Kingsford v Mathers - [2024] NZHC 2470

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 Plaintiff

GLORIA JUDITH KINGSFORD
Second Plaintiff

AND

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…

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 Kingsford v Mathers

Details

AGLC: Kingsford v Mathers [2024] NZHC 2470
Case: [2024] NZHC 2470
Decision Date: 30 August 2024

CaseChat Overview and Summary

The case of Kingsford v Mathers involved an application for the grant of probate in solemn form of a will dated 18 December 2020 made by Cedric Thomas Mathers, who passed away on 14 March 2022. The application was brought by Gloria Judith Kingsford, as the named executor of the will and a beneficiary, and opposed by Mathers’ three daughters who sought to have the 2020 Will set aside and probate instead granted for the previous will executed by Mathers on 19 October 2011. The daughters argued that Mathers lacked testamentary capacity at the time of the 2020 Will due to cognitive impairment, lacked knowledge and approval of the will's contents, and that the execution was vitiated by undue influence on the part of Kingsford. The court had to decide whether Mathers had testamentary capacity at the time of signing the 2020 Will and whether undue influence was exerted by Kingsford. The court found that Mathers lacked testamentary capacity at the time of executing the 2020 Will due to cognitive impairment, as evidenced by his performance on cognitive assessments in August 2020 and his subsequent severe dementia. The court also found that the 2020 Will was procured by undue influence from Kingsford, considering Mathers' susceptibility due to his cognitive impairments and health, his dependence on Kingsford, and the lack of proper advice during the will's drafting and execution. Consequently, the court declared the 2020 Will invalid and granted probate of the 2011 Will, appointing Michael Godfrey Bruce Curtis as the administrator of the estate. If costs could not be agreed upon, the defendants could file a memorandum on costs within 15 working days, followed by a reply from the plaintiffs 15 working days later.

Orders