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…

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 Killens v Killens

Details

AGLC: Killens v Killens [2024] NZHC 3998
Case: [2024] NZHC 3998
Decision Date: 20 December 2024

CaseChat Overview and Summary

Christine Judith Killens, Ian Robert Killens, and Virginia Mary Mills, the executors and trustees of the 2019 will of the deceased, Florence Esther Foden, sought probate of the 2019 will. Christine Judith Killens opposed the application, asserting that Ms. Foden lacked testamentary capacity when executing the will and a codicil to her 2010 will. The court needed to determine whether Ms. Foden had testamentary capacity at the time of executing the 2019 will and the codicil. Testamentary capacity was assessed based on whether Ms. Foden understood the nature of the act and its effects, comprehended and appreciated the claims to which she ought to give effect, and was free of any disorder of the mind that would affect her decision-making.

The court considered evidence from Ms. Mills, Ms. Foden's solicitor, and Dr. Jan White, Ms. Foden's general practitioner, who both assessed Ms. Foden as having testamentary capacity in October and November 2019. Dr. Casey, a geriatrician, concluded that Ms. Foden lacked testamentary capacity when assessed on 10 January 2020. The court found that Ms. Foden had testamentary capacity on 3 December 2019, based on Dr. White's earlier assessments, rational instructions to Ms. Mills, and Ms. Foden's understanding of her property. However, the court was not satisfied that Ms. Foden had testamentary capacity when she executed the codicil on 20 January 2020.

The court granted probate in solemn form of the 2019 will dated 3 December 2019, reserving leave to apply.

Orders