Lane v Li
[2024] NZHC 3663
•6 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-1265
[2024] NZHC 3663
BETWEEN JAMES TO’ESE LANE
Applicant
AND
XINFENG LI, VINCENT JEFF TAN, JED LANE TAN, TANIA BERNADETTE LANE, ALOMA ELISA LANE and DYLAN
SMITH by his litigation guardian Respondents
Hearing: 11/12 November 2024 Appearances:
T D Bloy & T K Cunningham-Adams for Applicant A M Swan for First and Sixth Respondents
C J C McLean & W H Prior for Second Respondent
Judgment:
6 December 2024
JUDGMENT OF CHURCHMAN J
Table of Contents
The people involved in these proceedings................................................................... 7
Capacity..................................................................................................................... 28
The making of the will............................................................................................... 32
Significance of the notes............................................................................................ 51
Comparison between the 4 April notes and the 8 April will...................................... 58
The involvement of Paul Young................................................................................. 75
The will...................................................................................................................... 97
Medical evidence re capacity................................................................................... 129
Legal test for capacity.............................................................................................. 177
Analysis.................................................................................................................... 183
Conclusions on capacity.......................................................................................... 200
Undue influence....................................................................................................... 202
Outcome................................................................................................................... 238
Costs......................................................................................................................... 239
LANE v LI & Ors [2024] NZHC 3663 [6 December 2024]
[1] Frank John Lane (Frank) died on 6 May 2023. He was two days short of his 79th birthday when he died. This case is about whether Frank’s will was valid.
[2] Frank was not married nor in a de facto relationship when he died. He had six children. In order from eldest to youngest the children are: Tania Bernadette Lane (Tania), Petaia Lane (Petaia), Aloma Elisa Lane (Aloma), James To’Ese Lane (James), Jed Lane Tan (Jed), and Vincent Jeff Tan (Vincent).
[3] On 14 December 2010 Frank had made a will. That will appointed Frank’s mother, Zillah Marion Scott (since deceased) as executor. In the event of her death prior to Frank’s death, the will appointed James as the sole executor and trustee. After payment of just debts, funeral and testamentary expenses, that will left the residue of the estate in equal shares to five of Frank’s children, leaving out Petaia.
[4] On 8 April 2023, some four weeks before his death, Frank made a new will (the 2023 will). That will appointed James his executor and trustee, gave $500,000 to Xinfeng Li (Lily), bequeathed a property at 9 Fourth Avenue, Kingsland to James, a property at 16 New Bond Street, Kingsland to Vincent and directed that the residue be divided equally among Vincent, Jed, Dylan Smith (Dylan) and James. The will made no provision for Tania, Petaia, or Aloma.
[5] Because of concerns as to lack of testamentary capacity and undue influence in relation to the 2023 will James, as executor, commenced proceedings placing both wills before the Court and seeking a declaration as to which will was valid.
[6] The two issues for the Court to determine in this case are whether Frank had testamentary capacity at the time of making the 2023 will and whether he was the subject of undue influence in relation to the making of that will.
The people involved in these proceedings
[7] Before turning to discuss the evidence relevant to the issues of capacity and undue influence, it is helpful to give some description of the various characters involved. Frank had a number of relationships and fathered children with three different women. Tania was the daughter of his first marriage, Petaia, Aloma and
James were the children of his second marriage and Jed and Vincent were the children of a third relationship. Their mother never lived together with Frank.
[8] Tania’s evidence was that Frank liked to have sexual relations with a number of women and that between 2005 and 2017 he had multiple such relationships. One of those relationships was with Lily. Lily was considerably younger than Frank.
[9] Lily’s evidence was that she met Frank in 2004 and that she had a sexual relationship with him that lasted about nine years. She accepts that she never lived with Frank at any stage. She says her sexual relationship with Frank ceased when she married. She did not give a date for her marriage, but Tania put that as being ‘two decades ago’.
[10] Lily has a daughter from her marriage. Frank is not the father of that child. After Lily’s marriage ended she had a further domestic relationship which was still continuing at the time of the hearing of this matter although Lily said that, despite the fact she and her partner lived in the same house, she had ‘little contact’ with him. There is one child of that relationship, Dylan, who is the sixth named respondent in these proceedings. Frank was not the father of that child either.
[11] Tania’s account of the relationship between Frank and Lily confirmed some aspects of Lily’s evidence but put a different perspective on the relationship. She said that Frank was a driver for Lily and many other female friends and used to drive them to a massage parlour where they worked as escorts. She acknowledged that Frank and Lily had a sexual relationship during the early years after they met but expressed the view that those relations were ‘transactional in nature’ as they occurred during the time that Lily was working in the sex industry.
[12] Tania’s evidence was that Frank and Lily had a ‘friendly but unusual relationship’. The aspects of that relationship referred to by Tania were Frank helping Lily with her English during the early stages of their friendship (Lily is Chinese and her native tongue is Mandarin); Frank coaching Lily on ‘getting rich husbands’; and Frank assisting Lily to move from the sex industry to ‘recreate herself’ by helping her with her studies towards the nursing qualification Lily eventually obtained.
[13] Tania’s evidence was that Lily had never once stayed overnight with Frank and that, whenever she met with Frank, it would always be somewhere other than Frank’s house such as at a local restaurant, as Lily found Frank’s house to be dirty and unsanitary.1
[14] The fact that Frank and Lily had a friendship was confirmed by Frank’s family members as well as two non-family members. Maraea Dillon filed an affidavit in support of Lily. She deposed that she had known Frank for approximately 35 years, having attended intermediate and secondary school with Tania.
[15] She said she had known Lily for around seven years. She reported seeing Lily at lunches and dinners with Frank and some of his children and noted that James would drive Lily around and often took Dylan to school.
[16] She also confirmed that Frank had helped Lily financially into training to be a cosmetic nurse. She noted that a short time after Frank died she found out that he had left some money to Lily and Dylan and says that she ‘…expected that because that’s what he told me he was going to do’. Maraea Dillon was required for cross-examination and her evidence to the Court differed significantly from her written brief. She confirmed that, at the time she signed the brief in support of Lily she did not know that Frank had left Lily $500,000 in the 2023 will. She said that this came as a surprise to her because what she had been aware of was Frank’s intention to leave ‘something just for education, nothing of that substantial amount…’. She confirmed that by education she was talking about Dylan’s university fees.
[17] She also indicated that when she found out Lily may received $500,000 she became concerned. She expressed the reasons for her concern as being that Frank and Lily ‘weren’t in any sort of relationship and she was just a friend…’.
[18] Tevita Filimoehala also filed an affidavit in support of Lily. He said he had known Frank for approximately 35 years and Lily for some 15 years. He had seen
1 The dirty and unsanitary nature of Frank’s house was noted in the assessment of Dr Read-Smith following Frank’s self-discharge from hospital against medical advice on 15 April 2023. An ambulance crew called to the house the day following Frank’s discharge described the house as being ‘messy, unclean, unhygienic, and unsafe for living.’
Lily and Frank together from time to time. His evidence was that ‘Frank and Lily had a very strong friendship over those years’ and that Frank was fond of Dylan.
[19] He also indicated that after Frank’s death he learnt that ‘…he had left some money to Lily and Dylan and was not at all surprised at this’. He was not required for cross-examination. There is no indication he knew how much money had been left to either Lily or Dylan.
[20] There are some potentially significant features about Frank’s children. A number seem to either suffer from or have suffered from serious health issues. Several were or had been in receipt of some form of benefit with only Tania and Jed currently seeming to be in regular conventional employment and the only evidence that any of them owned their own home related to Tania. Jed, Petaia, James and Vincent, were, at the time of Frank’s death, dependant on Frank for accommodation.
[21] Frank’s relationship with his children was complicated. Although Tania lived in Melbourne Frank kept in contact with her and their relationship appears to have been positive. Tania described herself as a trainee bus driver in her affidavit. It appears that she previously had, at some stage, been a beneficiary. Her affidavit of 26 September 2023 confirmed that she was registered as a lawyer with the Supreme Court of the state of Victoria although currently not practicing.2
[22] Petaia is autistic and unable to live independently. Petaia resided with Frank at 16 New Bond Street, Kingsland. He is about 45 years old.
[23] Aloma resides in Christchurch and is currently unemployed. It appears that she had little contact with Frank for some 20 years.
[24] James had a close relationship with Frank and variously resided with him at 16 New Bond Street or at the other property Frank owned at 9 Fourth Avenue,
2 Although Lily did not dispute Tania’s evidence on this point in any of the three affidavits she filed, under cross-examination, she claimed that Tania had only got part way through her legal studies. Tania then sent Mr Bloy a copy of her Certificate of Admission and the point was not taken further by Lily’s lawyer.
Kingsland. There was evidence that James had suffered some significant health issues. He appears to have had inpatient treatment at times including after Frank’s death.
[25] Jed appears to have had close contact with Frank including living with him at times. Jed works in the film industry.
[26] Vincent’s evidence was that he had lived with Frank at 16 New Bond Street since the age of 16. That would have been for about the last five years of Frank’s life as Vincent was aged about 22 as at the date of the hearing. Vincent had a significant role in looking after Petaia. However, after Frank’s death it appears that Vincent moved out of 16 New Bond Street where Petaia lived and went to live at Lily’s house. He was still living at Lily’s place at the time of the hearing.
[27] Tania and Jed’s evidence was that since moving to Lily’s place Vincent had neglected Petaia. Vincent had arranged for Petaia’s benefit to be paid to him but Petaia had become hungry and lonely with Tania having to arrange for a supermarket to deliver food to him, so he had enough to eat.
Capacity
[28] Most of the people who filed affidavits either in support or in opposition to the application expressed their view as to the mental capacity of Frank at or around the time of the making of the 2023 will. Other than for the evidence of Doctors Read- Smith (for the applicant) and Cooper (for the first and sixth respondents), the opinions expressed by the other deponents were not particularly helpful. That is because they were not qualified in any professional sense to express an opinion on the subject and/or provided little detail as to the basis of their view.
[29] An example of this is that the affidavits of Aloma of 16 August 2023, Jed of the 16 August 2023 and Tania of the 27 July 2023 each contained an identical statement to the effect:
Based on the video recording, James’ affidavit and my personal knowledge, I believe that Frank lacked testamentary capacity and was subject to undue influence by Lily, Mr Young, and Vincent at the time the 2023 will was made.
[30] The most helpful evidence in relation to capacity comes from the observations made by the health professionals who observed Frank on the day he made the will; the medical notes relating to the time Frank was an inpatient in hospital before and after 8 April 2023 and the opinions of the two doctors.
[31] The Court is also in the unusual situation of having available to it the videos recorded on the phones of James and Lily which show what actually took place at the time of the making of the will. The Court is therefore in the position of being able to see exactly what happened during the process of the will being made.
The making of the will
[32] The relevant narrative leading to the making of Frank’s will on 8 April 2023, starts on 2 April 2023 where Frank was admitted to Auckland Hospital for the purposes of surgery under general anaesthetic to resect a bladder tumor. The medical assessment undertaken by Dr Read-Smith on 2 May 2023 records that, at the end of 2022 Frank was found to have an advanced bladder cancer of an unusual type, with injury to his kidneys. He had his first surgery for this cancer in November 2022. He was recommended to follow up with the Oncology Department for Chemotherapy and the Urology Department for another surgery to remove the rest of the tumor that had not been able to be removed in November. Frank declined both of these interventions.
[33] Frank had been seen at the Urology clinic again on February 27, 2023. At this time he did want to have surgery and that was the purpose of his 2 April 2023 admission. However, it was discovered during surgery that the tumor was too extensive and complicated to be removed.
[34] On 4 April 2023 the nurses’ notes from the evening shift record that Frank was very confused and suffering from nausea, vomiting, and possibly alcohol withdrawal. Frank was prescribed both lorazepam and haloperidol.3 He also received bupivacaine
3 Dr Read-Smith’s evidence was that lorazepam is a benzodiazepine that is used to treat anxiety, insomnia, seizures, and for alcohol withdrawal. Its side effects include drowsiness, dizziness and tiredness. Dr Read-Smith described Haloperidol as being an antipsychotic medication only used in cases of severe confusion and agitation.
and fentanyl infusion via a catheter. The nursing notes say: ‘Tried to calm down the patient, but he was uncooperative’.
[35] The notes for the overnight period 19:00—07:00 4/5 April record that Frank was agitated and: ‘He said he wanted to go home and tried to pull lines’.
[36] On 5 April 2023 the consulting physician on the ward round described Frank as ‘delirious and vomiting’. A registrar later noted ‘Confusion ++’.
[37] The notes showed that Frank suffered a medical decline over night 5/6 April with respiratory distress. The note says, ‘patient was newly paranoid today’.
[38] The notes for 6 April 2023 state: ‘clinical deterioration, hypotension to 70—80. Problem list #4 delirium. Opens eyes to voice’.
[39] On 6 April the team of doctors doing the round in the morning noted ‘some delirium’ as did the Registrar at 13:10. At 15:00 the notes read ‘family meeting with sons and health advocate/currently very unwell from respiratory/cognitive/ileus’.
[40] On 7 April the notes disclosed that Frank triggered a Code Orange at the hospital. This is a behavioural code. He was considered to be at risk of harming himself. The notes state ‘Pt required 6+ security to hold him down. Patient alert, confused, agitated’. Later that day, the nursing notes state that Frank had ‘restlessness and confusion’ and was ‘starting to be combative and agitated’. Frank was given more lorazepam and haloperidol.
[41] The notes for 7 April show that Frank had visitors who wanted to take him home because they stated, ‘there is nothing wrong with him’. They also wanted all his attachments removed. The notes indicate that the Ward Coordinator talked to the visitors and called another Code Orange. The nurse manager and on call junior doctor talked to the visitors and explained Frank’s situation. This resulted in the visitors leaving shortly afterwards.
[42] The day shift nursing notes for 7 April record that Frank was disorientated to time and place.
[43]The nursing notes for the period 23:00—07:00 7/8 April4 say
‘disorientated to time and place. Patient refused BP check…PCA ongoing…pulled out his IV line…difficult access, refused to be touched…patient settled and asleep, however, became agitated when given meds or being touched CATA, PA at bedside’.
[44] The day shift nursing notes for 8 April 2023, state ‘pt. on bed, awake, trying to pull out catheter and wanting to get up from bed’.
[45] The notes for daytime on 8 April 2023 include the statements from a nurse ‘asked to witness signature = declined as he is confused intermittently.’ Another daytime nurse had recorded: ‘informed by PA in situ that family members requesting for RN sign docs to witness however RN declined as not comfortable as PT. has ongoing confusion + delirium’.
[46] The Patient Attender notes for 8 April 2023 list, under the heading Patient Behaviours of Concern,: ‘pulling out IDC and IV; PO Delirium and agitation.’ The detailed notes set out the various observed incidents of this behaviour which appears to have continued throughout the day.
[47] The Patient Attender notes for the time immediately before and after the will was made read:
‘07:00 H/O received from night PA. Pt very restless, trying to get out of bed.
07:30 Pt had a bed wash. Still restless (illegible) N put Pt on high flow and did his obs.
08:00 Pt settled, half asleep, half awake.
09:00 Pt trying to get out of bed and removing the oxygen mask.
4 Dr Cooper suggested that it was unclear whether these notes related to 23:00—07:00 6/7 or 7/8 but looking at the sequence of all the notes, I am satisfied they related to the period of overnight 7/8 April
10:00 Pt is quite unsettled, trying to take off the oxygen mask. Phlebotomist took blook sample.
10:30 Pts wife visited. Pt settled.
11:45 Pt quite agitated, trying to get out of bed and keeps taking the oxygen mask off.
12:00 Pt is very agitated. RN was giving IV meds and Pt started kicking, punching and also tried to bite PA’s hand.
12:15 Pt gone down to x-ray.
13:00 Pt back from x-ray. RN tried to put in a new IV line, Pt got very aggressive and started kicking and tried to bite PA’s hand.’
[48] The nursing notes at 20:28 on 8 April state ‘patient advocate? Introduced herself and wanted to block a certain ‘Lily’ from visiting the patient. She claims that Lily is an ex-partner and poses threat to patient. I have escalated above to the Surgical CNM. Family (5 of them) at bedside’.
[49] The notes for the evening 8/9 April note ‘patient is conscious, oriented to person but not oriented to place and time of day…he was agitated when bed sheet was changed.’
[50] The notes for 9 April at 03:50 made by the house officer note ‘asked to see patient for agitation and increased resp rate, Code Orange’.
Significance of the notes
[51] These descriptions of Frank by the hospital staff responsible for Frank’s care between 2 April and 8 April 2023 are relevant to the question of capacity in two different respects. On 4 April 2023 Vincent visited Frank in hospital. His evidence was that Frank dictated to him notes for a will. Vincent produced a copy of the handwritten notes he had made. It was suggested the 8 April will was reflective of the
notes made by Vincent on 4 April. Frank’s capacity on 4 April is therefore relevant. As 8 April is the date Frank executed his will his capacity on that date is also relevant.
[52] The notes of the medical and nursing staff who cared for Frank during this period are also important because they were made by people who had no personal interest in what was in Frank’s 8 April 2023 will. That distinguishes them from those members of Frank’s family and Lily who all have a direct personal interest in the question of whether or not Frank had capacity.
[53] Although the most critical date for assessing capacity is 8 April, the events of the following days are also potentially relevant, so I will summarise them. Frank discharged himself from hospital against medical advice on April 15, 2023. The same day he was brought to the White Cross Urgent Care facility. He was assessed as having leg swelling, being unable to walk and was confused. Lab tests showed a severe worsening of his kidney function. The doctor recommended transport to hospital but Frank left.
[54] The following day an ambulance crew was called to Frank’s house. Frank was confused, vomiting and short of breath. He was transported to the hospital and admitted under the general medical team. He was recorded as being dehydrated, delirious, constipated with leg swelling and poor nutrition.
[55] On 26 April Frank remained confused, and was not oriented to year or date, though he was aware of his location. He did not know why he was in the hospital. He was deemed to have no capacity to make medical decisions at that time.
[56] On 27 April he was agitated, shouting that he wanted to go home and threatening staff. He attempted to leave the ward on April 29. Security was called and he was kept in hospital. Capacity evaluations were undertaken on April 29 by a Dr Burrell and on May 2 by Dr Read-Smith. Both evaluations found that Frank was delirious and lacked capacity to make decisions.
[57] In the report on her capacity evaluation which took place on May 2, 2023, Dr Read-Smith concludes:
‘Frank Lane developed delirium following his surgery in early April, and based on his delirium he was found on multiple occasions subsequent to that event to lack capacity to make decisions. He continued to deteriorate and passed away on May 6, 2023.’
Comparison between the 4 April notes and the 8 April will
[58] The case for Lily was that the 8 April 2023 will was effectively the same as the 4 April 2023 notes and that therefore the Court could have confidence that the will reflected Frank’s testamentary intentions irrespective of the state he was in on 8 April.
[59]A review of the terms of the two documents does not support this contention.
[60] The 4 April 2023 notes are not in the form of a will but a list of bequests. The notes are in Vincent’s handwriting. There are crossings out and alterations in them, some of which alter the identity of who is to receive the various items dealt with in the notes. None of the alterations are initialled.
[61] There are also significant changes and omissions between the 4 April notes and the 8 April will.
[62] The notes leave a Toyota motor vehicle to Leah Beaumont, and a Nissan Pulsar vehicle to James. The 8 April will does not mention either of these bequests.
[63] Paragraph 5 of the notes refers to ‘cash savings ASB Bank’. Beneath that the name Lily is crossed out and the name ‘Lisa Tan Morris’ inserted. Lisa Tan Morris is Vincent’s mother.
[64] In para 6 under the heading ‘cash deposit BNZ Bank’ there are two crossings out. The first is ‘Petaia Scott Lane’ and the second is Lily. The name Lily has then been added immediately in front of the ‘Lily’ that is crossed out.
[65] Paragraph 7 of the notes says ‘the right to live in perpetuity at 16 New Bond Street: Petaia Scott Lane’. The will does not give Petaia a right to live in perpetuity in 16 New Bond Street.
[66] Paragraph 8 (the numeral 8 has been crossed out) says ‘all business to be conducted by: Vincent Jeff Tan.’ The will appoints James as executor and trustee not Vincent.
[67]The notes do not refer to a Westpac Bank account, but the will does.
[68] The notes do not refer to what happens to the residue of the estate whereas the will says it is to be divided equally between James, Vincent, Jed and Dylan.
[69] The will contains some provisions that have no counterpart in the notes. One says, ‘I appoint my friend Ms Xinfeng Li as the guardian of my friend’s son Dylan Smith’.
[70]The will also contains a clause which reads,
‘that Frank gives his estate to his trustees on trust to pay: the residue of my estate to my friend [no name inserted] $500,000, - which should not be shared with her husband.’
[71] The word ‘not’ has been added in different coloured pen and Lily’s evidence was that she wrote that word in some time after the will had been executed and witnessed.
[72] The will also imposes a condition which purports to oblige Vincent to look after Petaia for life.
[73] The will has what purports to be a residue clause (notwithstanding the clause set out above which on its face left the residue to Frank’s ‘friend’). That clause reads, ‘the remainder will be equally distributed among 2nd son [James], Jed Lane Tan, Vincent Jeff Tan and Dylan Smith’.
[74]Dylan was not mentioned at all in the 4 April notes.
The involvement of Paul Young
[75] After meeting with Frank on 4 April and taking notes of their discussion, Vincent talked to Lily about getting a lawyer to make a new will for Frank.
[76] Lily’s evidence was that when Vincent couldn’t contact a lawyer he asked her to find one. She said that her former flatmate gave her the name of Jinyue Paul Young (Paul).
[77] Paul Young, like Lily, was Chinese and spoke Mandarin. He had never previously acted for or even meet Frank. Because it is important to the issue of undue influence, I will set out in some detail Paul’s background. At the time of giving evidence, Paul was 68 years old. He said that he held a Bachelor of Science Degree in Marine Engineering in Taiwan, a Master of Arts Degree in Christian Education in the United States and a PHD in Theology.
[78] He appears to have come to the study of law late in life having been admitted as a barrister and solicitor of the High Court of New Zealand in 27 September 2013 and commencing practice in 2014. His legal career was brief and ignominious. He held a practicing certificate between 2014 and June 2018 but was suspended from practice as a result of disciplinary charges brought against him for some 45 months. He retired from practicing law in 2018.
[79] Paul acknowledged the suspensions but said that he totally denied the allegations.
[80] Paul’s activities have been the subject of at least two High Court decisions. The first of those is Zhang v King David Investments.5 In the course of that decision, Palmer J made a number of comments about Paul that are potentially relevant to these proceedings. He said:
(a)that Paul had told him that ‘…he sometimes has problems with his memory’;6
(b)that in respect of an application Paul had filed: ‘much of the application is incoherent…’;
5 Zhang v King David Investments [2016] NZHC 3018.
6 At [10].
(c)he expressed reservations about Paul’s credibility;7 and
(d)he described aspects of Paul’s evidence as: ‘extraordinary’ and ‘irrational’ and referred to Paul as ‘incompetent’, expressing ‘grave doubts as to his professional competence’8
[81] In Young v National Standards Committee9 Whata J noted that Paul had been found guilty of charges of misconduct in relation to him:
(a)swearing a false affidavit of documents;
(b)threatening to use the complaints process for an improper purpose;
(c)engaging in misconceived and meritless litigations;
(d)making serious allegations against another party and counsel.10
[82] Whata J also noted the criticism that had been made of Paul by the Disciplinary Tribunal when he said:
The Tribunal noted that [Paul] admitted many of the particulars pleaded, that his correspondence and drafting was incoherent and misconceived, deficient and non-compliant with the rules’.
[83] Paul’s evidence was that he attended the hospital on the morning of Saturday 8 April 2023, the day after he had been spoken to by Lily.
[84] He said he had not seen the 4 April notes written up by Vincent until after making the 8 April will. He said that when he arrived at the hospital, he walked around the whole ward looking for a Chinese man. He said that he thought that Frank would be Chinese.
7 At [36].
8 At [44].
9 Young v National Standards Committee [2019] NZHC 2268.
10 At [1].
[85] It appears that Paul met with Frank for an unspecified period between about 8.30am and 9am on 8 April. It seems that James and Vincent were in the room with Frank at that time.
[86] Paul’s written evidence as to when he met Frank was inconsistent with his oral evidence. In his affidavit, sworn in support of Lily’s case, he said ‘I recall that when I first arrived and met Frank, I told him that I was an enrolled lawyer of the High Court. I am not entirely certain if I told him I was a retired lawyer but that would have been my usual practice.’
[87] In his affidavit Paul did not mention a separate meeting with Frank prior to the meeting that was videoed at 9am.
[88] The soundtrack of the video starts with Paul saying, ‘lawyer of the High Court’. Paul’s evidence was that he had said he was an ‘enrolled lawyer of the High Court’ and the soundtrack didn’t catch the word ‘enrolled’. The contents of the video support the proposition that it was at the start of the drafting of the will that Paul claimed to be a lawyer of the High Court (enrolled or otherwise) and not at any earlier discussions with Frank.
[89] In his affidavit Paul acknowledged what he described as having ‘…a passion not only to help people but also to educate people about Christianity’. During cross-examination he admitted having brought with him a Chinese booklet ‘How to Believe in Jesus’ and he acknowledged that the principal purpose of his conversation with Frank in his initial meeting was to try and convert him to Christianity (if he was not already a Christian) before he drafted his will.
[90] During cross-examination it was put to Paul that the video recording showed him saying that Frank had ‘a huge estate’. When he was asked to explain how he acquired that information Paul said, ‘Frank told me’. He doesn’t say when Frank told him this and the reality was that Frank’s state was modest consisting of two run down properties in Kingsland and bank accounts with just under $650,000 in them.11
11 With the payment of legal costs and some urgent repairs on the two properties, there was apparently some $460,000 cash at the time of the hearing.
[91] Notwithstanding that Paul did not know Frank or anything about his circumstances, he did not ask Frank questions about his circumstances, family members and those to whom Frank might have an obligation. During cross-examination, the only information Paul volunteered about what he asked Frank prior to the will drafting commencing, was whether he had a wife and Frank’s answer was ‘yes some woman’. Paul also said he didn’t know whether Frank had ever been married.
[92] Paul brought with him to the hospital a template for a will which he proceeded to fill the blanks in, in handwriting and then got Frank to sign.
[93] In his affidavit Paul made the statement ‘I was carful to ensure that my questions were open and not leading.’
[94] This claim is not consistent with the evidence disclosed in the video and its transcript. Almost every one of the questions asked by Paul was leading.
[95] The template Paul had brought with him was grossly inadequate, as were some of Paul’s explanations of the clauses in it.
[96] In his affidavit, Paul claimed to have made eight wills while in practice as a lawyer. Under cross-examination he claimed to have used the same template for those wills that he had brought to the hospital. However, he was evasive when asked where he got the template from. His initial response to that question was “from my computer”. When he was asked if the template was from a precedent library or some other authoritative source his answer was “Mmm, I can’t remember”. When directly asked whether he drafted the template he was initially evasive even asking “what do you mean by draft” but eventually answered “no” to the question of whether he created the template itself. He also admitted that Frank’s will was the first will he had drafted without being under the supervision of another lawyer.
The will
[97] The will Paul drafted had some unusual features including that Paul had not recorded Frank’s middle name or his occupation.
[98] The template document starts by saying that Frank cancels his earlier wills. However, Paul had made no attempt to find out what was in the earlier wills.
[99] The will appoints James to be executor and trustee, but Paul clearly did not know the meaning of those terms. The video records him volunteering an explanation as to the meaning of the words executor and trustee, and him saying “we normally write both because suppose he, you want to set up a trust in the future, put all property into then you would be the trustee.” In cross-examination when it was put to him, ‘So James could have put the Kingsland properties into a trust?’ Paul’s answer was “yes”.
[100] When he was asked in cross-examination what his understanding was of the difference between an executor and a trustee, Paul gave an incoherent answer, saying,
“OK, for some people executor deals with where to pay the money about the funeral etcetera. For trustee, means they want to put properties into the trustee. So into a trust so there is a trustee who will handle for the interest of the beneficiary. Put all money into trust.”
[101] Under the heading ‘Executor and Trustees’ Paul has crossed out the word ‘my’ in relation to ‘this my will’. The executor and trustee is also only appointed ‘…in respect of all my cash and properties in New Zealand’ with the words ‘in ASB. BNZ. Westpac’ being added in handwriting after the words ‘cash’. Paul had no explanation as to why the executor and trustee was only appointed in respect of cash and properties in New Zealand and not Frank’s other assets beyond stating ‘If there is vehicle he wants to add, I just add it by hand, easy.’ When it was pointed out to him that Frank did have vehicles and they were not added or mentioned Paul answered, “He did not ask me to add vehicle”. The reality revealed by the videos is that Frank did not ‘ask’ Paul to put anything in the document. He simply responded to statements from Paul, Lily and James.
[102] The will template, under the heading ‘Disposal of Body’, had the words ‘I wish that my body be cremated.’ Frank’s prior will had expressed the wish to be buried rather than cremated. Under cross-examination Paul admitted that he did not discuss the question of burial with Frank and that all he had said to him was ‘You wish to be cremated, right’.
[103] Paul would not accept that this was a leading question. When it was put to Paul in cross-examination that his questions were almost all leading his answer was ‘I think for my age, I have more experience than you in the life and death issue. Alright, these beneficiaries they don’t worry about whether it is cremonated [sic] or buried. They worry it’s money, that’s it’. This would indicate that he would appear to have believed that he was drafting the will for the benefit of the beneficiaries rather than as a document that expressed Frank’s wishes.
[104] Clause 4 of the template under the heading of ‘Guardian’ had the printed words ‘I appoint myas the guardian of myafter the date of this will.’ Paul inserted in handwriting the words ‘friend Ms Xinfeng Li’ in the first blank space, and after the words ‘as the guardian of my’, the words ‘friend’s son Dylan Smith’.
[105] When Paul was questioned about this in cross-examination, it was put to him that the clause made no sense and was of no legal effect because Frank had no legal or biological relationship with Dylan and therefore had no entitlement to appoint a guardian. Paul’s explanation was, “I think this is – I even don’t know Dylan, who’s Dylan. I asked this question, he, Mr Frank agreed, yeah”.
[106] The next question asked of Paul was ‘So you didn’t know that Dylan was Lily’s child?’ and his answer was “at that time no.”
[107] This indicates two things; firstly, the depths of Paul’s ignorance of what is appropriate to be put in a will and secondly it demonstrates what can happen when you put a leading question to a sick, confused, elderly man.
[108]Under the heading ‘Estate’ the template had the following words,
‘I give my estate, (including those in any trust related to me) to my trustees on trust to pay:—
(a)my debts incurred in or payable in New Zealand.
(b)my trustees’ administration expenses.
(c)my funeral expenses.
(d)the residue of my estate to my_.’
[109] Added to the end of the words in (d) in handwriting are ‘friend $500,000 — which should be shared with her husband.’ The word ‘not’ was admitted by Lily to have been added by her later so that this clause read ‘which should not be shared with her husband.’
[110] Paul acknowledged that the word ‘not’ had been added later by Lily. Paul also admitted telling Lily that there were two ways to alter the will after it had been executed including him authorising her to do it. When he was specifically questioned whether he believed that he had the power to authorise someone to change someone else’s will after its execution, he indicated he did.
[111] There is also conflict between the printed words at the start of clause d which gives the residue of his estate to his trustees and the handwritten words ‘friend
$500,000’. Given that there were no specific bequests, the will could be construed as giving the entire estate ‘after payment of debts, trustees administration expenses and funeral expenses’ to Lily.
[112] The only time that the two properties are mentioned is under a clause headed ‘Administration Powers’ which starts by saying ‘My Trustee shall have the following powers:
(a)To sell: To sell my real and personal property or any part of it in the manner and on terms my Trustee thinks fit.
[113]In handwriting after this, Paul has inserted: properties located at:
A9 Fourth Avenue, Kingsland Auckland
B16 New Bond Street, Kingsland Auckland A will be gifted to 2nd son.
B will be gifted to Vincent Jeff Tan who will look after Petaia Scott Lane for life.’
[114] On its face, this clause authorises the trustee (James) to sell any properties including the two residential properties. This is unlikely to have been Frank’s intention.
[115] During cross-examination Paul was asked whether he had given any thought as to how the condition that Vincent was to look after Petaia for life would be enforced? And his answer was “no”.
[116] At several points in the video Paul spoke to Lily in Mandarin about matters to do with the will. Frank didn’t speak Mandarin. When asked in cross-examination about whether it was appropriate to speak Mandarin with Lily, Paul’s response was ‘it wont affect Frank at all, for instance he [sic] explain Dylan is her son etcetera, it wont affect the will’.
[117] Shortly after commencing drafting the will, it is apparent from the video that Frank is unable to read. Paul then says ‘you cant see, hey? I read for you, alright’. However, as Paul acknowledged in cross-examination, in spite of being aware that Frank could not read the document, at no stage did Paul read the will back to him.
[118] The video shows that Frank spent much of the time with his eyes shut, appearing to be asleep.
[119] Paul’s affidavit says, ‘After the will was signed I recall that Frank went to sleep.’ The claim that it was only ‘after the will was signed’ that Frank went to sleep is inconsistent with what the video shows and what the soundtrack records. The transcript at 13 minutes 18 seconds into the recording discloses that James asked Frank ‘hey dad, are you awake?’ It also shows that Lily, at this point taps Frank on his hand and that he then wakes up.’
[120]Paul’s affidavit also says,
‘There was some discussion between those present about whether Frank should be checked medically to ensure he had the testamentary capacity. My recollection is that nobody thought that was necessary.’
[121] Again, this is inconsistent with the video record. The second and shorter of the two video recordings at 3:38 shows Paul saying to James ‘I am waiting for another lawyer here; he is going to check his mentality and then transfer the property for you’. No such other lawyer ever came, however this shows that, at this point, Paul was sufficiently concerned about Frank’s capacity to make that comment to James. Paul’s claim that property could be transferred before a testator had died is also concerning.
[122] In his affidavit, Paul said ‘In summary my capacity as the will drafter was totally independent of any parties. I simply did what I was instructed by Frank.’ Again, this statement is inconsistent with the contents of the video. Paul was clearly acting on Lily’s instructions. Throughout the process of drawing up the will, Frank only responded with a coherent answer to less than half of the questions he was asked and most of those answers were one word. At no point does Frank initiate the giving of instructions and at many points the instructions come from Lily or James with both of them making suggestions to Frank as to what should be in the will.
[123] One example of Lily controlling what went into the will is how the statement that the $500,000 bequest to her was not to be shared with her husband. When cross-examined about that, Paul said “This is what Frank told me, now should not be shared with her husband.” The video shows that Frank did not say anything about this and it was Lily who interjected and gave direct instructions to Paul to put that in. Paul seems to have misunderstood what Lily was saying and wrote ‘which should be shared with her husband’.
[124] In cross-examination, Paul acknowledged discussing the payment of his fee with Lily telling her that he charged $300 per hour and the total bill would depend on how many hours he would spend. His evidence was that he was paid $800 for his services and, as to how that occurred, he said “On that day they take 800 cash from Franks wallet, I think”. When it was put to him that Frank didn’t take the cash out of his wallet his answer was, ‘I don’t know’. He also claimed not to know that it was Vincent who took the cash out of Frank’s wallet saying ‘I didn’t see how they take the
cash from his wallet’. He claimed to have issued an invoice for his services but said that he ‘forgot’ who he issued the invoice to. He acknowledged that he had no way of contacting Frank to provide him with an invoice.
[125] During cross-examination Paul was asked what the urgency was about completing the will. His answer was ‘Lily says he is very weak alright, Frank is very weak, he may pass any time, pass away so that’s why the reason why I came earlier. I worry if he pass away 8.30 it will be too late for me, client will blame me for this ok.’ The only ‘client’ he could be referring to was Lily. That confirms that he regarded Lily as his client, not Frank.
[126] The fact that Lily was Paul’s client and not Frank is also confirmed by some events that occurred after the will was executed. The first was the fact that Paul believed he could authorise Lily to amend Frank’s will.
[127] The second appears in the affidavit dated 26 September 2023 filed by Tania. That affidavit contained the following paragraphs:
‘Sometime after the 2023 Will was signed, around 15 April 2023, I had an unpleased personal interaction with Paul. I was staying at the New Bond Street property with dad. I woke up at around 8:00pm that night to discover Paul at the foot of my bed, holding a briefcase. He had not been invited and his visit was without notice. I was naturally distressed and told him to leave. I then observed Paul leaving with Lily.
I believe Lily and Paul were attempting to get dad to sign more documents in relation to the Estate. Whatever the reason for Paul’s visit, it was clear to me from the visit that Lily and Paul were working together. I do not know if Lily was paying Paul, but I suspect that is the case.’
[128] As a result of documents filed by Lily after the hearing, it became clear that Paul continued to advise her. In my minute of 20 November 202412 I refer to Lily’s claim that she was entitled to be assisted by Paul in relation to these court proceedings.
12 Lane v Li and Ors CIV-2023-404-1265 minute of Churchman J dated 20 November 2024.
Medical evidence re capacity
[129] As the two medically qualified witness’ reached diametrically opposed conclusions as to Frank’s capacity to make the will of 8 April 2023, it is necessary to discuss the contentions in some detail.
[130] Dr Samantha Read-Smith filed two affirmations, one dated 29 September 2023 and the other in reply, dated 1 March 2024. She was also required for cross-examination.
[131] She is a specialist in internal medicine working as a senior medical officer at the Auckland City Hospital. She has 20 years’ experience as a specialist in both New Zealand and the United States. She holds certification from the American Board of Internal Medicine and a fellowship with the Royal Australasian College of Physicians. In addition to working at the hospital at the time Frank was an inpatient, she conducted an evaluation of him on 2 May 2023 to assess his capacity to make medical decisions and she had also reviewed the video of Frank making the will and had considered Frank’s medical files.
[132] Dr Read-Smith noted that because Frank was not under her care on 8 April 2023 she couldn’t provide a formal diagnosis as at that date, however, from her evaluation of Frank on 2 May and her review of the video recording and Frank’s medical files, she felt able to express an opinion as to whether Frank was fit to make medical decisions, or any complex or important decisions, on 8 April 2023. The conclusion set out in her affirmation of 29 September 2023 was that:
‘In my opinion, based on the Notes, Video Recording, and my personal knowledge and expertise, it is likely that Frank did not have capacity to make decisions for himself on 8 April 2023 at the time he made the will. The documentation supports the conclusion that Frank was experiencing ongoing, sustained delirium.’
[133] Dr Read-Smith described the criteria which were applied to assess if someone had capacity. She said:
‘In order to have capacity to make medical decisions, a patient has to demonstrate an ability to, among other things:
(a)understand the decision facing them and why it is important;
(b)retain information long enough to make an informed decision;
(c)vocalise any risks and benefits; and
(d)explain and communicate their decision.’
[134] Dr Read-Smith’s conclusion was ‘Frank could not satisfy the above criteria on 2 May 2023 when I evaluated him, primarily due to showing signs of delirium.’ She also noted that another doctor from General Medicine who had evaluated Frank on 29 April 2023 reached the same conclusion.
[135] Dr Read-Smith placed considerable emphasis on the observations of the medical and nursing staff made on 7 and 8 April about Frank’s ongoing confusion, delirium and agitation.
[136] Dr Nicholas Cooper filed his first affidavit on 21 December 2023. He was retained by Lily’s lawyer. His evidence was that he was a General Practitioner and had been for some 30 years. He was a fellow of the Royal New Zealand College of General Practitioners. His affidavit records that during his medical training he worked for several months as a General Medical Officer in the surgical wards at Auckland City Hospital and that during those months he ‘…gained a lot of experience in the care of the elderly surgical patients.’
[137] He acknowledged that a capacity assessment of a patient involves a clinical examination to determine if they understand the nature, and can foresee the consequences of, decisions in respect of matters relating to their personal care and welfare or property and are able to communicate their decisions’.
[138] Dr Cooper said that his assessment of Frank was ‘…based on what he told his friends prior to his illness, what he told his son prior to his surgery, his communications with hospital staff, and repeated viewings of the video recordings of him making his will.’
[139] In relation to Dr Read-Smith’s evidence that the hospital notes recorded that on 2 April 2023 ‘Frank was deemed to be at high risk of delirium’ Dr Cooper accepted
that Frank would be at high risk of post-operative delirium but said that Dr Read-Smith was ‘merely stating the obvious’.
[140] Dr Cooper also comments on Dr Read-Smith’s review of the medical notes which recorded that, on 5 April 2023 ‘Frank was started on the alcohol withdrawal protocol.’ He says that he couldn’t see in Frank’s medical records any assessment of Frank’s supposed ‘alcohol problem’ and that there were no liver function tests showing alcohol damage.
[141] He then expressed the view ‘I think that Dr Read-Smith and the hospital staff have confused the after effects of Frank’s surgery and general anaesthetics with alcohol withdrawal’.
[142] However this would seem to misstate what Dr Read-Smith actually said. Dr Read-Smith simply stated that the medical notes show on 5 April 2023 that Frank was started on the alcohol withdrawal protocol. That fact is clearly recorded in the notes. Dr Read-Smith cannot be ‘confused’ about that. Neither would there appear to be any evidence to support the assertion that the hospital staff were confused about the need for Frank to start on the alcohol withdrawal protocol.
[143] The critical difference in the evidence of Dr Cooper and that of Dr Read-Smith is the regard they have to the hospital notes made on 7 and 8 April. While Dr Read-Smith regards them as an important record of Frank’s medical state on the day, Dr Cooper largely ignores them. His evidence was that the notes:‘…are difficult to read. The notes appear to have been written by nursing staff, not medical staff and for this reason I have not relied on them in providing my opinion.’ Dr Cooper’s conclusion is that Frank was mentally competent on 8 April 2023.
[144] Dr Read-Smith filed a further affirmation on 1 March 2024. She expressed the view that it was problematic that Dr Cooper had said that his assessment of Frank’s capacity was based on what Frank told his friends prior to his illness, what he told his son prior to his surgery, his communication with hospital staff and Dr Cooper’s viewings of the video recording.
[145] Dr Read-Smith was of the view that ‘capacity assessment is event and time specific — something that is particularly important for a person suffering from delirium. As such, Dr Cooper’s assessment should have been limited to, and based on evidence of Frank’s condition at the time he made the will. Frank’s capacity at other times — and things he may or may not have said to others — is largely irrelevant.
[146] Dr Read-Smith noted that the video recordings of Frank making the will were ‘vitally important’ and expressed the opinion that ‘…the video recordings depict a person suffering from the classic symptoms of post-operative delirium and the side effects of various medications, who quite obviously does not have capacity to make a will.’
[147] Dr Read-Smith refers to an academic publication entitled ‘When to be concerned about capacity and the red flags to look for. She says that all of the five red flags identified in the publication were present and refers particularly to the fact that Frank fell asleep several times during the will making process as being ‘an obvious red flag’.
[148] Dr Read-Smith explained that the reason she differed from Dr Cooper’s view that Frank’s responses to Paul shown in the recordings demonstrated that Frank had a good understanding of what was being said saying:
‘In my opinion this was the general nature of Frank’s responses as shown in the recordings. Frank’s responses which were at best brief, at worse unintelligible, and often communicated through others speaking on his behalf, did not demonstrate that he understood what was happening. They were the responses of a person who was merely going along with what was happening.’
[149] Dr Read-Smith gave two reasons why her opinion ought to be preferred above that of Dr Cooper. The first was that she cared for Frank in April/May 2023 during his stay in hospital, and in addition to providing Frank with medical care, she personally evaluated him to assess if he had mental capacity to make medical decisions and secondly, she was a specialist in Internal Medicine, which involved the diagnosis and management of patients with complex medical problems, including geriatric medicine, neurology, palliative medicine and clinical pharmacology.
[150] Dr Read-Smith disagreed with Dr Cooper’s comments that haloperidol is the standard treatment for post-operative delirium and was used frequently. Her view was that the initial approach to delirium in general was to treat the underlying cause and that in cases of mild delirium, supportive care and non-pharmacologic interventions were ‘first line’ and that when such interventions were unsuccessful, haloperidol was recommended. Dr Read-Smith also cited two academic articles on the topic, the first was the UpToDate guidelines which said:
‘When indicated, antipsychotic agents are generally used to treat severe agitation in the patient with delirium, because these symptoms are associated with self-harm and effective alternatives are not available.’
[151] The other article quoted from had reviewed the use of haloperidol in elderly patients with acute delirium and had been published on the GOVT.UK website on 10 December 2021. It included the observation:
‘Haloperidol should only be considered for delirium when non-drug methods are not effective, and there are no other conditions present preventing its use (contra indications).’
[152] Dr Read-Smith expressed the opinion that there was no documentation to support the conclusion Frank had cleared his delirium on 8 April 2023 and she referred specifically to the nursing note that day which recorded that the nurse who was ‘asked to witness signature = declined as he is confused intermittently’.
[153] As to Dr Cooper’s reliance on Frank wanting to leave hospital as being evidence that Frank’s confusion had cleared, Dr Read-Smith said: ‘Often, patients who are unwell and delirious will want to leave the hospital because they lack insight into their condition and the risk of leaving.’
[154] In relation to Dr Cooper’s comments about the Capacity Evaluation Report Dr Read-Smith had prepared on Frank, Dr Read-Smith’s opinion was that ‘Documentation supports that Frank had ongoing delirium from the admission in April through to May’.
[155] Dr Read-Smith notes that the most significant omission was the lack of any capacity assessment having been undertaken prior to the writing of Frank’s will.
Dr Read-Smith concludes ‘given the extensive concerns raised throughout that admission of Frank regarding his mental state, I believe it was the ethical and legal duty of the team who had him write his will to obtain a testamentary capacity evaluation.’ And that ‘Without that evaluation, I do not think any person could be confident that Frank was of a clear state of mind. The documentation and the recordings are consistent with ongoing delirium, and therefore lacking capacity.’
[156] Dr Cooper swore a second affidavit on 17 April 2024. He noted that Dr Read-Smith accepted that there were no standard binding rules for capacity assessments. In relation to Dr Read-Smith’s criticism of him basing his assessment on matters other than an assessment of Frank’s condition at the time he made the will, Dr Cooper said:
‘I disagree. I understand that Frank had told his friends prior to his illness and his son prior to his surgery how he wanted the assets of his estate to be dispersed. The terms of his will are consistent with this. I would have been concerned if they weren’t.’
[157] There are problems with this statement. Dr Cooper is clearly relying on things that he has been told by other (unspecified) people. There is no evidence that Frank told his friends ‘prior to his illness’ what he wanted in his will, neither is there any evidence that Frank told his son ‘prior to his surgery’ how he wanted the assets of his estate to be dispersed. The closest that the evidence comes is Vincent’s account of preparing the notes on 4 April 2023 which was the day after the surgery. This was the date at which Dr Cooper seems to accept that Frank would have had the highest likelihood of suffering from delirium. As noted above, there are also a number of significant discrepancies between the notes prepared by Vincent and the contents of the 8 April will. As Dr Cooper acknowledges, such discrepancies are a matter of concern.
[158] Dr Cooper claims ‘Frank was awake at all times during the video recordings and interacting appropriately with the other people around his bed.’ This is not what the video shows. As noted above, at one point James felt it necessary to ask Frank if he was awake and it is clear that, for much of the time, Frank’s eyes are shut. The videos show that the majority of Frank’s answers to questions were incoherent and
consisted of one or two word replies to suggestions that were put to him by Paul, Lily or James.
[159] In relation to Dr Read-Smith’s evidence about her experience and qualifications, Dr Cooper said that he was also a specialist and trained in the same areas of medicine as Dr Read-Smith.
[160] Dr Cooper says that Dr Read-Smith’s evidence about having performed a capacity evaluation on Frank on 16 May 2023 must be wrong because Frank died on 6 May 2023. He has overlooked the fact that the 16 May report confirms that although the report was written up on 16 May the evaluation was undertaken on 2 May.
[161] Dr Read-Smith was cross-examined by Lily’s lawyer. She accepted that the specific dates she cared for Frank were between 25 April and 6 May 2023. When asked why she felt her evidence was preferable to Dr Cooper’s her answer was:
‘My — from my time in the hospital I was able to observe Frank’s fluctuating mental status and it was clear he had delirium at the time and the longer that delirium persists, even with intervals of clarity, the more concerning it is for long-standing sort of cognitive difficulties that could have been underlying’.
[162] When asked whether her opinion was that Frank had continuously had delirium from his admission to hospital on 2 April to his death on 6 May Dr Read-Smith said that, with confidence, she could only comment on the time of 8 April when she was able to view the video and assess Frank with certainty. When pressed as to why she could be certain Dr Read-Smith responded by saying: ‘My assertions on the 8th April are based on review of the medical chart where every single note by a practitioner referred to him as being delirious and the video I watched.’
[163] When asked why her experience should be preferred over that of Dr Cooper, Dr Read-Smith said ‘So Dr Cooper and I have different training experience. He trained as a GP which is generally speaking a three-year course including rotations in the hospital under general medical doctors. For general internal medicine, the training in New Zealand is six years. Its largely in-patient which is where the majority of delirium cases are seen, and it is a huge part of my practice.’
[164] Dr Cooper was also cross-examined. In relation to his evidence that Frank had told his friends prior to his illness how he wanted his assets to be dispersed, Dr Cooper acknowledged that it was only one friend, and he couldn’t remember that person’s name. He also said he did not interview that person.
[165] When cross-examined about the differences between the 4 April notes and the 8 April will and, in particular, the fact that Lisa Tan Morris was mentioned in the 4 April notes but not the 8 April will, Dr Cooper said ‘well as I said, I don’t know who Lisa Tan is and I don’t know if that’s an alias, I’ve just got no idea who she is. I was interested in what Frank wishes for Lily, nothing else’.
[166] In saying that he was interested in nothing other than Frank’s wishes for Lily, Dr Cooper is displaying a less than objective approach to ascertaining whether Frank had testamentary capacity. Lisa Tan Morris was the mother of Jed and Vincent and someone who was specifically mentioned as a beneficiary in the 4 April notes, but omitted from the 8 April will. As Dr Cooper himself had conceded, differences of this nature should have been a matter of concern.
[167] Dr Cooper acknowledged that drowsiness was a potential sign of delirium and that, in the videos, Frank appeared drowsy. When it was put to Dr Cooper that he was not a specialist in post-operative delirium his answer was ‘I disagree with that, I am, I’ve huge experience in managing it, I worked for James Shaw he was the busiest of the general surgeons in Auckland at the time, so I am extremely experienced in managing post-operative delirium.’
[168] On further questioning, he acknowledged that the ‘huge experience’ he gained in working for James Shaw, was for several months as a junior medical officer at Auckland City Hospital some 30 years previously.
[169] Dr Cooper was cross-examined about the nursing notes made on 7 and 8 April and his failure to place reliance on them. He gave various explanations for this. As noted above, the first was that he thought that the notes dated 7 April 2023 which referred to 23.00 to 07:00 might not have referred to the 7th —8th April but to the 6th
to the 7th. He didn’t accept that, between the time of 11pm on 7 April and 7am on 8 April a nurse had observed Frank to be disoriented as to time and place.
[170] When asked that, if the notes were made at 7am on the day Frank made the will, whether he would be concerned to see a note that the patient was disorientated to time and place, his response was ‘well when I start reading the stuff, because I have to read a lot, as soon as I see an ambiguity and what date, if I feel that the person can’t clarify what date that its actually happened, when it started, then I don’t tend to put too much emphasis on the rest of it, it’s not useful.’
[171] Dr Cooper accepted that the notes dated 8 April were made on that date and accepted that a nurse had declined to witness Frank’s signature on the basis that he was confused intermittently, and she had only had brief interactions with him. However, Dr Cooper said that the person who made the note that Frank was confused intermittently hadn’t assessed Frank. When it was put to him that the note was clearly made, he said there was no evidence that the person making the note had come into the room during the making of the will.
[172] When referred to the notes of 8 April, Dr Cooper accepted that they included a Patient Attender observation chart. He acknowledged he had not considered this document when forming his opinion. When asked why, he claimed that he couldn’t read the notes sufficiently well to make a conclusion and that his understanding was that it was a patient assistant rather than a nurse or doctor who had written the notes. He had accepted that there were notations as to the times during 8 April that the various notes were written. He claimed not to be able to read the text of the note made at 10.30am but could read a note made at 11.45am which said, ‘patient quite agitated trying to get out of bed, he keeps taking the oxygen mask off’. He could also read the note taken at mid-day which said, ‘patient is very agitated’ and ‘was given IV meds and patient started kicking, punching and something, tried to bite patient’s hand’.
[173] When asked whether these observations might affect his finding that Frank had capacity on 8 April his response was:
‘Well as I’ve said to you previously, I don’t pay — I’ve seen a lot of this stuff written down, the people that are doing this job will copy entries from previous
people further up, I don’t place, I wouldn’t place much faith in any of it. If its been written by a registered nurse I would take more faith of it, if its been written by a doctor I’ll believe it.’
[174] He later said he would have to see something more authoritative than notes made by a Patient Observer before he would accept the contents of such notes as being accurate.
[175] He accepted that the 1:00pm entry recorded ‘Patient back from x-ray, I then tried to put in a new IV line, patient got very aggressive and started kicking and tried to bite...’ When it was put to Dr Cooper that the notes meant that the observer had seen Frank attempt to bite someone twice on that day, Dr Cooper’s response was “I wouldn’t accept that at all, accept that they probably copied it from the entry above.”
[176] The reason he said he did not accept the contents of the notes was ‘…because there was situations when I was working in the hospital, where if I had relied on this sort of information I would have been in deep trouble, I had to go and find out what was going on myself’. Other than Dr Cooper’s recollections of what he claimed to have observed when working in the hospital for some months 30 years previously, there was no evidence that would support a conclusion that Frank’s nursing and medical notes relating to events on 8 April had simply been copied from notes made on other days. The fact that the notes were consistent in recording confusion, agitation and aggression throughout Frank’s stay in hospital and that it was necessary for him to be prescribed powerful medication to treat these symptoms, support a conclusion that the notes accurately record what Frank was experiencing. In attempting to minimise the value of the notes, Dr Cooper would appear to have slipped into the role of an advocate for Lily rather than an objective observer.
Legal test for capacity
[177] The principles relating to the assessment of testamentary capacity were summarised by the Court of Appeal in the case of Loosley v Powell.13 The court listed these as being:14
13 Loosley v Powell [2018] NZCA 3.
14 At [19].
(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 to 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 that shall influence his will and 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 later 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 to some degree enfeebled; and yet there may be enough left to 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.’
[178] The Court of Appeal also discussed the question of onus and standard of proof. They adopted a passage from the case of Bishop v O’Dea15 That quotation read:16
15 Bishop v O’Dea [1999] 18 FRNZ 492 (CA).
16 Above n 13 at [20].
[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 space will be presumed to have testamentary capacity.
[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.
[5] That onus must be discharged on the balance of probabilities. Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.
[179]The Court went on to address the standard of proof, saying:17
‘Having heard and considered the evidence, the court had to be satisfied that there was testamentary capacity. If the issue was left hanging in the balance, capacity would not have been established’ (Footnote omitted).
[180] The Court of Appeal made it clear that the existence or absence of a rational basis for a significant change from what was in a previous will may be a matter that is relevant to assessing capacity. They said:18
‘There are indeed numerous authorities where a major change of testamentary disposition has been seen as supporting an inference of incapacity in the absence of an adequate explanation. Hammond J noted in Re Rhodes:
‘Where property is disposed of fairly, and in accordance with moral dictates, then only a very small amount of capacity is needed. But with abrupt and unfair changes, fuller and clearer evidence of capacity is required.’
[181] The Court made it clear that it would be wrong to deny capacity only because of a failure by a solicitor making the will to enquire as to the reason for a significant change and then said:19
‘There are a number of factors taken into account in assessing capacity as outlined in Banks v Goodfellow; including evidence of lucidity and mental command, available medical assessments, and third party observations of behaviour. A further factor can be, if the will does involve a significant change from earlier wills, the reasons for the change apparent from the factual background, or as expressed by the will maker.’
17 Above n 13 at [21].
18 At [32] (quotations omitted).
19 At [33].
[182] One of the things that the Court specifically noted was that the view of the lawyer involved in the execution of a will is relevant in assessing capacity. The Court said:20
‘The value of the view [of the lawyer] will turn on the level of inquiry and discussion on the part of the lawyer of and with the deceased. [The lawyer] did not inquire about the reason for the changes. In our view it would have been good practice for him to have done so. When a will-maker is very ill, in this case giving instructions from a bed, an inquiry into the reasons behind significant changes is a good way of checking whether the will maker understands the nature of his or her actions and the effect of those actions.’In Woodwood v Smith this Court endorsed as good practice a set of precautionary steps including asking about and reviewing previous wills, and asking why potential beneficiaries are included or excluded.’
Analysis
[183] The first consideration is whether the will of 8 April 2023 was rational on its face. That involves a comparison with the prior will of 14 December 2010 and the notes made by Vincent on 4 April. The 2010 will left Frank’s entire estate, after payment of his debts, equally to five of his children leaving out Petaia. That is fundamentally different to both the 4 April notes and the 8 April will. As discussed above, there are significant differences between the 4 April notes and the 8 April will.
[184] There is no obvious rationale for the changes between the 2010 will and the 2023 will.
[185] In assessing whether Frank’s property was disposed of fairly and in accordance with moral obligations, Frank’s obligations were clearly owed to his children. As noted, several have health problems and/or were beneficiaries and, as at the date of this death, three were dependant on him for accommodation.
[186] By way of comparison, Frank owed no moral obligation to either Lily or her son Dylan. Lily’s financial circumstances were much better than those of any of his children. Attached to Vincent’s affidavit was a printout showing that Lily was the registered proprietor of some eight properties in Auckland. She claimed to have had a $2 million mortgage on those properties.
20 At [51].
[187] The size of Frank’s estate was modest. The $500,000 bequest to Lily would have exhausted all the of the cash available as at the date of the hearing, leaving nothing for any of the named residuary beneficiaries.
[188] I accept that it is not the role of the Court to substitute its own perception of moral obligation when considering whether a will is fair or rational. However, as a result of the facts just mentioned it is difficult to find a rational explanation for the
$500,000 bequest to Lily. That is one factor that can support a finding of lack of capacity.
[189] I also note that James’ evidence was that some days after making the 8 April will, Frank appeared to have no recall of it and in particular no recollection of the bequest to Lily. This led to a three-way telephone conversation between Frank, James and Lily. Lily was cross-examined about that conversation and admitted that it occurred. She initially answered “yeah” to the question “Frank said he wanted to cut you out” but then added that what Frank had said in the conversation was: “I don’t want. I don’t have anything to do with your debt.” This factor is also relevant when assessing capacity. It supports a conclusion that Frank lacked capacity on 8 April.
[190] The next matter for consideration relates to the actions of the lawyer drafting the will. In this case, Paul was not a lawyer and Lily’s counsel emphasised that you didn’t need to be a lawyer to make a will. This is correct, however steps taken by a lawyer (or other person) drafting a will are clearly relevant to capacity.
[191] Here, Paul did not conduct even the most elementary of the inquiries that the Court has indicated are good practice. He had never met Frank previously, he claimed to know that Frank had a previous will but made no inquiry about the contents of it; he had no understanding of the nature and extent of Frank’s property, erroneously describing it as a ‘huge estate’. He didn’t know anything about Frank’s family.
[192] Paul clearly regarded Lily as his client and not Frank; he took no steps to assess Frank’s capacity when the circumstances called for that (including the fact that Frank was in hospital and he was aware that Frank could die imminently); he drafted the will on the basis of a completely inappropriate template, asked almost entirely leading
questions and demonstrated his complete lack of understanding of elementary concepts related to the making of a valid will. Paul’s incompetence, his alignment with Lily and his failure to undertake the basic checks as to testamentary capacity mean that there is no basis for his conclusion that Frank had capacity. Far from Paul’s presence and professional actions lending support to a conclusion of capacity, they do exactly the opposite.
[193] I turn now to the medical evidence. For the reasons that I will set out, I accept the evidence and opinions of Dr Read-Smith over those of Dr Cooper. Of the two, Dr Read-Smith had the more relevant qualifications and experience. The experience that Dr Cooper put forward as justifying his opinion related largely to his work as a junior doctor in the hospital for a period of some months 30 years previously.
[194] Two aspects of Dr Read-Smith’s evidence differed in important respects from Dr Cooper’s. Dr Read-Smith relied on the observations made by those hospital staff who observed exactly what was happening for Frank on the 7th and 8th of April and made notes about it. Those notes recorded that Frank was agitated, confused, aggressive or attempting to rip lines out. They are observations that can validly be made by a nurse or a patient assistant. I accept that Dr Read-Smith was entitled to rely on those observations.
[195] There is no rational justification for Dr Cooper’s view that it has to be a doctor who is recording this behaviour before the notes can be regarded as an accurate record of what the person making the notes actually saw. The attempts by Dr Cooper to distinguish those observations and, in particular, his claims that the people making them probably copied them from entries above and that he needed something more authoritative that nursing notes to accept what was recorded are simply not credible.
[196] The observations of the Patient Attendants as to the state that Frank was in on 7/8 April are also consistent with the records of the medication that was given to Frank at those times. Dr Read-Smith set this out at [28] of her affirmation of 29 September 2023. Frank received haloperidol at 02:30am on 8 April. He had received lorazepam in both the morning and evening of 7 April. He was also on fentanyl and bupivacaine on 8 April. He would not have been given these powerful medications unless the
doctors caring for him thought that he needed them. In addition to being used to treat delirium and agitation, as Dr Read-Smith deposed, the drugs themselves could have contributed to Frank’s confusion and decreased alertness on 8 April.
[197] The second advantage that Dr Read-Smith had that Dr Cooper didn’t is that, on 2 May, she actually physically conducted a capacity assessment of Frank. In terms of the guidelines for assessing capacity that both Dr’s Read-Smith and Cooper agreed were important, conducting a physical assessment was a critical component.
[198] It is also clear that some of the evidence which Dr Cooper says he based his opinion on was a hearsay statement from an unidentified person. Little weight can be placed on that sort of evidence. He was also mistaken that the notes taken by Vincent were taken prior to surgery when in fact they were taken the day after, when delirium was most likely. He was also mistaken about the inconsistencies between the 8 April and the notes taken by Vincent on 4 April.
[199] I also find Dr Read-Smith’s evidence about what she observed on the videos to be more consistent with what is actually shown in those videos than Dr Cooper’s evidence. The videos clearly showed that Frank was drowsy, many of the answers to questions that were asked of him were unintelligible; the answers or instructions that he gave were in many cases a product of direct prompting or suggestion by either Lily or James or leading questions asked by Paul.
Conclusions on capacity
[200] The evidence clearly raises lack of capacity as a tenable issue. The onus of satisfying the Court that Frank had testamentary capacity therefore shifts to Lily and Dylan. The evidence supporting a conclusion that Frank lacked capacity is overwhelming. The issue is not ‘left hanging in the balance’. It has been established to the balance of probability that Frank lacked capacity on 8 April 2023 and the 8 April will is therefore invalid.
[201] Although this finding effectively disposes of the issue of whether the 8 April will is valid I will also address the issue of undue influence.
Undue influence
[202] The concept of undue influence is separate and distinct from lack of capacity although some of the factors that are relevant in assessing capacity may also be relevant to assessing whether undue influence exists. One example of this is whether the person said to have been subject to undue influence had available to them competent, independent legal advice.
[203] In the case of Green v Green21 the Court of Appeal analysed in some detail what will amount to undue influence and what the test is. The Court adopted the reasoning of Winkelmann J in the court below in that case. It said:22
(a)The overall burden of proof rests on the person seeking to establish undue influence.
(b)The burden of proof is the balance of probabilities.
(c)The person asserting undue influence must show the alleged influence led to the making of the impugned transaction, and the influence was undue in the sense that the transaction was not the result of the free exercise of an independent will on the part of the person at whose expense the transaction was made.’
[204] The Court of Appeal rejected the proposition that, as a matter of law, impropriety is a prerequisite of undue influence.23
[205] The Court of Appeal also endorsed the observations of Winkelmann J at first instance where she had said:24 ‘…pressure of what ever character can amount to undue influence if it overbears the will of the testator.”
[206]The Court of Appeal went on to say:25
‘The essence of the undue influence doctrine is impairment of free will. It is the overbearing of the will that makes the influence ‘undue’. The focus is thus on the mind of the person consenting to the impugned transaction, not the motives of the person exerting the pressure or influence.’
21 Green v Green [2016] NZCA 486.
22 At [35].
23 At [39].
24 At [36].
25 At [40].
[207] In Green v Green one of the significant factors supporting a finding of undue influence related to the actions of the lawyer involved in the transaction where undue influence was asserted. The Court of Appeal said:26
‘As the cases show, the presence or absence of independent advice is often a critical factor when deciding whether to draw an inference of undue influence. In this case there was compelling evidence [the person involved] was not receiving independent advice. His chief adviser throughout the relevant period was a man who was not his usual lawyer, who had minimal contact with him and who was doing the bidding of the person exerting the pressure’ (footnote omitted).
[208] Whether the lawyer advising on a transaction (in our case the execution by Frank of the 8 April 2023 will) had met Frank before and was familiar with the background was regarded by the Court in Green v Green as being significant. In describing the lawyers who had advised Mr Green, the Court of Appeal said:27
‘Neither had sufficient knowledge of the family dynamics and background issues, including the conduct of [family members] that would have alerted them to the possibility of undue influence. [one lawyer] had never met [the person] before and his lack of familiarity with the background was such he did not even appreciate the significance in the change of executors.’
[209] An allegation advanced by the applicant in the present case was that Lily was a manipulative and devious person who had a history of pressuring Frank to do what she wanted. There was evidence that supported this interpretation.
[210] In her affirmation of 26 September 2023, Tania referred to a particular instance which was said to demonstrate Lily’s manipulation of Frank. Tania’s evidence was:
‘In early 2023, Dad was excited to help me fix my bathroom and toilet when he visited me in Melbourne. I understood that he intended to assist financially and support around $9,000 for those repairs.
However, I was later told by Lily that I didn’t need that money and that I could save my own money to have the bathroom and toilet fixed. Lily further told me that Dylan needed a new bike and fish tank, and that dad had given her the money instead.’
[211] Lily was asked about this in cross-examination. She acknowledged that there was a discussion between Frank and Tania about her bathroom however her account
26 At [75].
27 At [81].
of this situation was irreconcilable with Tania’s. She claims that it was her that encouraged Frank to assist with the bathroom saying:
‘I even try so much to tell Frank: look, she need a new bathroom, you should help her’. But he said: ‘no, no, no, he can — she can get (inaudible) simple house. And then I, you know, and I just gave up. I told Tania: look, your father’s, some money, certainly money they don’t he doesn’t like to spend. Like, for example you know, my son need a new bike, he refused to buy one, but got a second hand one for him and then a fish tank, never happened, but you see, Tania put it in her affidavit…’
[212] She then added that, in fact, she had bought the bike for Dylan because Frank had given Dylan a ‘rusty old second hand’ one.
[213] Jed expressed a similar view about Lily’s propensity to manipulate Frank. In his affirmation of 6 October 2023, she said [22]: ‘however, despite my father’s outlook, he has been vulnerable for the last few years due to his age and mental health condition. During that period, I believe Lily manipulated my father into buying her gifts, lunches and holidays, irrespective of what he wanted’. Jed later said “I believe Lily took advantage of my father’s kind giving nature and used him for trivial deeds, such as driving her child to school, while never contributing to our family or my father.”
[214] Vincent attached to his affidavit of 1 September 2023 extensive documentation passing between him and James by way of email and text messages. The text messages of 8 June 2023 record James saying:
‘We have the video showing banned from law practice Paul Young coercing frank who is barely awake eyes closed cant read shit and respond timely and makes no effort to actually speak or listen’.
[215] Vincent replied to that text saying: “he wasn’t always incoherent I saw him a couple of hours a day at least”. In response to Vincent’s text, James texted him saying:
“[Frank] couldn’t remember anything he was saying. Or anything told to him. With 100 per cent compliance from nurses. Lily especially but when I was middleman in their conversations acting as a filter…[Frank] wanted to only pay for Dylan University after I convinced him to but not initially. He told me he would live another 20 years. He was absolutely bonkers”.
[216]On the same day, James texted Vincent saying:
“they dosed frank with haloperidol antipsychotic and fentanyl giving him the side effects of compliance, confusion and slurred speech. He was in no condition to write a will Vincent.
Vincent replied: “yeah they did it induced a psychosis.
[217] Other evidence that Lily was manipulative and devious came from the hospital notes. The notes recorded that Lily called the hospital twice on 8 May 2023, describing herself as Frank’s daughter and wanting a letter about his death. Lily accepted that she had made the call and described herself as Frank’s daughter. She claimed the purpose of the call was to get a death certificate.
[218] The hospital notes record a further call from Lily on 23 May 2023. This note recorded: ‘A certain Lily Li, identifying herself as partner of the deceased (not listed as the patient’s NOK) called / Says lawyer had asked to obtain a doctors certificate to confirm that Frank did not have dementia at the time he made the will.’ Lily admitted this call but denied claiming to be Frank’s partner.
[219] Also relevant is the evidence of Tania, referred to above, of Lily and Paul visiting Frank at home after he had discharged himself from hospital in an attempt to speak to Frank about his will. The most obvious explanation for that conduct would be that Lily brought Paul for the express purpose of getting Frank to make a new will and was not anticipating encountering Tania at the house. I accept the submission that Lily had attempted to manipulate Frank and had been devious in the period after Frank’s death.
[220] The most graphic evidence of undue influence comes from the video that recorded the making of the will. There appeared to have been at least six people in the hospital room including the four who stood to benefit most significantly from what was in the will: Lily, James, Vincent and Dylan. The two friends of Lily who witnessed the will were also in the room after Lily had been unable to get the nursing staff to witness the will.
[221] The mere presence of beneficiaries in the room at the time when a will is being made can raise a concern as to undue influence. However, the facts of this case go much further than the mere presence of beneficiaries. The video shows that Lily and
James, in particular were active in suggesting to Frank what should be in the will and that Paul and Lily communicate in Mandarin about what should be in the will without any of that being translated for Frank.
[222] Although Paul denied having discussed with Lily, prior to the making of the will, what should be in it, some of the questions that he asked of Frank indicate that this can’t be correct. At 05:37 Paul says to Frank, with reference to Lily “for instance, did you…agree to pay her mortgage?” At 05:53 Paul says “you are willing to pay her mortgages, right?” At 06:04 Lily speaks directly to Frank and says: “How much do you want to help?” Frank’s response is unclear, and Paul then asks Frank “How much?” Frank doesn’t answer and the only identifiable words he says are “thousand. How much?” Lily again directly addresses Frank and says “50 thousand, can you give 50 thousand?” Frank’s response seems to be “and more”. Lily then says “Huh?” and Paul says “more”. Frank’s response to that is unintelligible and Lily says “Hundred thousand?” Frank says “More”. Paul, speaking in Mandarin, says “More” and Lily says “500 thousand?” Frank says “Yeah”.
[223] At 06:41 Vincent directly addresses Paul and tells him that Frank told him that Lily did not want to share the $500,000 with her partner.
[224] At 07:06 Lily says to Frank “Thank you Frank, and “So helpful pay the (unclear) big chunk of mortgage off”. She then reaches over to Frank and holds him. At 07:54 the video shows Lily reaching over again to hold Frank’s hand.
[225] At 08:35 Paul says “that’s it, that’s alright?” and Lily responds to that saying “One house for him and one house to him” James then interjects and says “You have to say how much the other siblings get.” Before Frank is able to reply, Lily says “so you don’t need to give any other one.” James then says “Tania, Aloma, Petaia, Jed” and Paul responds to that by saying “no”.
[226] James then asks “How much does Tania get? How much does Jed get?” and Lily responds by saying “Tania doesn’t need it because she said before if she gets something it will affect her benefit”. Lily continues on, saying “Number nine is for him” pointing to James and “Number 16 goes to him” pointing to Vincent.
[227] It is also Lily, not Frank, who states that it is to be Vincent who will be responsible for looking after Petaia under the will.
[228] At 10:43 James is recorded instructing Frank as to what he must put in his will saying “Vincent needs to receive Petaia’s benefit to look after him”. At 10:46 Lily says to Frank “Yeah, so basically Vincent in charge with Petaia’s personal care and also his benefit” and Frank nods in response.
[229] At 12:17 Paul asks “anything else?” Frank looks at Lily, Lily then asks Frank “How much you want to help Dylan for the university?” Frank’s response is unclear.
[230] Lily then speaks to Paul in Mandarin saying “…whatever left over cash, ah, for Dylan”. At 12:36 James talks directly to Frank and says “Before when you were talking to me, you said every child gets 1/6”. Frank nods in response.
[231] Paul looks at Frank and says “no, you want to change or not?” Lily responds by saying “Tania doesn’t need it. Petaia doesn’t need it.” Shortly afterwards Lily says to Frank “Aloma, you don’t want give her anything? No, not anything? No, nothing. She’s on benefit, nothing. So basically just [James] and Vincent get a house”.
[232] Between 13:24 and 13:50 James addresses Frank directly about the residue. At 13:24 James said “Jed, Vincent, and me. Equal of the 1/3 of the remainder”, at 13:38 he says “you cant just give him [Dylan] the rest”, at 13:50 he says “oh ok, we can make him a make it a ¼”.
[233] At 13:52 Paul says “ok that’s it” without looking at Frank for approval. At 16:01 while looking around the room Paul then says “you’re happy?”
[234] These facts support a conclusion that Lily had manipulated Frank in the past and was actively manipulating him during the drafting of the will. The video evidence also demonstrates that Lily, and James were both directly influencing the content of the will including making comments direct to Paul about who was to get what. Paul is clearly taking instructions from both Lily and James. Lily is directly interacting with Frank including holding his hand and thanking him for his bequest to her. It is
clear that the will is not the product of Frank’s free will but largely the product of the influences exerted by Lily and James.
[235] Far from Paul acting as an independent lawyer protecting Frank from the effects of the influence being exerted on him by the beneficiaries, Paul does nothing to assure himself of Frank’s capacity to understand what it is he is doing and is happy to take direct instructions from both Lily and James when Frank’s drowsiness, incoherence and apparent lack of ability to express his views in coherent sentences should have sounded alarm bells.
[236] In the case of Gorringe v Pointon28 Walker J, in circumstances far less egregious than this, noted that a failure to conduct a capacity test was ‘regrettable’.
[237] In term of the language used by the Court of Appeal in Green v Green29 I am satisfied that, on the balance of probabilities, undue influence has been established. That, in addition to lack of capacity, is a ground for invalidating the 8 April will.
Outcome
[238] As a result of the findings of lack of testamentary capacity and undue influence the 8 April 2023 will is invalid. As there was no suggestion by any party that the 14 December 2010 will was invalid, it is the will to which probate should be granted.
Costs
[239] I invite the parties to settle costs between themselves however, if costs cannot be agreed, James has 10 days from the date of this decision to file and serve an application. Lily has 10 days from receipt of James’ application to file a memorandum in reply. I will then deal with costs on the papers.
Churchman J
28 Gorringe v Pointon [2022] NZHC 342 at [97].
29 Above n 21.
Solicitors:
Evolution Lawyers, Auckland for Applicant
Webster Law, Auckland for First and Sixth named Respondents McLean Law, Auckland for Second named Respondent
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