Lochhead v Dawson - [2023] NZHC 672

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-0052

[2023] NZHC 672

UNDER section 61 of the Administration Act 1969

IN THE MATTER

of the ESTATE OF DONALD WILLIAM

LOCHHEAD of Tauranga, retired (deceased)

BETWEEN

WILLIAM JAMES LOCHHEAD and PETER IAN LOCHHEAD

Applicants

AND

SHERYL LORENE DAWSON and KATHRYN ANNE ADCOCK

Respondents

Hearing: 12 September 2022 (Heard at Hamilton)

Appearances:

G Brittain KC for Applicants

C T Gudsell KC for Respondents

Judgment:

30 March 2023

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 30 March 2023 at 11 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

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

Solicitors: Harris Tate, Tauranga
Nielsen Law, Hamilton

Counsel:G Brittain KC, Tauranga C T Gudsell KC, Hamilton

LOCHHEAD v DAWSON [2023] NZHC 672 [30 March 2023]

Introduction

[1] This judgment determines an originating application by the applicants, Mr William (Jim) Lochhead and Mr Peter Lochhead, of 24 May 2022 (“application”), seeking orders:

(a)discharging an order nisi for grant of probate made on 10 May 2022, pursuant to s 61(a) of the Administration Act 1969 (“Act” and “order nisi”); and

(b)that the respondents’ application for administration be made in solemn form.

[2] The respondents, Mrs Sheryl Dawson and Mrs Kathryn Adcock, oppose the application.

[3] The parties are the children of Donald William Lochhead and Eileen Lochhead (“Mrs Lochhead”), both deceased. Mr and Mrs Lochhead married in 1951 and separated in about 1980. Mrs Lochhead died in 2011.

[4] Mr Lochhead, to whom I shall refer as the deceased, died on 16 July 2021, leaving a will dated 24 January 2020 (“will”). It is this will that is in dispute.

[5] The will appointed the parties as executors and trustees. In early-January 2022, the applicants renounced their executorship, and lodged a caveat against the grant of probate of the will, pursuant to s 60 of the Act. The respondents then obtained the order nisi and the applicants made this application.

[6] The applicants contend that the deceased lacked testamentary capacity at the time he made the will, alternatively that he made the will in circumstances in which he was unduly influenced by Mrs Dawson.

[7] To succeed in their present application, the applicants must show cause as to why the order nisi should not be made absolute, that is show the existence of facts and circumstances which warrant a full enquiry into the validity of the will. The applicants

are not required to prove these facts and circumstances to the balance of probabilities, but rather are required to present sufficient evidence to establish a real and actual foundation for a challenge to the validity of the will.1

Testamentary capacity

[8] In Gorringe v Pointon, Walker J set out the principles governing challenges to testamentary capacity and what will constitute undue influence.2 The salient parts of her judgment are as follows:

[80] The parties largely agree on the relevant principles for assessing testamentary capacity. I set…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lochhead v Dawson

Details

AGLC: Lochhead v Dawson [2023] NZHC 672
Case: [2023] NZHC 672
Decision Date: 30 March 2023

CaseChat Overview and Summary

This case involves an originating application by the applicants, William James Lochhead and Peter Ian Lochhead, seeking orders to discharge an order nisi for the grant of probate and to make the respondents’ application for administration in solemn form. The respondents, Sheryl Lorene Dawson and Kathryn Anne Adcock, oppose the application. The applicants contend that the deceased lacked testamentary capacity at the time he made the will, or that he was unduly influenced by Mrs Dawson. To succeed in their application, the applicants must show cause as to why the order nisi should not be made absolute, presenting sufficient evidence to establish a real and actual foundation for a challenge to the validity of the will.

The court considered the evidence presented by the parties, including affidavits, medical records, and the file of Cooney Lees Morgan, the family's longstanding solicitors. The court found that the will and declaration were rational on their face, and that the deceased had "full capacity" when he executed the will, according to the solicitor who prepared the documents. The court also noted that the deceased was clear about his intentions and why he wished to alter his will. While the deceased was in pain, on medication, and at a low ebb, there was no evidence of any concern on the part of health professionals as to the deceased’s cognition at the time of executing the will.

The court concluded that the applicants had not shown cause for a full enquiry into the deceased’s testamentary capacity or undue influence. The court dismissed the application, made absolute the order nisi for grant of probate, and reserved leave to apply in case further orders were sought or required. The applicants were ordered to pay the respondents’ costs and disbursements.

In summary, the court found that the applicants failed to demonstrate that the deceased lacked testamentary capacity or was unduly influenced by Mrs Dawson when executing the will. The court dismissed the application, granted probate, and ordered the applicants to pay the respondents' costs.

Orders