Killens v Killens

[2024] NZHC 3998

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2153

[2024] NZHC 3998

IN THE MATTER

of the Estate of Florence Esther Foden

BETWEEN

CHRISTINE JUDITH KILLENS, IAN ROBERT KILLENS and VIRGINIA MARY MILLS

Plaintiffs

AND

CHRISTINE JUDITH KILLENS

Defendant

Hearing:	4 December 2024
Appearances:	M K Headifen for Plaintiffs
Judgment:	20 December 2024

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 20 December 2024 at 3.15 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Duggan & Murphy, Auckland Counsel:  M K Headifen, Auckland

KILLENS v KILLENS [2024] NZHC 3998 [20 December 2024]

Introduction

[1]    The plaintiffs are the executors and trustees of the will of Florence Esther Foden (deceased) of 3 December 2019 (“executors and/or trustees” and “2019 will”). Ms Foden died in Auckland, aged 93, on 3 October 2023.

[2]    The plaintiffs are, in order, Ms Foden’s niece Mrs Killens; Mrs Killens’ husband, Mr Killens; and Ms Mills, solicitor of Auckland.

[3]    The plaintiffs seek probate in solemn form of the 2019 will, failing which of another testamentary instrument referred to below.

Background

[4]There are three testamentary instruments before the Court.

[5]    The first is a will that Ms Foden made on 7 October 2010 (“2010 will”). This will was taken by Ms Foden’s solicitor at the time, Mr Sean Kelly, a solicitor then practising in Mt Eden, Auckland.  I  am  informed  by  counsel  for  the  plaintiffs, Mr Headifen, that Mr Kelly died some time ago.

[6]    Mrs Killens is the executrix and trustee of the 2010 will. By her 2010 will, Ms Foden divided her residuary estate in unequal shares, between Mrs Killens (who received a greater share) and Mrs Killens’ three siblings.1 The principal asset in the estate, then and now, was Ms Foden’s residential property in Mt Eden (“property”).

[7]    In 2019, Mrs Killens took Ms Foden to see Ms Mills in late-October 2019. As I understand it, Ms Mills was the family solicitor for Mr and Mrs Killens. Ms Foden and Ms Mills met on their own.

[8]    Ms Foden advised Ms Mills that she wished to make a new will and she gave Ms Mills instructions accordingly. Ms Mills then prepared the 2019 will. Ms Foden

1      The executors have served all of those directed by the Court to be served. None of those so served has taken a step in this proceeding.

executed the 2019 will at a subsequent meeting at Ms Mills’ office on 3 December 2019.

[9]    By her 2019 will, Ms Foden gave certain directions to her trustees as to occupation of the property, these directions to be followed at the date of her death. This will also gave Mrs Killens an option to purchase the property from the estate, at market value. Absent the exercise of that option, the property was to be sold and the proceeds of sale distributed. Ms Foden also adjusted the shares each beneficiary would receive in her residuary estate. Again, Mrs Killens was to receive a greater share than other beneficiaries.

[10]   The third testamentary instrument is a codicil expressed to be to the 2010 will. Ms Foden executed the codicil on 20 January 2020. The codicil varied the 2010 will, by incorporating the direction regarding occupation and the option to purchase contained in the 2019 will.

Testamentary capacity

[11]   The issue which arises, and which the executors have put before the Court, is whether Ms Foden had testamentary capacity at the time she executed the 2019 will and/or the codicil.

[12]   To assist in determining this issue, I have the executors’ statement of claim of 25 June 2024, their affidavit of 17 June 2024, and an affidavit of Ms Mills of 19 June 2024. I have also had the benefit of written and oral submissions from Mr Headifen.

[13]   The starting point is that a testator or testatrix is presumed to have testamentary capacity at the time of making a testamentary instrument. However, if doubt arises:2

[19]      The celebrated judgment ... in Banks v Goodfellow ... remains the leading authority on testamentary capacity. We paraphrase ... the propositions stated in that case ...:

(1)Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will

2      Woodward v Smith [2009] NZCA 215, citing Banks v Goodfellow (1870) LR 5 QB 549 at 565– 568.

(2)It is essential to the exercise of such a power that a testator:

[i]understands the nature of the act and its effects; and also the extent of the property of which he is disposing;

[ii]is able to comprehend and appreciate the claims to which he ought to give effect;

[iii]be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

(3)Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But

[i]though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.

[ii]It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.

(4)It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.

(5)In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.

(6)A testator who has reflected over the years on how his property should be disposed of by will is likely to find it

less difficult to express his testamentary intentions than to understand some new business.

(7)Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all;

(8)Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.

(9)But if that standard is not met, he will lack capacity.

Evidence

[14]   In her affidavit, Ms Mills states that Mrs Killens brought Ms Foden to her office on 30 October 2019, following which she met Ms Foden alone. Ms Mills’ file note of their meeting records that Ms Foden gave a comprehensive account of her family background, and gave Ms Mills instructions regarding the preparation of a new will.

[15]   Following discussion with Ms Mills, Ms Foden’s instructions were that she wished to recognise all of her nieces and nephews but with 75 per cent of the value of her estate to go to Mrs Killens. She also instructed Ms Mills regarding the option to purchase referred to above. Ms Foden told Ms Mills that Mrs Killens and her husband had shown her great kindness and their care had meant she did not need to go to a rest home, which Ms Foden wished to avoid.

[16]   Ms Foden signed Ms Mills’ file note, confirming its accuracy, at a subsequent meeting on 3 December 2019.

[17]   Ms Mills records in her affidavit that, during the 30 October 2019 meeting, she was shown a letter, of 22 October 2019, from Ms Foden’s doctor, Dr Jan White of Mt Eden. In her letter, Dr White stated that Ms Foden was her patient, in sound mind, and able to execute a document pertaining to a power of attorney.

[18]   As Ms Mills states, Dr White did not expressly address the issue of Ms Foden’s testamentary capacity but, in my view, the reference to Ms Foden being of sound mind, and able to execute a document pertaining to a power of attorney is important. It indicates to me that Dr White would have assessed Ms Foden as having testamentary capacity at that time.

[19]   Ms Mills goes on to say that, at the time of receiving Ms Foden’s instructions, she recalls that Ms Foden understood the property to have a value of $200,000 rather than what Ms Mills believed to be closer to the value, of $2 million. This is not recorded in the file note. Regardless, accepting that discussion took place, it is clear that Ms Foden knew her house was her only asset of consequence, and her instructions as to the distribution of her estate remained unchanged.

[20]   Following that October 2019 meeting, Ms Mills requested a further assessment from Dr White. On 11  November 2019,  Dr White wrote that  she had again  met  Ms Foden, on her own, and believed Ms Foden to be of sound mind. Dr White also stated that she considered Ms Foden had made decisions regarding her estate of her own volition.

[21]   Ms Foden returned to Ms Mills’ office on 3 December 2019. It is clear from Ms Mills’ note that she advised Ms Mills that the beneficiaries, other than Mrs Killens, might become disgruntled. Ms Foden advised however that she had considered the position carefully and her wishes remained unchanged. Ms Mills also states that she (again) discussed with Ms Foden at this meeting the value of the property and what the various shares would be in real terms if it realised $2 million. Ms Mills states that Ms Foden was “not interested” and was adamant that she wished Mrs Killens to “get the property”. This was because it was Mrs Killens, and Mrs Killens alone, who was looking after her.

[22]   Ms Mills then advised Ms Foden that she wished to refer Ms Foden to a     Dr Casey, a geriatrician, for further assessment. Ms Foden did not particularly object, although said that she did not wish to do any more “puzzles”. This statement indicates to me that Ms Foden understood the purpose of the assessment, which she attended with Dr Casey on 10 January 2020.

[23]   After examining Ms Foden, Dr Casey came to the conclusion that Ms Foden did not have testamentary capacity at that time.

[24]   Also, Ms Mills obtained further information from Dr White regarding her consultation with Ms Foden on 4 November 2019. Ms Mills considers that information called into question Ms Foden’s capacity at that date. Even then, however, Dr White’s opinion, based on her discussions with Ms Foden, was that Ms Foden “knew what she was doing and had made her mind up without coercion”.

Discussion

[25]   On the evidence before me, and taking into account all of the matters referred to  in  [13]  above,  I  am  satisfied  that  Ms  Foden  had  testamentary  capacity  on  3 December 2019.

[26]   First, I set store by Dr White’s opinions to the effect that Ms Foden had capacity in October and November 2019. Dr White was Ms Foden’s general practitioner, and she had been for some time. Dr White knew Ms Foden well. Her opinions must therefore be given considerable weight.

[27]   Secondly, Ms Foden’s instructions to Ms Mills as to the disposition of her residuary estate were rational. Ms Foden was an elderly woman. Mr and Mrs Killens were caring for her (as they had for many years, on the basis of Ms Foden’s advice to Ms Mills), with the consequent result that Ms Foden was not required to relocate to a rest home.

[28]   Thirdly, Ms Foden understood that the asset she owned of consequence was her property. That Ms Foden may not have appreciated the market value of the property at the time is not surprising. There is no particular reason why an elderly person, approaching 90 years of age, should know the value of their home, or even be interested in that value. Moreover, when  informed  of  the  value,  and  also  that Mrs Killens’ siblings might become disgruntled at the inequality, Ms Foden remained determined in her instructions.

[29]   In those circumstances, I am satisfied that Ms Foden had testamentary capacity as of 3 December 2019.

[30]   This brings me to  the codicil; Ms Foden’s appointment with Dr Casey on   10 January 2020; and Dr Casey’s opinion that Ms Foden did not have testamentary capacity at the time of that appointment.

[31]   I bear in mind that Ms Foden was meeting Dr Casey for the first time at the January 2020 appointment, and presumably in unfamiliar surroundings. These matters may have affected the manner in which Ms Foden presented to Dr Casey. On the other hand, Dr Casey is a geriatrician. In formulating her opinion, Dr Casey will no doubt have taken into account the effect that unfamiliarity of circumstance and surroundings may have on an elderly person. Given that, on the evidence before me, I am unable to be satisfied that Ms Foden had testamentary capacity when she executed the codicil on 20 January 2020.

Conclusion

[32]   For the reasons given above, I am satisfied that Ms Foden had testamentary capacity when she executed her will on 3 December 2019. I am not so satisfied in respect of the codicil executed on 20 January 2020.

[33]   I thus make an order granting probate in solemn form of the will of Florence Esther Foden dated 3 December 2019.

[34]I reserve leave to apply.

Peters J