Lochhead v Dawson
[2023] NZHC 672
•30 March 2023
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 these out from Woodward v Smith:
(1)Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.
(2)It is essential to the exercise of such a power that a testator:
(i)understands the nature of the act and its effects; and also the extent of the property of which he is disposing;
(ii)is able to comprehend and appreciate the claims to which he ought to give effect;
(iii)be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
(3)Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But
(i)though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.
1 O’Neill v O’Neill [2018] NZHC 1356.
2 Gorringe v Pointon [2022] NZHC 342 (footnotes omitted).
(ii)It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.
(4)It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
(5)In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
(6)A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
(7)Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all;
(8)Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.
(9)But if that standard is not met, he will lack capacity.
...
[82] Where a will is duly executed and appears rational on its face, the court presumes capacity ...
Undue influence
[9]As to the principles relating to undue influence, Walker J recorded:
[151][These] were comprehensively stated by Winkelmann J in
Green v Green:
(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.
(d)The question of whether a transaction was brought about by undue influence is a question of fact. A party can succeed in establishing this either directly by proving “actual undue influence” or recourse to an evidential presumption which arises where it is established that
(i)The person said to have subject to undue influence placed trust and confidence in the other; and
(ii)The transaction called for an explanation.
…
(h) The presence of independent advice is one of many factors that may be taken into account in determining whether undue influence is proved. Whether the independent advice helps to establish that the transaction was the result of person’s free will depends on the facts of the case. Independent advice can help establish that a person understood the decision they were making. But establishing that a person fully understood the act is not the same as establishing that the act was not brought about by undue influence. A person can fully understand an act and still be subject to undue influence.
[152] What is required is to show not just influence but influence which is undue. In short, pressure overbearing the will of the testatrix ...
Evidence
[10] I have affidavits, including in reply, from the parties. I also have affidavits from Mrs Leonie Lochhead, who is married to Jim Lochhead, and from Mrs Dawson’s husband, Mr Gary Dawson. Also in evidence are the deceased’s medical records and the file of Cooney Lees Morgan (“CLM”). CLM have been the family’s longstanding solicitors and Ms Deeanah Winders, an associate of the firm, was the person principally involved in attending to the deceased’s instructions.
[11] In the following section, I shall set out what the evidence shows, and then come back to the issue of whether the applicants have discharged their burden.
Will
[12] As I have said, the deceased executed the will on 24 January 2020. The deceased was aged 93 at the time and he died approximately 18 months later. The will, which is valid on its face, provides as follows.
[13] First, Jim and Peter Lochhead are to have the deceased’s interest in the D W Lochhead & Sons Partnership (“partnership”). The deceased and his sons established the partnership in the 1970s, and each had an equal share. Jim Lochhead’s evidence is that the deceased’s interest in the partnership is worthless. Mrs Dawson and Mrs Adcock do not accept this, as they say the information required to value the interest has not been disclosed, despite request.
[14] Secondly, Mrs Dawson and Mrs Adcock are to have the deceased’s principal residence or, if sold (which it was by the date of death), a sum equivalent to the net proceeds of sale, in equal shares. Likewise such cash at bank as the deceased had as at the date of death.
[15] Thirdly, the residue of the estate is to be divided between the four children equally. I assume that the residue consists largely of the deceased’s personal items and chattels.
[16] The deceased appears to have made the dispositions in favour of his daughters, rather than to all of the parties in equal shares, because he believed he had benefited his sons during his lifetime, and because Mrs Lochhead had departed from an agreement between them as to how they would leave their estates, and that this departure had been to Mrs Dawson’s and Mrs Adcock’s disadvantage.
History
[17] After their marriage in 1950, the deceased and Mrs Lochhead farmed land that had been in the Lochhead family for some time.
[18] In 1970 or thereabouts, they subdivided the land, but retained two blocks, SA15D/1128 and SA15D/1129 (“1128” and “1129” respectively). Each block comprised approximately 4 ha.
[19] The deceased and his sons formed the partnership in about 1977 and thereafter began establishing an orchard on 1128 and 1129. At about the same time, the deceased entered into agreements with his sons as regards 1128 and 1129. He agreed to sell a half share in 1128 to Jim Lochhead and to sell all of 1129 to Peter Lochhead. The land was not transferred at the time, and the purchase price was to be agreed in due course. The Lochheads’ matrimonial home was on 1128.
[20] In 1980, at about the time the deceased and Mrs Lochhead separated, the arrangements concerning the land were put into effect. The deceased transferred a half share in 1128 to Jim Lochhead, and all of 1129 to Peter Lochhead. Each executed an acknowledgement of debt for the purchase price, being $53,568 and $64,058 respectively, these sums being interest free but repayable on demand.
Matrimonial Property Act orders
[21] In late-1985, the Court made orders under what was then the Matrimonial Property Act.
[22] The deceased retained the couple’s remaining half share in 1128 and the right to receive the debts due from Jim and Peter Lochhead.
[23] The deceased made demand of Jim Lochhead in 1986 and of Peter Lochhead in 2004. Both paid the agreed purchase price.
[24] The deceased’s view appears to have been that the transactions by which his sons acquired the land were advantageous to them. Mrs Dawson and Mrs Adcock agree with this assessment. First, Mrs Adcock says that the purchase price agreed in in 1980 compared favourably to the price she and her husband paid to a third party for a block of inferior land nearby, at about the same time. Secondly, no deposit was required to be paid, and nor was any interest paid notwithstanding the length of time that elapsed before demand for the purchase price was made. Thirdly, the partnership
leased, and thus paid rent, for the land from inception. Fourthly, Jim Lochhead was able to build a house on the land (in about 1976) before he had an ownership interest. Fifthly, 1128 was subdivided in 2003. The deceased retained and then sold the “homestead block” which comprised approximately 3,500 m2 and apparently ceased to contribute labour to the partnership. In 2006, the deceased transferred his interest in the balance of the land to Jim Lochhead, apparently without the payment of any additional consideration. Accordingly, in the fullness of time, Jim Lochhead received all of the approximately 4 ha, less 3,500 m2.
[25] Jim Lochhead’s evidence is that it should not be assumed that the terms on which the land was transferred were favourable to him and Peter Lochhead. Orcharding has had its ups and downs, including the PSA virus which affected kiwifruit growers. Whilst the land is valuable now, that has not always been the case, and also he and his brother have invested considerable time and money in the business. In addition, they say the deceased continued to receive a third of the income from the partnership even after 2003, and that his partnership account was overdrawn by
$44,000 as at the date of death.
Mrs Lochhead
[26] Under the matrimonial property orders, Mrs Lochhead received the couple’s 70 per cent interest in a commercial building they had acquired in 1978. On the purchase of that building, the children each had a 7.5 per cent share. There was a rearrangement of the children’s interests subsequently, under which Jim and Peter Lochhead transferred their shares in the building to Mrs Dawson and Mrs Adcock, giving the latter a 15 per cent share each. No one can quite recall why this was done. In any event, following the matrimonial property orders, Mrs Lochhead had a 70 per cent interest in the building, and Mrs Dawson and Mrs Adcock each had 15 per cent. Mrs Dawson and Mrs Adcock each executed an acknowledgment of debt of $15,000 for their interest. Mrs Lochhead subsequently forgave those debts.
Agreement
[27] Despite their separation, Mr and Mrs Lochhead reached agreement on how each would dispose of their estate on death. In particular, on her death Mrs Lochhead
was to leave her interest in the building to Mrs Dawson and Mrs Adcock in equal shares.
[28] The deceased referred to this agreement in a memorandum accompanying a will he made in December 1990. In that, the deceased said that he had left his estate entirely to his sons as Mrs Lochhead was going to do likewise to Mrs Dawson and Mrs Adcock.
[29] It is also clear that the parties knew of the agreement at or about the time it was made.
[30] Mrs Dawson’s evidence is that she and Mrs Adcock were with Mrs Lochhead at a meeting at CLM at the time of the matrimonial property orders; that Mrs Lochhead was upset that she was not to have an interest in the land given how hard she had worked; but said that she now owned the building and that it would go to them when she died, as the sons had the land and would receive their father’s interest in the partnership. Mrs Dawson states that Mrs Lochhead repeated this on many occasions.
[31] In addition, although Jim Lochhead denied the existence of the agreement in his first affidavit, in response Mrs Dawson produced a handwritten note that he had written to Mr Michael Cooney of CLM in 1990, saying:
... Mum has left the building to Sheryl & Kathryn only. The balance of her Estate has been left to her grandchildren (unit and chattels) ...
[32] In light of this, Jim Lochhead accepted in a subsequent affidavit that there was such an agreement and that he must have known of it at the time.
[33] When Mrs Lochhead died in 2011, it became apparent that she had departed from the agreement. It transpired that in 1992, Mrs Lochhead had settled a family trust of which all four children were beneficiaries and that she had then transferred her shares in the commercial building to the trustees, retaining only a few.3 In accordance
3 Mr Gudsell KC noted in his submissions that Jim Lochhead (an accountant) had said in his evidence that he had assisted his mother with settling the trust, and asked the Court to note that Jim Lochhead had done so within two years of the handwritten note referred to above. However, nothing turns on that point for present purposes and no more need be said about it.
with a memorandum of wishes Mrs Lochhead had executed, on her death the trustees of the trust allocated what had been her 70 per cent interest between her children equally, that is 17.5 per cent each. Accordingly, Mrs Dawson and Mrs Adcock did not come to hold a half share in the building as agreed and expected, but a 32.5 per cent share, and Jim and Peter Lochhead 17.5 per cent each.
[34] In addition, Mrs Lochhead left her residential property to her grandchildren in equal shares. Mr and Mrs Dawson do not have any children but Mrs Dawson’s siblings do. The residue of the estate (largely personalty as I understand it) was left to Mrs Dawson and Mrs Adcock in equal shares.
[35] Mrs Dawson’s evidence was that, whilst she knew that Mrs Lochhead had departed from the previous agreement, she accepted this was what her mother wished. Moreover, as an executor of her mother’s will, she considered it her responsibility to give effect to those wishes, without complaint. Mrs Adcock’s evidence is that she was not as sanguine about the matter but considered herself unable to pursue the issue, and thus had to accept it.
Post-2011
[36] Mrs Dawson’s evidence is that, after Mrs Lochhead’s death, the deceased complained to her that Mrs Lochhead had not honoured their agreement and that, as time went on, he said with increasing frequency that he wished:
... to fix this because he felt it was unfair and not what was intended. He was truly disappointed that their agreement about the commercial building had been broken and did not agree with the grandchildren each getting a share in Mum’s house ...
[37] Mrs Dawson’s evidence is that her standard reply to this statement was that the deceased should not worry about it, and that Mrs Lochhead had done as she wished and that she had every right to do so. Jim Lochhead disputes that there would have been any such conversations as the deceased was not in the habit of discussing such matters with his children.
[38] Mrs Dawson’s evidence continues that, in mid-2019, the deceased asked her directly whether Mr Cooney “had done what he [the deceased] had asked him to”. Mrs Dawson’s understanding was that the deceased was referring to his will.
[39] Mrs Dawson’s evidence is that she told the deceased she did not know what Mr Cooney had done. Her evidence is that the deceased became more persistent on the matter and then, in late-December 2019, asked her to make an appointment with CLM. Mrs Dawson told her father that CLM would be closed over Christmas. In the New Year, her father reminded her to telephone which she did.
[40] Mrs Dawson spoke to Ms Winders on 17 January 2020. Mr Cooney had retired by then. It was arranged that Ms Winders would visit Mr Lochhead at his home on 21 January 2020, which Ms Winders did. The will was executed later that week. I refer to CLM’s file below.
[41] Both Jim and Peter Lochhead knew on or about 24 January 2020 that their father had, at the very least, been discussing his will with his solicitors but neither questioned his capacity to do so at the time.
[42] By July 2020 the deceased was unwell. He had been admitted to hospital for cellulitis and there is some suggestion in the medical notes that he had had a stroke. A doctor made an assessment of the deceased’s capacity, to determine whether enduring powers of attorney that the deceased had given to Mrs Dawson and Jim Lochhead should be invoked. Although those powers of attorney never were invoked, the deceased was assessed as being mentally incapable because he was not wholly competent to manage his own affairs in relation to his property or to make a decision about his personal care and welfare. The health practitioner completing the certificates considered that the deceased was likely to have vascular dementia, amongst other complaints. The deceased relocated to a retirement village, rather than returning home, on his discharge from hospital.
[43] In November 2020, Jim Lochhead asked the deceased whether he had given any further thought to what should happen to his residential property. The deceased said he wished to sell. Mrs Dawson’s evidence is that the deceased was actively
involved in the sale, choosing the agent and setting the reserve, following a family discussion regarding the same. Jim Lochhead’s evidence is that, whilst the deceased was involved, it was more for his self-esteem rather than anything else. Whatever the position may be, Mr Dawson produced a recording of the deceased watching the early-2021 auction of the property, online. It is clear the deceased was following the bidding intently, and was pleased with the price achieved, which exceeded expectations by a substantial margin.
Ms Winders’ file
[44] The will was circulated shortly after the deceased’s death in July 2021. Counsel for Jim and Peter Lochhead requested a copy of Ms Winders’ file, and there was subsequent correspondence between counsel and Ms Winders regarding the circumstances in which the will was made. These documents are before me, although there is no affidavit from Ms Winders.
21 January 2020
[45] The first document is Ms Winders’ file note of her attendance on the deceased on 21 January 2020. Ms Winders records that Mrs Dawson was present when she arrived at the deceased’s house, and that the deceased was lying down as he was tired. Apparently, he had been gardening the previous day, although the applicants are highly sceptical of this evidence. They say their father would have been incapable of any such thing.
[46]Ms Winders’ file note of her attendance records the following:
(a)Mrs Dawson and Ms Winders had intended that Mrs Dawson would assist Ms Winders to explain the firm’s “client care” letter, and then leave, with Ms Winders remaining to discuss matters with the deceased. However, the deceased asked Mrs Dawson to stay, which she did. Mrs Dawson confirms this in her evidence.
(b)Ms Winders asked the deceased if he knew why she was there. He said “no”. Mrs Dawson explained why Ms Winders was there at which point the deceased confirmed that he wished to alter his will.
(c)Ms Winders did not consider the deceased “particularly clear on his assets”. He knew that he still had an interest in income from the partnership; confirmed that the two houses on the land previously referred to were now owned and occupied by his sons; was clear that he still wished his sons to have his interest in the partnership; and said that his house should go to Mrs Dawson and Mrs Adcock in equal shares.
(d)Although the deceased said he had no other assets, after further enquiry he said that he had a bank account. At his request, Mrs Dawson located recent bank statements which disclosed that he had approximately
$165,000 in the bank.
[47] Ms Winders’ file note records that the deceased was tired, and at times struggled to understand what she was talking about. However, Mrs Dawson would reiterate Ms Winders’ questions “in a more straightforward way” which he would “happily answer”.
[48] Ms Winders asked the deceased how the proposed change in the will had come about and he “very quickly said because the old one was unfair”. He was clear that he wished Mrs Dawson and Mrs Adcock to have the house and his sons the interest in the partnership but he was not so clear as to what should happen with the cash in the bank.
[49] Ms Winders’ file note records that they discussed several different scenarios regarding the cash and then she suggested she should come back, given that the deceased was tired. The deceased did not wish her to do that. Ms Winders’ note is to the effect that Mrs Dawson said to the deceased:
... in a very straight forward manner whether or not he would like to leave his bank accounts to any of his children specifically or to them equally and he responded that they should all receive the bank accounts equally ...
[50] Ms Winders said she would prepare a will on that basis. She asked the deceased if he was willing that she should forward a copy to Mrs Dawson’s email address, which he was.
[51] Ms Winders’ file note is to the effect that, as she left, Mrs Dawson said her father was distressed about what he considered the unfairness of his existing will given, in short, that Mrs Lochhead had departed from their agreement, and that he also thought he had made changes to the will in 2012 with Mr Cooney. There is no other evidence of any instructions to Mr Cooney. Subject to that possibility, however, the “existing” will was one the deceased had executed in 2007. This left his interest in the partnership to his sons with the residue of his estate (presumably then including his residential property) divided equally between the children.
22 January 2020
[52] Ms Winders emailed a draft of the will to Mrs Dawson on 22 January 2020. This draft reflected the deceased’s instructions of 21 January 2020. In her covering email, Ms Winders said that she “identified a couple of issues during my meeting with your Dad” but that “he was very clear that his current will is unfair and he wants to change it”.
[53] Mrs Dawson’s evidence is that she took the draft to the deceased, but did not read it, given that it was his document. He asked her to arrange for Ms Winders to come back on 24 January 2020.
24 January 2020
[54] Ms Winders returned to the house on 24 January 2020 with a summer clerk. Mrs Dawson was not present. The documents on Ms Winders’ file and her letters to the applicants’ counsel are to the effect that she expected the deceased to execute the will, hence the presence of the summer clerk as a witness. However, when he was reading the will, the deceased asked Ms Winders to amend it, so that the contents of the bank accounts would also go solely to Mrs Dawson and Mrs Adcock, in equal shares. On the basis of Ms Winders’ time sheet, this meeting was 48 minutes long.
[55] In a letter to counsel for the applicants of 22 September 2021, Ms Winders states that she questioned the deceased about this instruction because it would effectively leave nothing in the residue of his estate.
[56] A copy of the first draft of the will, which came to light relatively late in the piece, shows Ms Winders’ handwritten notes recording the amendment the deceased requested regarding his bank accounts. It also records that Ms Winders was to prepare a declaration for the deceased, saying why Mrs Dawson and Mrs Adcock were getting more from the estate than their brothers.
[57] Having received these further instructions, Ms Winders returned to her office, made the necessary amendments, prepared the draft declaration, and then returned to the deceased’s home with her summer clerk. The deceased then executed the will and the declaration. Time engaged was 24 minutes.
[58]The deceased’s declaration states:
DECLARATION TO ACCOMPANY WILL OF EVEN DATE
I DONALD WILLIAM LOCHHEAD of Tauranga, Retired declare as follows:
1.l have executed a new Will of even date.
2.I wish to record the reasons for my decision to leave my principal residence and bank accounts held in my name at the date of my death to my daughters, SHERYL LORENE DAWSON and KATHRYN ANNE ADCOCK, so that in the event of there being any challenge to my direction, my reasons can be clear for all to see:
(a)During my lifetime, my sons WILLIAM JAMES LOCHHEAD (Jim) and PETER IAN LOCHHEAD received the orchard property situated at Te Puna Road which I received and is referred to in Matrimonial Property Orders FP No. 30/303/85 dated 15 October 1985 (“Orders”).
(b)It was my understanding that my former wife would leave her share of the commercial building referred to in the Orders, to our daughters, Sheryl and Kathryn. This was to be done so that each of our children would receive a fair share of the assets we created during our relationship. I understand that this did not happen as all four of our children have each received a share of this commercial building.
(c)In making the decision to leave the bulk of my estate to my daughters, I have carefully considered my obligations to all of my children and the benefits they have already received from me. I don’t think it is fair that my sons received a share of both the orchard and commercial property when my daughters only received a share of the commercial property. My sons have also had the benefit of the income the orchard generates through the orchard partnership known as Lochhead and Sons. My Will leaves my interest in this partnership to my sons equally.
(d)I believe that I have met my duty to provide for my sons from my assets both during and after my lifetime.
(e)I believe that the Will I have signed today gives a fair outcome to all of my children.
...
[59] As the applicants say, the declaration purports to have been made at Matamata. In a letter to the applicants’ counsel, Ms Winders said that was a typographical error on her part.
31 January 2020
[60] Ms Winders made her own declaration on 31 January 2020, presumably with a view to probate, and this records as follows:
DECLARATION TO ACCOMPANY WILL
I DEEANAH ROSA WINDERS of Tauranga, Solicitor declare as follows:
1.I was one of the witnesses to the Will of DONALD WILLIAM LOCHHEAD (“Testator”) who executed his new Will of 24 January 2020.
2.The Will document was signed in front of me.
3.It was clear that the Will was executed by means of a shaky signature. While the signature itself shows sign of some impairment, after appropriate challenges and questions as to the understanding, and appreciation of aspects of the Will and consideration of those whom responsibility was required, it was my opinion that the Testator had full capacity and understood clearly the contents and the intent of the Will, notwithstanding that the signature might indicate a degree of infirmity.
4.It is my opinion that the Testator appropriately considered, understood and was aware of the contents of the Will at the time of the signature and that the signature was affixed to the Will in my presence.
[61] In a letter to Ms Winders of 15 October 2021, counsel for the applicants questioned Ms Winders about the change in the draft will regarding the bank accounts, and expressed the applicants’ regret that Ms Winders had taken instructions from Mrs Dawson regarding the “history of transactions and arrangements within the family without making any further enquiries”. Ms Winders’ response of 27 October 2021 was that the deceased had given her the fresh instruction regarding the bank accounts on 24 January 2020, that Mrs Dawson was not present at the time, and that she had not taken instructions from Mrs Dawson regarding the history of transactions, but from the deceased. Ms Winders also said that she had made independent enquiry to confirm the deceased’s instructions to her, including locating and reviewing the matrimonial property orders and probate of Mrs Lochhead’s will.
Medical records
[62] The applicants referred me to several items in the deceased’s medical records between mid-November 2019 and July 2020.
[63] It is apparent from these that the deceased was in severe pain from an historic injury to his back; that health professionals were endeavouring to identify the correct dose of pain relief; and that the constant pain was causing the deceased to be in a “very low mood”. The medical records also suggest Mrs Dawson thought her father might require anti-depressants, and that his compliance with his medication regime was questionable.
[64] However, none of the broadly contemporaneous reports refer to any concern as to the deceased’s comprehension or cognition or other matters which might raise a doubt as to his testamentary capacity on 24 January 2020. Moreover, it bears noting that the records include a five-page report of what was said to be a comprehensive geriatric assessment by the local “Health In Aging Community Response Team”. This report, dated 19 December 2019, lists attendances on the deceased at his home between 18 November 2019 and 12 December 2019, at which point a note was made that no further intervention was required at that time. It is safe to assume that a health professional carrying out a geriatric assessment would be aware of the risk of cognitive decline in someone of the deceased’s age. However, the only reference to cognition
is that this was “mostly good but has some short term memory loss”. The issues identified in the report were chronic back pain, a low mood and extreme frustration as a result, limited mobility and increasing isolation. Equally, this report records that the deceased was living independently, reading the newspaper, managing his finances, and his medication.
[65] It is clear — and indeed common ground — that the deceased’s health deteriorated as 2020 progressed. I have addressed the relevant matters in [42] and it is unnecessary for me to say more on that point
Parties’ evidence
[66] I turn now to summarise the parties’ observations of their father and his health. As has been noted in similar cases, the evidence tends to be consistent with each side’s desired outcome. No doubt this is inadvertent but it does affect the weight it is proper to place on the evidence.
Applicants
[67] Jim Lochhead’s evidence is to the effect that, at the material time, the deceased was on a great deal of medication for pain; that he was depressed; drank whisky, sometimes to excess; and that he was increasingly frail in late-2019 and early-2020. In his first affidavit, Jim said the applicants wished to engage an expert to review the deceased’s medical records and to provide a report on his likely capacity but no such report has been produced.
[68] To the extent his evidence differs from this, Peter Lochhead’s evidence is that he noticed a change in the deceased in late-2018; that the deceased lost his energy and was usually lying on his bed when Peter visited; that the deceased withdrew from social situations and complained of not being able to remember the names of people and, as a result, was reluctant to go out; that in 2019 the deceased was often having skin cancers removed; and his medication was increasing.
[69] The applicants also contend that the deceased was mistaken in his declaration about whether they had benefitted from their share of the land and the income it generated.
Respondents
[70] It is clear that all of the parties, and their spouses, were attentive to the deceased. However, Mrs Dawson and Mrs Adcock were very regular visitors, often calling in daily, including to cook meals and to run errands for him. It is also clear from the medical records that Mrs Dawson sought to ensure that the deceased’s medical needs were attended to, without delay.
[71] Mrs Dawson agrees that the deceased was in considerable physical pain but says she saw no evidence that he lacked the capacity to make decisions regarding his affairs. She says the deceased had a “high level of clarity” about what was required to be done in his garden; about his particular food requirements (Mrs Dawson did his shopping); about any clothing he required; and he remembered what bills had to be paid. He also noticed when Mrs Dawson inadvertently gathered up his papers with some of hers one day. Mrs Dawson’s evidence is that the deceased was mentally alert; read the local newspaper daily (confirmed in the geriatric assessment to which I have referred and in Mrs Adcock’s evidence); was able to discuss articles that took his interest; and that he engaged with family and visitors, including with work colleagues who were with her on occasions. She also says that the deceased enjoyed being part of celebrations at her house on Christmas Day 2019. She agrees that the deceased was not always compliant with his medication regime; says the deceased became more and more frustrated with pain following an operation for a skin cancer in March 2020; suffered from a low mood; that he did, on occasion, drink too much; but that it was not until April/May 2020 that his health began to deteriorate seriously.
[72] Mrs Adcock’s evidence is to similar effect. She also accepts that the deceased had trouble managing his pain and did become depressed but she did not consider there was any impact on his mental ability or alertness. She found him to be quick witted and direct. Aside from reading the paper every day, he watched sport on television. She disputes that the deceased was very frail and unwell in late-2019 and early-2020
as she would find him in his garden, paying the person who came to mow the lawn and “having a yarn”.
Discussion
[73] After this lengthy review of the evidence, it is then necessary to return to the central issue which is whether the evidence applicants have shown cause, in the sense to which I have referred, for a full enquiry as to the validity of the will.
[74] As to testamentary capacity, the will and declaration are rational on their face. Whatever contest there might be as to the precise benefit of the transactions concerning the land, the events referred to in (a) and (b) of the declaration did in fact occur, and
(c) reflects a view that the deceased is said to have expressed to Mrs Dawson on many occasions.
[75] Moreover, both the will and declaration were prepared by a solicitor who herself made a declaration a week after the will was executed, to the effect that she considered the deceased had “full capacity” when he executed the will.
[76] I note that in her file note of 21 January 2020, Ms Winders records that the deceased said that he did not know why she was present and, initially, said that he did not have any other assets, aside from his interest in the partnership and his residence. However, I also take into account that the deceased was plainly tired that day, and he did recall in the course of the discussion that he had a bank account(s). The deceased was also clear that he wished to alter his will, and why he wished to do so.
[77] Coming forward to the date of execution, the deceased met Ms Winders and the law clerk that day. The deceased appears to have been reflecting on his instructions of 21 January 2020, given his request of Ms Winders to amend the draft so as to leave the sums at the bank to his daughters. Moreover, in a letter to counsel, Ms Winders stated that the deceased maintained that instruction despite her questioning him about it at what was a relatively lengthy meeting.
[78] Turning to the evidence as to the deceased’s state of health at the relevant time, clearly he was in pain, on medication, and at a low ebb. The evidence does not go
beyond that, however. Nothing in the medical records evidences any concern on the part of health professionals as to the deceased’s cognition as at 24 January 2020. This is despite the fact that his health was being attended to and checked on regularly.
[79] Fifthly, although Jim and Peter Lochhead knew in January 2020 that their father was considering his will, they raised no issue as to his testamentary capacity. Nor did they question his capacity later that year to make a decision on whether to sell or retain his residential property. Moreover, although counsel for the applicants submits that the 2020 will represents an abrupt and objectively unjustified departure from the earlier 2007 will, for the reasons Mr Gudsell KC submitted I am not persuaded that it does. As Mr Gudsell submitted, there is no reason why the deceased should have known of his wife’s intentions prior to her death, and at least on Mrs Dawson’s evidence, the deceased was concerned thereafter that Mrs Lochhead’s departure from the agreed course meant that it fell to him to achieve what he considered a fair distribution of the family’s assets.
[80] In those circumstances, and having regard to the principles set out in the quote at [8] above, I do not consider the applicants have shown any cause for a full enquiry into the deceased’s testamentary capacity.
[81] Turning to undue influence, this would require the applicants to establish some fact or circumstance that indicated Mrs Dawson may have exercised influence on the deceased’s will, and that such influence was undue in the sense referred to in (c) of the quote at [9] above.
[82] Again, I do not consider that the applicants have done so. There is no evidence that Mrs Dawson exercised any influence on the deceased’s will, let alone undue influence. I note also that when the deceased met Ms Winders on 24 January 2020 he had every opportunity to speak freely to her, as Mrs Dawson was not present. Despite this, the deceased not only maintained his instructions regarding his residential property, but he altered his instruction regarding the bank accounts in the manner I have already discussed.
[83] For the above reasons, the applicants have not shown cause as to why the order nisi should not be made absolute.
Result
[84]I dismiss this application.
[85]I make absolute the order nisi for grant of probate made on 10 May 2022.
[86]I reserve leave to apply in case further orders are sought or required.
[87] The applicants having failed, they must pay the respondents’ costs and disbursements. Counsel are to seek to agree those but may file short memoranda if unable to do so.
Peters J
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