Kingsford v Mathers
[2024] NZHC 2470
•30 August 2024
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2023-470-53
[2024] NZHC 2470
IN THE MATTER OF an application for probate in solemn form BETWEEN
GLORIA JUDITH KINGSFORD as
Executor of the Estate of Cedric Thomas Mathers
First PlaintiffGLORIA JUDITH KINGSFORD
Second PlaintiffAND
JACQUELINE SALLY MATHERS, JOCELYN PAULINE MATHERS and DIANNE PATRICIA WEISSENBORN as
beneficiaries of the Will of Cedric Thomas Mathers
Defendants
Hearing: 15–18 July 2024 Appearances:
S T Scott and G R Keystone for Plaintiff
N S Elsmore for Estate of Cedric Thomas Mathers A M Halloran and R S Brinkworth for Defendants
Judgment:
30 August 2024
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 30 August 2024 at 2 pm pursuant to r 11.5 of the High Court Rules 2016.
Solicitors/Counsel:
S T Scott, Tauranga Kaimai Law, Bethlehem N S Elsmore, Tauranga
Rejthar Stuart Law, Tauranga Pitt & Moore, Nelson
Registrar/Deputy Registrar
…………………………………
KINGSFORD v MATHERS [2024] NZHC 2470 [30 August 2024]
Introduction
[1] This is an application by the plaintiffs seeking the grant of probate in solemn form of a will dated 18 December 2020 (2020 Will) made by Cedric Thomas Mathers. Mr Mathers died at Tauranga on 14 March 2022.
[2] The application is brought by the first plaintiff, Gloria Kingsford, as the named executor. Ms Kingsford was Mr Mathers’ partner and is also one of the beneficiaries under the 2020 Will. Ms Kingsford is also separately named as the second plaintiff in her private capacity, to represent her personal interests and to respond to allegations of undue influence.
[3] The defendants are the three daughters of Mr Mathers, who are also named beneficiaries under the 2020 Will. They oppose the grant of probate for that 2020 Will on the grounds that it should be set aside, and probate instead granted for the previous will executed by Mr Mathers on 19 October 2011 (2011 Will). The three grounds pleaded by the defendants are:
(a)lack of testamentary capacity at the time of the 2020 Will, relying on expert medical evidence as to whether he was cognitively impaired with dementia at that time (presumed to be vascular dementia, given his history of diabetes and peripheral vascular disease);
(b)lack of knowledge and approval, given that the signature of the 2020 Will did not appear to be his usual signature and circumstances raise a suspicion that Mr Mathers may not have truly known and approved of its contents; and
(c)that execution of the 2020 Will was vitiated by undue influence on the part of Ms Kingsford.
Witnesses
[4] The witness evidence in this proceeding was given by the following individuals:
(a)Ms Kingsford and her son Travis Kingsford gave evidence on behalf of the plaintiffs, particularly the relationship between Ms Kingsford and Mr Mathers and his general functional and cognitive abilities around the time the 2020 Will was executed, as well as the reasons for acquiring the Pio Road property.
(b)Jan Turley and Lisa Robb, who worked at the accounting firm Giles & Associates in December 2020, gave evidence about Ms Robb drafting the 2020 Will, and both of them witnessing its execution at their offices on 18 December 2020 (the last working day of the year).
(c)Jacqueline Mathers, Jocelyn Mathers, and Dianne Weissenborn gave evidence as the three daughters of Mr Mathers, about their respective relationships with him and their concerns about his testamentary capacity and cognitive abilities at the time of the 2020 Will, including concerns about undue influence by Ms Kingsford.
(d)Ms Jillian Thorborn gave evidence as a former wife about whether it was usual for Mr Mathers to seek legal advice about any legal documents.
(e)Shirley Patricia Mathers (Pat Mathers) gave evidence as Mr Mathers’ sister-in-law. She had a close relationship with Mr Mathers and lived nearby in Waihi.
(f)Graham Rosborough (Curly Rosborough) was Mr Mathers’ best friend. An affidavit was prepared from him prior to his death about a telephone call immediately following execution of the 2020 Will. His wife, Lynette Rosborough, gave evidence and was cross-examined about her
knowledge of that conversation and the letter to Mr Mathers’ daughters that she typed up for her husband.
(g)Dr Darren Malone and Dr Jane Casey gave expert evidence on the testamentary capacity issues.
Factual background
[5] Below is a summary of the factual background in chronological order, with some of the critical detail considered separately later.
[6] Mr Mathers was born on 10 September 1940. On 7 July 1962, he married Jillian Mathers. They had three children together, who were born between 1963 and 1972. Jocelyn Mathers is the oldest, Jacqueline Mathers is the middle child, and Ms Weissenborn the youngest.
[7] Jocelyn Mathers lives in London and has done so since 1986. She maintained a good relationship with Mr Mathers, albeit being primarily through telephone contact and a holiday together in Vanuatu in 2004. Jacqueline Mathers was the closest of the three to her father. She lives in Granity, South Island, but maintained regular contact through telephone calls and some visits (e.g. to her father in Waihi, or her father visiting Granity, and a holiday together in Vanuatu in 2017). Ms Weissenborn lives in Auckland and was estranged from Mr Mathers. She was only seven years old when her parents separated.
[8] Mr Mathers divorced Jillian Mathers in June 1983. Two years later, he acquired farmland including his home at Golden Valley Road, Waihi. He later married his second wife, Helen Mathers, but divorced her in 1996.
[9] Mr Mathers first met Ms Kingsford in April 2002. They became a de facto couple from June 2003. Like Mr Mathers, Ms Kingsford had been married twice before and had three adult children of her own. She was financially independent and owned several properties in her own name.
[10] In 2003, Mr Mathers and Ms Kingsford went on a 10-day holiday to Port Vila, Vanuatu. While there, they decided to jointly acquire a property in Vanuatu, where they could holiday over the New Zealand winter.
[11] On 11 June 2004, Mr Mathers and Ms Kingsford entered into an agreement pursuant to s 21A of the Property (Relationships) Act 1976, contracting out of the default provisions of that Act. This recognised that they each owned their own separate property, as set out in the schedules to the agreement. The key terms of the contracting out agreement are summarised later below.
[12] In 2005, Mr Mathers and Ms Kingsford bought a section together at Port Havannah in Vanuatu. Ms Kingsford gave evidence this was because Mr Mathers was frustrated that they could not get the boat Silver Mist 2 up the harbour to the cottage when the tide was out.
[13] Throughout their relationship, Mr Mathers and Ms Kingsford kept their finances separate and they accounted for any transactions made on behalf of the other person. They lived separately for the entirety of their 23-year relationship (maintaining separate residences), other than their holidays in Vanuatu and two periods of some six months when Mr Mathers was recovering from his hip operation (May 2009) and from his left big toe being amputated (March 2020).
[14] Prior to the 2020 Will, Mr Mathers had prepared his earlier wills with Michael Curtis, a solicitor who was also nominated as executor and trustee under those earlier wills. The differences between these various wills are summarised later below.
[15] By 2017, Mr Mathers was having increasing difficulties with his health. During August 2017, Jacqueline Mathers spent a holiday with Mr Mathers and Ms Kingsford in Port Havannah, Vanuatu. Her partner accompanied them and carried out significant work on the Vanuatu property, for which Mr Mathers was grateful. Ms Kingsford’s son, Travis Kingsford, also visited for a week during that same holiday.
[16] In 2018, Mr Mathers and Ms Kingsford negotiated the sale of their Vanuatu property at Port Havannah and bought a property at Pio Road, Bowentown, Waihi. They acquired the property as joint tenants, with the transfer to them registered on 27 November 2018. Each of them contributed equally to finance the acquisition, although Ms Kingsford initially paid a higher amount until Mr Mathers could repay her.
[17] Prior to 2019, Mr Mathers’ sister-in-law, Pat Mathers, had assisted him with managing his affairs while he was holidaying in Vanuatu. Pat Mathers had access to and control of his ANZ bank accounts and would manage payments of invoices on his behalf. During 2018 and 2019 these arrangements changed. On 27 September 2018, Mr Mathers recorded in his diary that a new pin was issued, and Pat Mathers no longer had access to his bank accounts. On 9 January 2019, Mr Mathers has recorded in his diary that he gave Ms Kingsford banking authority on 9 January 2019, to pay bills and transfer money for him. The ANZ banking mandate is dated the following day, 10 January 2019.
[18] By 18 September 2019, Mr Mathers needed district nurse care at his home to assist him with cleaning and other household work. By that stage, he was suffering from diabetes complications and vascular problems in his legs and his mobility was adversely affected. By February 2020, Mr Mathers was receiving one hour paid assistance from Disability Support Services.
[19] On 6 March 2020, Mr Mathers had a big toe removed from his left foot. This was shortly before a period of COVID-19 lockdown, which commenced in New Zealand on 25 March 2020.
[20] On 6 April 2020, Mr Mathers recorded in his diary that he was having trouble remembering to take his medication. This is supplemented by evidence on cross-examination from Ms Kingsford that she used to remind Mr Mathers three times a day about taking his medication.
[21] On 16 August 2020, Mr Mathers forgot to call Jacqueline Mathers on her birthday. This is the first time that he had ever failed to do so.
[22] Two days later, on 18 August 2020, Mr Mathers attended a consultation at Waihi Family Doctors in order to gain medical approval for his driver’s licence. However, he failed a Screen for the Identification of the cognitively impaired Medically At Risk Driver (SIMARD) test, scoring 32 out of 130. The medical notes record him being questioned about his cognitive function and he admitted having memory problems for “the last few years”. The doctor took the position that further testing was required to assess whether Mr Mathers should be granted a driving licence.
[23] Accordingly, the following day, Mr Mathers returned to Waihi Family Doctors for another cognitive assessment. The doctor administered a Montreal Cognitive Assessment (MoCA) test, in which Mr Mathers scored 19 out of 30. This indicated a cognitive impairment. The doctor determined that a driver’s licence could not be issued, at least not without undergoing further monitored driving assessments.
[24] On 10 September 2020, the New Zealand Transport Agency (NZTA) wrote to Mr Mathers with notice that his driver’s licence had been revoked, effective from 24 September 2020.
[25] Mr Mathers was distressed by this development and decided to consult a different medical practice. On 14 September 2020, he attended a consultation at Waihi Health Centre.
[26] Meanwhile, on 6 October 2020, Mr Mathers consulted a law firm Clark & Gay about whether he could appeal the revocation of his driver’s licence. Clark & Gay confirmed their engagement and filed a notice of appeal on his behalf, but this was not ultimately pursued because they later found out his driver’s licence had expired anyway, so the matter was dealt with by applying for a new driver’s licence.
[27] On 9 October 2020, Mr Mathers gave his consent for Ms Kingsford to be given the consultation notes and results of his MoCA assessment. On 20 October 2020, Ms Kingsford delivered to his new doctors in Waihi a copy of the Enduring Power of Attorney for Personal Care and Welfare given to her. This suggests that Ms Kingsford might have thought the triggering cognitive and/or physical thresholds were approaching.
[28] On 27 November 2020, a doctor at the Waihi Health Centre found Mr Mathers was medically fit to drive. There was no repeat cognitive assessment other than the doctor’s notes: “oriented in time, place and person...drawing clock acceptable”. The GP found him medically fit to drive and was not concerned that his cognitive function would give problems “to driving at this moment”. He concluded, “I don’t think he has dementia and he is coping well at home”.
[29] On 15 December 2020, NZTA called the Waihi Health Centre about that development.
[30] The critical events surrounding the 2020 Will occurred in the last working days of December 2020. In particular:
(a)Handwritten notes were delivered to Giles & Associates on 17 December 2020 setting out instructions for a new will to be drafted for Mr Mathers. There is no remaining record of these handwritten notes. Ms Kingsford provided the handwritten notes to Giles & Associates. She gave the instructions as an existing client of that accounting firm, whereas Mr Mathers was not. Ms Robb said under cross-examination: “We initially received this, the instructions from her. Like I say I’ve never met him before the day that he had come in and we went over the Will with him.”
(b)On 18 December 2020, Mr Mathers attended at the offices of Giles & Associates and executed his will in front of Ms Robb (an accountant) and Ms Turley (employed at the time as GST manager and assistant accountant). Ms Kingsford says she drove him to the appointment but waited in the car outside. The entirety of the visit occupied between five and 15 minutes, including the accountants showing the draft document to him and explaining it, having him execute an acknowledgement that he was not seeking any independent legal advice, and having him sign the will in front of them. There is no file note or other record of these attendances, other than the will itself.
(c)The resulting invoice dated 7 January 2021 for $150 plus GST for the period ending 18 December 2020 was subsequently issued to Ms Kingsford for “Accounting services”. Payment was made by Ms Kingsford and reimbursed from Mr Mathers’ bank account.
[31] After the 2020 Will was executed, a critical telephone conversation took place between Mr Mathers and his best friend, Curly Rosborough. The detail of that is considered further below.
[32] By 31 December 2020, Mr Mathers had obtained a three-month temporary driver’s licence, subject to him needing to undertake a practical driving test in March 2021 at Thames. His diary records that he passed that practical test on 16 March 2021.
[33] On 15 April 2021, Ms Kingsford made her own new will, drafted by Giles & Associates. Despite what was provided for in the 2004 contracting out agreement, cl 1(c) gave Ms Kingsford’s share of the jointly owned property at Pio Road to her son Travis Kingsford. If survived by Mr Mathers, it provided for him to have a life interest with an option “that he may sell his half share to [Travis Kingsford] at market value and the funds to be divided equally” between her own children (with Travis having a first option of buying out Annette and Zane’s shares). As such, Ms Kingsford’s will was not a mirror of Mr Mathers’ 2020 Will.
[34] On 30 November 2021, Mr Mathers was brought in by ambulance due to acopia (inability to cope at home).
[35] On 13 December 2021, Mr Mathers was admitted to Tauranga Hospital for “increasing confusion”.
[36] In January 2022, the health of Mr Mathers took a dramatic turn for the worse. He was admitted to Tauranga Hospital on 4 January 2022. The discharge summary states the presenting problem was critical leg ischaemia with gangrene, against a background of diabetes and peripheral vascular disease. The discharge summary notes state “Collateral history from [Ms Kingsford] confirmed that [Mr Mathers] has been
experiencing gradual cognitive decline for the past 1–2 years ... After delirium improved, formal cognitive assessment confirmed significant cognitive impairment with an ACE score of 30/100.”
[37] Jacqueline Mathers was not told of this development until some 13 days after his admission to hospital. Ms Kingsford explained that she did not have time to attend to matters such as telling Mr Mathers’ daughters, because she was dealing with her own health issues at the time.
[38]On 18 January 2022, Mr Mathers had his left leg amputated below the knee.
[39] During February and March 2022, Jacqueline Mathers and Jocelyn Mathers tried to call and speak with their father many times, but they were either unable to speak with him, or he was nonsensical.
[40] In an assessment of his capacity on 3 March 2022, Mr Mathers was noted to have no insight into his medical conditions, medications, or his care needs, “no ability to problem solve, no idea about assets/income and no ability to appreciate consequences of returning home”. Before this could occur, Mr Mathers developed a hospital-acquired pneumonia.
[41] On 9 March 2022, Ms Kingsford requested a copy of the last will of Mr Mathers from Giles & Associates, and they emailed a copy to her.
[42] Mr Mathers died in Tauranga Hospital at 3 am on 14 March 2022, at the age of 81 years.
[43] The funeral was held on 18 March 2022. Around the time of the funeral, Ms Kingsford permitted the daughters only a short period in Mr Mathers’ house at Golden Valley Road. There is a dispute about what had become of many of his personal items.
[44] After the funeral, Graham Rosborough sent a typed letter to Jacqueline Mathers explaining the conversation that he had with Mr Mathers about the 2020 Will. This letter was typed up by Lynette Rosborough from her husband’s handwritten notes.
[45] On 23 March 2022, lawyers acting for the defendants wrote to lawyers for Ms Kingsford putting her on notice as to their concerns about the validity of the 2020 Will and seeking confirmation that there would be no distribution from his estate until the validity of the will was established.
[46] On 6 April 2022, Ms Kingsford sent an email to Jacqueline Mathers stating that she did not agree to anything being removed from the house of Mr Mathers at Golden Valley Road.
[47] The plaintiffs’ application for grant of probate in solemn form was lodged in the High Court at Tauranga on 2 May 2023.
Legal principles
Testamentary capacity
[48] The onus of proof that probate should be granted is on the executor named in the will, on the civil standard of the balance of probabilities.1
[49] The principles relating to the assessment of testamentary capacity are well-established:2
(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)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
1 Schuitema v Schuitema [2023] NZHC 1473 at [25], referencing Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [20].
2 At [24], referencing Woodward v Smith [2009] NZCA 215 at [19]; Loosley v Powell, above n 1, at [19]; and Banks v Goodfellow (1870) LR 5 QB 549.
disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
…
(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.
[50]The above criteria are guiding propositions, not a formula.3
Undue influence
[51] The relevant principles for undue influence impacting the validity of a will were set out by the Court of Appeal in Gorringe v Pointon:4
(a)The burden of proof rests upon the party alleging undue influence in the making of a will.5
(b)A person asserting undue influence must show the alleged influence led to the making of the impugned transaction, and that the influence was undue in the sense that the transaction was not the result of the free
3 Loosley v Powell, above n 1, at [19].
4 Gorringe v Pointon [2023] NZCA 42 at [21]–[29].
5 At [21].
exercise of an independent will on the part of the person at whose expense the transaction was made.6
(c)The issue is whether the pressure overbore the will of the testator, so as to overpower volition without convincing the judgement. A testator may be led but not driven.7
(d)Undue influence can be inferred from circumstantial evidence,8 if that explanation is more probable than not (the most likely hypothesis) after evaluating the evidence as a whole.9
(e)An enfeebled testator may be more susceptible to coercion without physical threats.10
[52] In Gorringe v Pointon, the Court of Appeal found that on the balance of probabilities, the deceased was subject to undue influence from her daughter having regard to:11
(a)the fact that the deceased told her grandchildren that her daughter had “bullied” her into the wills;
(b)the age of the deceased at the time (she was 97 years old);
(c)the fact that the deceased was in a “shocked and sad state” having just lost her son;
(d)the deceased’s physical state (frail);
(e)the deceased’s increased reliance on her daughter (in particular in the administration of her affairs);
6 At [24].
7 At [25].
8 At [26].
9 At [27] and [28].
10 At [29].
11 At [65] and [108].
(f)the significance of the change from previous wills without the benefit of legal advice;
(g)the unusual nature of the residue provision in the will and the absence of independent advice on it; and
(h)the daughter’s discussions with the deceased concerning wills along with the daughter’s involvement in arranging the wills.
Calls with Mr Rosborough
[53] In his affidavit sworn on 6 September 2023, Mr Rosborough explains that he knew Mr Mathers for about 50 years before his death and they were good friends. Mr Rosborough died before the hearing.
[54] Mr Rosborough’s affidavit is about conversations he had with Mr Mathers about the 2020 Will. Mr Rosborough was adamant that the first telephone call of that description took place on 18 December 2020, the day after Mr Rosborough’s birthday, which they also discussed on the call. Mr Rosborough was so concerned about the conversation that he said he made handwritten notes straight away, but he did not tell anyone else about it because it was Mr Mathers’ private information. After Mr Mathers died, Mr Rosborough felt the need to share his concerns with Mr Mathers’ daughters, so Mr Rosborough asked his wife to type up his handwritten notes and send a letter to the daughters. This records the following:
Conversation Cedric [Mr Mathers] and I had on the 18/12/20 on our Mobiles Curly [Rosborough]: Howdy Cedric how are you going
Cedric reply: Sorry I didn’t call on your birthday. I'm a day late things have been going down.
Curly: What’s wrong Cedi
Cedric: I’ve been the centre of a conspiracy for the last 18 years. This woman has striped me of all my possessions (assets)and got every thing I own, not leaving a thing for my three girls.
Curly: What do you mean, your telling me Glorias [Ms Kingsford] been in control all this time.
Cedric: Your not wrong, you were right all along. She has cleaned me out more ways than one.
Curly: What makes you say that
Cedric: I’ve just signed my life away to that woman (Gloria) Curly: What can I do for you Cedi, do you need help.
Cedric: I really need help, Gloria is the 3rd woman to clean me out of all my hard work I need help. Please!! Get me some help.
Curly: What do you want me to do .Have you gone to your lawyer, do you want me to phone for a lawyer.
Cedric: Happy birthday for yesterday, I gotta go Gloria is coming must go talk later bro.
[55] Mr Rosborough’s letter to the daughters refers to other subsequent calls between the two friends of a similar nature, including the following exchange:
Cedric: I don’t really know what I’ve been doing for the last 2 years because of all the drugs I’ve been taking. Can you help?
Curly: I’m not a doctor , but I’m here for you
Cedric: This woman has really got her way with me. The way I am going is down hill fast . I won’t even see my 83rd birthday-you know the date 13 Sept. Sorry mate gotta go the (b..ch) is coming. Sorry gotta go.
[56]And the following notes of their last call together:
Curly: Howdy Cedi all good.
Cedric: No not good my health is not good Gloria has really cleaned me out the (B .. ch) has emptied out every thing to her side of the fence. (I can't stop thinking my girls get nothing the (B..ch) has cleaned me out.
Curly: Slow down it cant be that bad, what can I do Cedric: Get me some help please.
Curly: I’ll phone Mike Curtis.
Cedric: Good man do that gotta go the woman is coming. Curly: see you soon bye for now.
[57] At trial, Mrs Rosborough gave evidence about these matters, to explain her involvement typing up the letter to the daughters. She described how Mr Rosborough showed her his handwritten notes and asked her to type them up in a letter to
Mr Mathers’ daughters, dictated by Mr Rosborough. After Mrs Rosborough typed the letter, Mr Rosborough read and signed it, then sent it. Mrs Rosborough also confirmed in evidence at trial that Mr Rosborough’s birthday was 17 December (he was born on 17 December 1945).
[58] The affidavit evidence of Mr Rosborough is hearsay because he was not a witness available for cross-examination at the hearing. Accordingly, his evidence was inadmissible unless it fell within one of the exceptions.12 Section 18 allows a hearsay statement to be admitted in any proceeding if the circumstances relating to the statement provide a reasonable assurance that the statement is reliable,13 and the maker of the statement is unavailable as a witness.14
[59] Both requirements were satisfied, so I admitted Mr Rosborough’s affidavit evidence:
(a)I accepted that the circumstances provide a reasonable assurance that the Mr Rosborough’s evidence is reliable, given his contemporaneous handwritten notes produced in evidence, the letter sent to the daughters while he was still alive, the corroborating evidence from his wife, and the fact that he gave his evidence under oath (in affidavit form).
(b)He is unavailable as a witness because he is dead.
[60] In a joint memorandum filed prior to trial, counsel for the plaintiffs recorded that they oppose the admission of:
(a)para 15 of his affidavit about the value or sale price of various items; and
(b)the alleged date of 18 December 2020 for the first telephone call, because of a lack of corroborating evidence.
12 Evidence Act 2006, s 17.
13 Section 18(1)(a).
14 Section 18(1)(b)(i).
[61] I ruled that I consider those issues to be questions of weight, separate from admissibility. I accept that the inability to cross-examine is also relevant to weight. I do not place any reliance on para 15 of Mr Rosborough’s affidavit, but I do give weight to Mr Rosborough’s evidence that the first call he had with his friend about the 2020 Will took place the day after Mr Rosborough’s birthday. I assess the significance of that against the other evidence relied on by the plaintiffs.
Expert evidence
[62]Two medical experts gave evidence in this proceeding.
[63] Dr Darren Malone gave evidence for the plaintiffs. He is a consultant psychiatrist and psychogeriatrician practising in private practice in Mount Maunganui. He registered as a specialist psychiatrist at the New Zealand Medical Council in 2007.
[64] Dr Jane Casey gave evidence on behalf of the defendants. She is a consultant psychiatrist and psychogeriatrician, employed for the last 23 years at Te Toka Tumai Auckland, Te Whatu Ora Health New Zealand as a specialist in the Mental Health Service for Older People.
[65] Prior to the hearing, the two medical experts conferred and prepared a joint statement. They agree on the following matters:
(a)Mr Mathers suffered with cognitive impairment either a mild neurocognitive disorder or a mild dementia syndrome.
(b)Mr Mathers probably did understand the nature of the act of making a will and its effects.
(c)There is not sufficient documentation to clarify if Mr Mathers adequately understood the extent of his estate.
(d)There is not sufficient documentation to clarify if Mr Mathers was able to fully comprehend and appreciate the claims to which he ought to give effect. Whilst he was aware of his three daughters and his partner,
Ms Kingsford, there is not sufficient documentation in regard to his awareness of the changes between the 2011 and 2020 Wills. Nor is there documentation in regard to Mr Mathers’ rationale for the changes in the distribution of his estate.
(e)There is no evidence of delusions which would influence the disposal of his estate.
(f)There is evidence of risk factors for undue influence. This includes his mild cognitive impairments, deteriorating health, chronic debilitating pain, sleep impairment (secondary to pain), deteriorating mobility, living on his own and the threat to his independence and medical clearance to drive a vehicle.
[66] The disagreement between the two experts was about the degree of impairment at the time of making of the 2020 Will:
(a)Dr Malone’s opinion was that, in December 2020, the contemporaneous records described Mr Mathers functioning independently, living alone, driving a vehicle, and managing his medications and finances. In support of this position is the fact that Mr Mathers was receiving regular visits into his home by district nurses, he was attending regular appointments with hospital clinicians and periods of inpatient assessment and treatment. Those clinicians did not identify concerns about Mr Mathers’ cognitive impairment or level of function. This included a social worker assessment during a hospital admission in late November/early December 2020. Around the same time, clinicians did not have any concerns about Mr Mathers’ capacity to consent to medical treatment, including his refusal to consent to a below knee amputation. Dr Malone assessed that Mr Mathers was probably a forthright and determined gentleman and that his refusal of amputation was his choice. On the basis that impairments were mild at the time of making the will, Dr Malone concluded that, on the balance of probabilities, Mr Mathers retained testamentary capacity.
(b)Dr Casey’s opinion was that, in December 2020, the impact of the cognitive impairment on function cannot be known with any certainty as it was not objectively assessed. There was no functional home assessment of Mr Mathers’ ability to perform instrumental activities of daily living, nor did Mr Mathers proceed to an occupational therapy driving assessment. The history of the impact of the cognitive impairment on his function was primarily obtained from Ms Kingsford or from Mr Mathers himself. Mr Mathers had established impairment in memory and executive function. He minimised the impairments and had impaired insight and judgement. Mr Mathers had a compromised ability to use and weigh relevant medical information and to appreciate the potential consequences of decision-making in relation to his health. Given these deficits, Dr Casey found it probable that Mr Mathers was unable to recall the facts about his property and his autobiographical history, and then use and weigh this information in his working memory, to be able to revise the distribution of his estate in specific proportions for reasons that were clear, rational, and consistent. Therefore, Dr Casey concluded, on the balance of probabilities, that Mr Mathers would not have had testamentary capacity at the time of signing the 2020 Will.
Comparison of wills and contracting out agreement
[67] The contracting out agreement dated 11 June 2004 contains the following terms:
(a)Schedule C listed the relationship property as the deep-sea fishing boat named “Silver Mist 2” and a specified leasehold property in Vanuatu plus chattels there, valued for the purposes of cl 7.1 at $180,000.
(b)Clause 2 defined their separate property as including the assets set out in schs A and B.
(i)Mr Mathers’ separate property in sch A referred to the “lifestyle property situated at Golden Valley Road, Waihi and all chattels
situated thereof”. It also referred to one car, the motor launch “Silver Mist”, any debts owed to Mr Mathers by his children, and any bank accounts, investments, and life insurance policy in his own name.
(ii)Ms Kingsford’s separate property in sch B referred to five residential properties, all shares owned in G & T Property Developments Ltd, three cars, any debts owed to Ms Kingsford by her children, and any bank accounts, investments, and life insurance policy in her own name.
(c)Clause 3 addressed any intermingling by imposing a charge as compensation.
(d)Clause 4 addressed the situation of the de facto relationship ceasing. It provided for separate property to be removed, with the balance to be divided equally.
(a)Under cl 7, both parties agreed to maintain wills that would reflect that the surviving partner shall have the option of purchasing the deceased partner’s interest in the jointly owned property at the partner’s cost price for that asset, within six months of the death of the deceased partner. In the event that both partners passed away, all jointly owned property was to be sold “with [Mr Mathers’] and [Ms Kingsford’s] interests to be credited to their respective estates”.
[68] The following table summarises the key differences between the various wills signed by Mr Mathers:
2007 2011 plus
2016 codicil
2020 Executor and trustee Michael Curtis Michael Curtis Gloria Kingsford Life
interest for Vanuatu properties
Life interest in Vanuatu properties to Ms Kingsford,
then “my interest in the above properties shall fall in and form part of my residuary estate”.
As per 2007 - Specific gifts My boat, tractor and chattels situated in Vanuatu to
Ms Kingsford absolutely.
As per 2007.
Plus Codicil dated 1 April 2015 providing for $500 to Ms Weissenborn.
Golden Valley Road property to be divided equally
between three daughters.
Pio Road to
Ms Kingsford or her estate.Personal chattels to Ms Kingsford, with gift over to
Mr Mathers’ three daughters.
Residue After debts and expenses, to divide the residue in three equal parts to my daughters (with proviso re their children). After debts and expenses, to divide the residue in two equal parts to Jocelyn and
Jacqueline Mathers (with proviso re their children).
After debts and expenses, to hold the balance “upon trust for my trustee”.
Analysis
[69] Much of the cross-examination of Ms Kingsford and the three daughters focused on the quality of their respective relationships with Mr Mathers. I do not regard those issues as particularly relevant to whether Mr Mathers had sufficient testamentary capacity to properly understand and execute his 2020 Will. I accept that Ms Kingsford cared for Mr Mathers during their relationship and the burden of that increased when his mobility was adversely affected, and he suffered cognitive decline. This might explain a decision on the part of Mr Mathers to change his will, as an
acknowledgement of his increased dependence on Ms Kingsford during his latter years. On the other hand, that context is also relevant for assessing the degree of his cognitive impairment and susceptibility to undue influence.
[70] The decisions that Mr Mathers could rationally take about how to provide for his daughters and Ms Kingsford under the will do not necessarily bear any direct correlation with the amount of love and gratitude that he had for each of them. Nor is it this Court’s role in this proceeding to assess the moral appropriateness of his decisions, so long as Mr Mathers had the relevant testamentary capacity and free will to make them.
[71] It is common ground that Mr Mathers was suffering from diabetes and severe peripheral vascular disease during 2020, and vascular disease is likely what caused his severe dementia by the time he died. In March 2020, Mr Mathers’ left big toe was amputated. In the medical assessment on 18 August 2020, he acknowledged that he had noticed issues with his memory for the “past few years”. By the time of his admission to hospital in January 2022, his dementia was severe. The critical issue is the extent to which Mr Mathers was affected by symptoms by the time he executed the 2020 Will on 18 December 2020.
[72] Both experts acknowledge the difficulty of making that assessment accurately when there is a lack of direct evidence. The only medical screening assessments of his cognitive function around that time were the following:
(a)The SIMARD test, conducted on 18 August 2020, is aimed at driving ability rather than testamentary capacity. It assesses immediate recall, number conversion, naming items you would buy at a supermarket (verbal fluency), and delayed recall. Dr Casey explained that a total score of 30 or less indicates a high probability of failing a driving assessment. Mr Mathers scored 32, which the GP considered required further cognitive assessment the following day.
(b)The MoCA test, conducted on 19 August 2020, is a screening tool that can be used for assessing vascular dementia, for which Dr Casey
explained a cut-off is said to be around 17 out of 30. Mr Mathers scored
19. A score of 22 indicates mild cognitive impairment and those with mild Alzheimer’s dementia score less than 20, with an average score of 16 out of 30.
[73] Dr Casey explained the particular breakdown of the performance of Mr Mathers of the MoCA tasks. Mr Mathers was unable to complete some tests (the Trailmaking B test or copy the cube). There was significantly decreased verbal fluency, impaired abstract thinking, and the delayed recall score was zero out of five. Dr Casey observed that these results are clinically significant impairments in both memory and frontal executive function. In Dr Casey’s view, this is particularly significant because of the requirement that the higher cortical processes of memory and frontal executive function are relatively intact in order to have the capacity to decide.
[74] For the capacity to make a will, there also needs to be relative preservation of autobiographical memory, needed to hold and consider facts and recall autobiographical events so as to be able to use and weigh the issues to make a sound decision. Dr Casey observed that such results would normally justify a comprehensive approach of undertaking further investigations such as brain imaging and assessment to clarify the diagnosis. Mr Mathers’ new GP did not take such an approach. Instead, the new GP undertook a superficial assessment only, without repeating any formal cognitive tests. Essentially, the new GP took Mr Mathers’ word that there was no deterioration in function. However, assessing the totality of the evidence, Dr Casey observed that in a clinical setting, both Mr Mathers and Ms Kingsford were “unreliable historians”. In particular, Ms Kingsford minimised the cognitive impairment observed during 2020–2021 but, by the time of his admission to Tauranga Hospital in January 2022, Mr Mathers’ dementia was in fact severe with an ACE-III score of 30 out of 100.
[75] I accept the inference that this adverse performance in the cognitive tests on 18 and 19 August 2020 at Waihi Family Doctors was causatively related to the decision that Mr Mathers should revise his will. Ms Kingsford asserted that the reason they went to her accountant is that they were doing a will service. She also says that
they discussed Mr Mathers redoing his will because he had left Ms Weissenborn out of the 2011 Will, and he wanted to change that as he got older.
[76] The explanation of going to Ms Kingsford’s accountant for drafting of a new will is difficult to understand. Mr Mathers had a history of using the services of his own law firm, who were familiar with the history of his contracting out agreement and previous wills. Even though Mr Curtis had retired by December 2020, other solicitors in the firm were available. They had the proper professional skills as legal advisors to assist Mr Mathers with revising his will. Furthermore, the evidence was that his law firm was running a wills promotion at that time.
[77] In contrast, the evidence of Ms Robb established that she had no particular skills in understanding the effect of the will that she prepared based on precedent documents. This is clear, for example, by the following passage of Ms Robb’s cross-examination:
Q. If I could take you over the page to page 13 and paragraph 5 of that will.
A. Mhm.
Q. If you have a read of that clause there.
A. Mhm.
Q. It’s not clear in terms of the residuary estate, it’s not clear what the trustees are supposed to do with a residue is it?
A. I guess it isn’t, I mean it’s, it’s kind of legal text and I’m not really understanding of it but I mean I guess it kind of does leave it open.
[78]Later on, Ms Robb emphasised the “plug and play” nature of her approach:
A. The Will is a template. So it’s a plug and play. There are gaps and you fill the gap. So it’ll say ‘name’ and you put the name in there, it’ll say ‘occupation’ you put the occupation in there. I don’t believe from looking at this that there would have been any add to this. I believe that clause 5 is the clause –
Q. Is the clause you used for the –
A. – it just goes into every will. We don’t have to change anything. We don’t add anything to that.
Q. So that’s the clause –
A. So that’s the standard clause that is in this template.
Q. – to deal with the stuff that’s not already dealt with above.
A. Right.
Q. So that’s to deal with the rest of the stuff, yep?
A. That’s what I – I mean when I look at it that’s how I understand it.
Q. And that’s the one you use?
A. Right.
[79] There was no suggestion that Ms Robb or Ms Turley had any information about Mr Mathers’ prior wills or contracting out agreement, nor does it appear that they asked any questions about that. I am satisfied that Ms Robb might have explained the basics of the 2020 Will (to the extent she understood it) and Mr Mathers had the appearance of understanding the content and being willing to sign it, but they took no effort to examine these issues carefully. The circumstances of the failed cognitive impairment tests in August 2020 required more.
[80] Given his age and evident health issues, at the very least they should have kept evidence of their instructions and taken a file note about their discussions with Mr Mathers. I accept the defendants’ submissions that if lawyers had been engaged for the task, they would have done so, and they would have provided proper advice about the meaning and effect of the will, including ascertaining the reasons for Mr Mathers wanting to change it, to better substantiate his intentions and testamentary capacity. In the five to 15 minutes spent at the accounting firm, it seems clear that there was no discussion to establish that Mr Mathers understood and could explain the 2020 Will in his own words.
[81] To the contrary, I find the evidence of Mr Rosborough and his wife compelling that Mr Mathers was confused about the effect of the 2020 Will and believed that it did not reflect his wishes (to the extent he understood those matters). There is an inconsistency in Mr Mathers telling his friend that he was “not leaving a thing for my three girls” when the 2020 Will did provide for the distribution to them of his Golden Valley Road property. This supports the argument by the defendants that he was cognitively impaired, such that he did not properly understand the dispositions provided for in the document.
[82] I acknowledge that counsel for the plaintiffs were unable to cross-examine Mr Rosborough about the date of that telephone call. I nevertheless accept his evidence as reliable, given that he had good reason to recall the specific date because it was the day after his birthday and this fact was specifically discussed with his friend, as recorded in his contemporaneous handwritten notes. Furthermore, if this conversation had not taken place, Mr Rosborough would not necessarily have known that Mr Mathers had executed a new will, nor the date that this took place. Although Ms Kingsford suggested that Mr Rosborough might be lying out of jealousy because he received nothing under the will, I reject that entirely. To the contrary, the evidence of Mr Rosborough and his wife under oath is credible because they are independent and do not have any vested interest.
[83] Counsel for the plaintiffs argued that the diary records kept by Mr Mathers seemed to constitute a full inventory of all telephone conversations that he had with his friend Mr Rosborough, and there is no entry for a telephone call between them on 18 December 2020. I do not place any weight on this, because I do not accept that the diary records are necessarily comprehensive in that way. In addition, Mr Mathers may have been reluctant to record this call in his diary, given that it was left on a table in his house, which Ms Kingsford could access.
[84] In terms of assessing whether the 2020 Will reflected the true intentions of Mr Mathers, I accept that Ms Kingsford provided care and support for Mr Mathers in his later years, and this could have been a motivation to change his will. However, this must be balanced against other evidence that he had been determined to maintain his assets separately after the ordeal of dissolving his first two marriages. This is reflected in his contracting out agreement and their meticulous efforts to keep their respective assets separate, including keeping their own bank accounts and accounting to each other for any expenditures on behalf of the other, subject to limited exceptions in respect of joint property (primarily that held in Vanuatu). In his previous wills, read along with the contracting out agreement, he was clear in his intention that his separate assets and interests would be left for the benefit of his daughters (or at least two of them) and not handed over to Ms Kingsford and her descendants. At the time of the 2020 Will, Jocelyn Mathers lived in a Council flat and received the equivalent of a sickness benefit, afflicted by significant health issues arising from a young age.
Jacqueline Mathers also lives modestly and could not afford regular travel to visit her father. Unlike her two sisters who do need the financial support, Ms Weissenborn confirmed that she has no need for any of Mr Mathers’ assets, so she opposes grant of probate for the 2020 Will despite the significant personal benefits she would receive under it. As for Ms Kingsford, she already had her own independent wealth from which she planned to provide for her three adult children. At the end of 2020, Ms Kingsford had her own separate property and bank savings worth in excess of
$6 million. This was around three times the value of Mr Mathers’ assets.
[85] The plaintiffs referred to other factual matters, showing that Mr Mathers was strident and competent in other respects. For example, he made detailed diary entries about the steps he took to regain his driver’s licence, and he passed a practical test for that in March 2021. He continued to live alone and had many clinicians and visitors who did not raise any concerns that he was suffering from dementia. As all counsel and the experts acknowledged, cognitive impairment must be assessed by function, so the fact that he could physically drive and continue to live alone does not substantiate testamentary capacity. Someone who is cognitively impaired can be very strident on some issues but remain susceptible to confusion and manipulation. The fact that Mr Mathers was a robust and decisive person before his cognitive impairment is beside the point.
[86] Ultimately, the onus is on the executor named in the will to establish testamentary capacity on the civil standard of the balance of probabilities and I am not satisfied that the onus has been discharged on the facts. I prefer the evidence of Dr Casey that, on the balance of probabilities, Mr Mathers would not have had testamentary capacity at the time of the signing of the 2020 Will, because he was suffering from a cognitive decline later diagnosed as dementia.
[87] Given my finding that Mr Mathers lacked testamentary capacity to make the 2020 Will, it is not strictly necessary for me to determine the undue influence claim. However, for similar reasons I am satisfied on the balance of probabilities that the 2020 Will was procured by the undue influence of Ms Kingsford. This is a circumstantial inference that I consider to be the most likely explanation, taking into account the following:
(a)Mr Mathers was susceptible to undue influence because of his cognitive impairments, deteriorating health, chronic debilitating pain, sleep impairment (secondary to pain), deteriorating mobility, living on his own, and the threat to his independence when his driver’s licence was revoked.
(b)Mr Mathers was dependent on Ms Kingsford for matters such as shopping, management of his finances and legal affairs, and remembering to take his medication.
(c)After Mr Mathers had scored poorly on the SIMARD and MoCA tests, they could both anticipate that any cognitive decline would continue.
(d)This seems to have precipitated Ms Kingsford discussing his will with him. The 2020 Will was drafted and executed with some urgency, signed within a day of instructions being received and on the last working day of the year, in contrast with Ms Kingsford’s will, which was not signed until many months later.
(e)Despite Ms Kingsford being expressly aware of questions concerning his cognitive capacity, she took no steps to have him examined for testamentary capacity as part of the will execution process, nor did she alert her accountants about these issues.
(f)Ms Kingsford argues that a motivating factor for changing the will was to provide equally for his three daughters. However, the increased provision for Ms Weissenborn came at the expense of his other two daughters, who had much greater financial needs. Mr Mathers had already considered those issues when executing a codicil in 2016 with the benefit of legal advice, and there was no credible factual explanation for why he would revisit that (Ms Weissenborn remained estranged with no wish to benefit under the will, whereas Mr Mathers maintained good relationships with his other two daughters).
(g)The other changes favoured Ms Kingsford and her children. They constituted a dramatic departure from the position taken in his previous wills and the contracting out agreement, yet Mr Mathers did not receive any legal advice about those matters, whereas he had received legal advice on all prior occasions. The individuals in Ms Kingsford’s accounting firm who prepared the will and witnessed it had no knowledge of this change in position and took no steps to ask. They took instructions from and invoiced Ms Kingsford as their client.
(h)There is no independent evidence to substantiate who wrote the instruction document, since it was not retained. In any event, the document was delivered by Ms Kingsford, and any discussions about drafting took place with her and not Mr Mathers. On any view, Ms Kingsford had a close involvement in procuring the new will.
(i)I accept as credible the evidence of Mr and Mrs Rosborough that Mr Mathers called his friend immediately after the 2020 Will was signed and said it did not reflect his wishes. That initial call and subsequent ones, as quoted in [54]–[56] above, record Mr Mathers’ perception that he had been overborne by Ms Kingsford, rather than him being convinced about the merits of any changes.
Jurisdiction and land law issues
[88] In their closing submissions, counsel for the defendants sought the Court’s comment on two issues:
(a)whether the value of Mr Mathers’ interest in the Vanuatu properties owned with Ms Kingsford (i.e. a half share of the two sections) can be taken into account by a New Zealand court even if the property transfers by survivorship to Ms Kingsford in Vanuatu; and
(b)whether Mr Mathers and Ms Kingsford intended their joint property interests to be dealt with by the laws of survivorship (given this contradicts the terms of their contracting out agreement, their wills, and Ms Kingsford’s own diary notes).
[89] Those matters are not for determination in this proceeding, which solely concerns the grant of probate rather than any ascertainment of the estate’s assets.
[90] In the hearing, I referred to authority that the court has jurisdiction to deal with questions concerning foreign land arising in the context of administration — this being a recognised exception to the Moçambique rule that excludes the court’s jurisdiction over foreign land.15 In other words, this Court regards itself as having jurisdiction to determine whether such assets are validly devised under a will governed by New Zealand law.16 However, this could not override the existence or otherwise of the asset. Without the benefit of legal submissions on the point, I would expect that if the interest in land has transferred by survivorship in Vanuatu, then there is no remaining asset to be distributed under the terms of the will. Schumacher v Summergrove Estates Ltd concerned different issues of the most appropriate forum for a constructive trust claim, based on whether it should be classified as in rem or in personam.17
[91] On the evidence before me, I readily accept that neither Mr Mathers nor Ms Kingsford seemed to understand that their joint property interests would be dealt with by the laws of survivorship. It seems that was, nevertheless, the type of land interest that they registered. Interests in land give rise to indefeasibility, which raises issues beyond mere cancellation or rectification. No such applications were before me.
15 Maria Hook and Jack Wass (eds) The Conflict of Laws in New Zealand (online ed, LexisNexis) at [8.29], referenced in Marsh v Bell [2024] NZHC 1073 at [13].
16 Enforcement of any such decision about the will would raise a question of recognition and enforcement in that foreign jurisdiction.
17 Schumacher v Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599.
Result
[92]I make the following orders:
(a)Order declaring the will dated 18 December 2020 invalid on the ground that the testator lacked testamentary capacity and/or it was procured by undue influence.
(b)Order granting probate of the will dated 19 October 2011.
(c)Order appointing Michael Godfrey Bruce Curtis of Waihi (former solicitor, now retired) as administrator of the deceased’s estate.
[93] If costs cannot be agreed, then the defendants may file a memorandum on costs within 15 working days, and the plaintiffs may file a memorandum in reply 15 working days later.
O’Gorman J
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