversation and he had no concerns as to her mental well-being or her ability to follow a conversation.
[32] I find in the evidence of Margaret’s physical condition and the circumstances nothing to alter my assessment, based on the medical evidence, that it is more likely than not that Margaret did have testamentary capacity.
[33] Ms McKenzie submits that in determining whether Margaret had the capacity to understand and evaluate the moral claims of those who should have been considered as beneficiaries and the extent to which they should benefit, it is necessary to determine who as a matter of law the deceased had a moral duty to consider as beneficiaries. She submits that Margaret’s daughters are in this category and that their mother had a moral duty to consider the extent to which they ought to receive a benefit from her estate.
[34] The will is on its face a rational distribution. There is nothing in the dispositions which suggests that Margaret did not understand the moral claims of her daughters. Margaret’s daughters were to benefit only if Peter predeceased her. Peter and Margaret were still married. The relationship may have been somewhat “on and off”, and there were clearly rocky patches, which the assault incident clearly demonstrates. Rebecca in her evidence said that the relationship had broken down and Peter was harassing her mother. Her perception of the state of the relationship is not confirmed by the objective evidence. Margaret and Peter had separated in 2008, as the transfer of the Waitara house confirms. But the relationship had resumed. Margaret described Peter as her husband in her February 2011 will. The summary of facts for the criminal charges described them as having been married for approximately 13 years and said the incident happened at their home address in Whangamata. The moral claims of Margaret’s daughters were recognised, as they were named as beneficiaries in the event that Peter predeceased Margaret. The way in which they were recognised does not indicate any irrationality which might reflect upon Margaret’s testamentary capacity.
[35] Ms McKenzie submits that the change from the will made in April 2012 was abrupt. She submits that any difficulties in the relationship between mother and daughter were the result of Margaret’s association with Peter and that the changes from the will made in April 2012 were unfair in displacing Margaret’s daughters as beneficiaries. She submits that Rebecca’s actions were intended only to protect her mother from a man who had violently assaulted her not long before. Rebecca’s evidence is that although she had disagreements with her mother from time to time about minor things, the only real issue or disagreement was over her mother’s relationship with Peter.
[36] The evidence indicates that there had been something of a falling out between Margaret and Rebecca. It is not appropriate to enter into a discussion of the relationships between the various parties, or whether Margaret’s will may be viewed as unfair to her daughters. The fairness of the dispositions in the will is not directly in issue. The dispositions are relevant only for the light they cast on Margaret’s capacity to understand the moral claims to which she ought to give effect when making the testamentary dispositions. Viewed from that perspective, there is nothing in the nature of the dispositions which indicates any lack of understanding of the claims of her daughters. The fact that she had, as recently as April, changed her will in their favour does not suggest that a further change of mind (reverting to what was in essence the disposition of her estate which had previously applied under the February 2011 will) arose from a lack of understanding of the moral claims upon her. Nor does the change suggest an assessment of the merits of those claims which is so irrational as to cast doubt upon the soundness of her disposing mind. Rather, it is consistent with a rational reassessment by her of the way she should provide for those moral claims.
[37] For these reasons, I reach the conclusion that, to the very limited extent that Dr Sephton’s concern raises lack of capacity as a tenable issue, her concern is outweighed by the totality of the evidence, which indicates that the will was the result of the application of a sound disposing mind by the testatrix, despite her terminal illness and consequent fragile physical state.
[38] I find that Margaret did have testamentary capacity when she signed the will on 29 September 2012.
Undue influence
[39] The second ground of challenge is that of undue influence. The relevant principles were summarised by Fisher J in Re Dudley (deceased) in these terms:2
Counsel have helpfully referred me to many authorities concerning the legal tests for testamentary undue influence[.] Notable among these have been Banks v Goodfellow (supra), Hall v Hall (1868) LR 1 P & D 481; Re Annie Nissenbaum (Deceased) [1939] NZLR 94; Wingrove v Wingrove (1885) 11
PD 81 at 82; and Craig v Lamoureux [1920] AC 349. I was not referred to any recent New Zealand authorities but in my view the principles have not changed. They can be summarised in slightly unorthodox but gender-neutral terms as follows:
(a) The key question is whether, because of extraneous pressure from others, the willmaker has signed a will contrary to his or her own wishes.
(b) Persuasion which has left the final choice to the will-maker is not undue influence. Where there is evidence of strong influence or pressure, the Court will approach the question of the will-maker's own wishes with suspicion. However, if satisfied that the will- maker's wishes have not been overborne, and that in the end he or she wanted the will in that form, the Court must uphold the will. In those circumstances the ultimate source of the will is not the external pressures but the exercise of the will-maker's own free judgment.
(c) The onus of proof lies upon the proponent of undue influence.
However direct evidence of undue influence is not to be expected. These cases usually turn upon the strength of the circumstantial evidence. The question is whether from all the surrounding circumstances, with particular emphasis upon the result of the will and the circumstances in which it was actually executed, undue influence is to be inferred.
(d) For this purpose all the circumstances bearing directly or indirectly upon the free will of the will-maker at the time of execution are relevant. These include illness, pain and suffering, physical weakness and mental deterioration falling short of testamentary incapacity. They also include dependency upon others in legal, business, social, medical and/or domestic matters. One should view with special care any powerful need, obligation, or vulnerability on the part of the deceased which others might be in a position to exploit.
(e) However, it is not enough to show that others had the means and opportunity to unduly influence the deceased and that there has been a recent testamentary disposition in their favour. The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.
[40] In Carey v Norton the Court of Appeal held that where there is a relationship of confidence, influence can be undue even if it is not accompanied by any inappropriate intent.3 The focus is on the impairment of judgement rather than the propriety of the conduct of the person exercising the influence. The influence will be undue if it leads to a situation in which the will does not represent the true intentions of the willmaker.
[41] In this case, the evidence is that Peter had extensive involvement in arranging the preparation and execution of the will, as I have described. I must consider whether that level of involvement has merely facilitated the preparation and execution of a will which recorded and implemented Margaret’s intentions, or whether it led to a will which did not represent her true intentions.
[42] There is clear independent evidence of Margaret’s wishes and her intentions close to the time she made her will. She described those to Mr Jury during the course of their trip to Whangarei in July. I have described at [9] his evidence on the point. I found Mr Jury to be a reliable witness. He is independent of the family. The will which Margaret signed accords with her intentions as she advised them to Mr Jury. That is powerful evidence that Peter’s involvement did not result in a will which did not represent her true intentions.
[43] In considering whether there has been undue influence I attach little weight to the April 2012 will, and what Ms McKenzie described as the abrupt change from that will. This must be seen in the context that the April will was itself a change from the February 2011 will, to which the September 2012 will was essentially a return. I am satisfied that the will was not the result of undue influence.
Execution of the will
[44] The third challenge is to the preparation and execution of the will. I have described the evidence about the circumstances in which it was prepared, signed and witnessed. On its face, the will meets the requirements of s 11 of the Wills Act 2007. There is nothing in the evidence which calls into question the way in which compliance with the s 11 requirements was achieved.
[45] This challenge to the will must also fail.
Relief
[46] I must determine the relief to be granted. This is an action for probate in solemn form. Such an action should ordinarily be brought by all of the executors to whom a grant of probate is sought. The executors named are Mr Jury and
Mrs Voyle. The proceeding originally filed was brought in the name of both as plaintiffs. Subsequently, Mrs Voyle apparently indicated that she did not wish to take any part in the proceedings or in the application for grant of probate. An amended statement of claim was filed in which only Mr Jury is the plaintiff. The relief now sought is an order pursuant to s 21 of the Administration Act 1969 discharging Mrs Voyle as administrator, and granting probate to Mr Jury.
[47] There cannot be a grant of probate to Mr Jury alone, unless Mrs Voyle renounces her right to apply for probate.
[48] Section 21 applies only to an administrator as defined in s 2, namely a person to whom administration is granted. Mrs Voyle is not such a person. An order under s 21 cannot be granted.
[49] I consider that the appropriate relief at this stage is a declaration that the will is not invalidated by a lack of testamentary capacity or undue influence, and that the requirements of s 11 of the Wills Act 2007 are met. Application should now be made, in the light of that declaration, for a grant of probate in common form. The application must be made by both executors, or be accompanied by a renunciation by Mrs Voyle, if she does not wish to apply. The application can be processed as an application for probate in common form in the usual way.
[50] Costs are reserved. The parties may submit memoranda.
“A D MacKenzie J”
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