Introduction Brief history The issues Testamentary capacity
The criticism of Courtney J’s approach Certain factual findings of the Judge The giving of instructions for the Final Will in late-April The execution of the Final Will Observations by others as to Allison’s mental and physical state Further written evidence Allison’s relationships with her family and expressed intentions The medical evidence
Our assessment of the evidence relating to testamentary capacity on 2 May 2014 Our assessment of the evidence relating to testamentary capacity on 29 April 2014 Conclusion on testamentary capacity The High Court costs award
Background Analysis
Costs in this Court Result
[1] [4] [17] [19] [26] [37] [46] [60]
[68] [75]
[81] [94]
[101]
[107] [112] [114] [114] [118] [125] [126]
Introduction
Allison Slater died on 8 May 2014 after suffering breast cancer. She was a widow and childless. The value of her estate was approximately $2,000,000. She had executed a will six days before her death on 2 May 2014 (the Final Will) in which she left her residuary estate to the two children of one of her two sisters. She excluded the two children of her other sister and the child of her sister-in-law. This was a significant change from a will she had executed on 9 May 2011 (the 2011 Will) in which her residuary estate was to be divided equally between all four of her sisters’ children and the child of her sister‑in‑law.
This appeal concerns testamentary capacity. In the High Court Courtney J found that Allison[1] lacked testamentary capacity when she signed the Final Will.[2] Accordingly, probate of the Final Will was recalled.
[1]We refer to the deceased Allison Slater throughout as Allison. We mean no disrespect to her in doing so and have chosen this course for ease of expression, and because it was the approach adopted by Courtney J in the High Court.
The appellants submit that Courtney J erred by effectively modifying the longstanding principles of testamentary capacity laid down in Banks v Goodfellow,[3] restated by this Court in Woodward v Smith.[4] They argue that Allison had sufficient testamentary capacity when she executed the Final Will on 2 May 2014. Alternatively, if she lacked testamentary capacity when she executed…
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.
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Details
AGLC
Loosley v Powell [2018] NZCA 3
Case
[2018] NZCA 3
Decision Date
CaseChat Overview and Summary
This appeal concerns testamentary capacity. Allison Slater, who died on 8 May 2014, had executed a will six days before her death in which she left her residuary estate to the two children of one of her two sisters. This was a significant change from a will she had executed on 9 May 2011 in which her residuary estate was to be divided equally between all four of her sisters' children and the child of her sister-in-law. In the High Court, Courtney J found that Allison lacked testamentary capacity when she signed the Final Will, and accordingly, probate of the Final Will was recalled. The appellants, Jennifer and Robert Loosley, submit that Courtney J erred by effectively modifying the longstanding principles of testamentary capacity laid down in Banks v Goodfellow, restated by this Court in Woodward v Smith. They argue that Allison had sufficient testamentary capacity when she executed the Final Will on 2 May 2014, and that alternatively, if she lacked testamentary capacity when she executed the Final Will, she nevertheless had testamentary capacity on 29 April 2014 when she instructed her lawyer as to the contents of the Final Will, and had sufficient knowledge and understanding of what she was doing for the rule in Parker v Felgate to apply. This Court found that the evidence displaced the presumption of testamentary capacity on 2 May 2014, and that the appellants had not discharged the burden of proving testamentary capacity when the Final Will was signed. The Court also found that the appellants had failed to establish testamentary capacity on 29 April 2014. The appeal is dismissed. The Court invites further submissions on costs.