Marshall v Singleton
[2020] NZCA 450
•25 September 2020 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA569/2019 [2020] NZCA 450 |
| BETWEEN | PETER JAMES MARSHALL |
| AND | ANN ELIZABETH SINGLETON |
| AND | SUSAN HAZEL MARSHALL |
| Hearing: | 2 September 2020 |
Court: | Goddard, Ellis and Dunningham JJ |
Counsel: | C J O Orton for Appellant |
Judgment: | 25 September 2020 at 11.00 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant must pay costs to the respondents for a standard appeal on a band A basis, with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
Table of contents
Para No
Introduction and summary
Background
Relevant provisions of the Wills Act
The applications before the High Court
High Court judgment
Testamentary capacity
Testamentary intention
Conclusion in relation to s 14 of the Wills Act
Application for administration
Issues on appeal
The nature of the appeal
Testamentary capacity
Appellant’s submissions on appeal
Analysis
Testamentary intention
Appellant’s submissions on appeal
Analysis
Conclusion in relation to s 14 application
Orders made under s 19 Administration Act
Result
Introduction and summary
[1] James Marshall (James) died on 11 January 2018, aged 86. He left a will dated 11 April 2015 (the 2015 will) which divided his estate equally between his four adult children: Ann Singleton (Ann), Christine Marshall (Christine), Peter Marshall (Peter), and Susan Marshall (Susan).
[2] Peter says that shortly before James died he asked Peter to prepare another document which provided for a different distribution of his estate. That document was prepared by Peter. James did not sign it before he died. Peter applied to the High Court to have the unsigned document declared a valid will under s 14 of the Wills Act 2007 (the Act). If the unsigned document is recognised as a valid will, that would alter the distribution of James’ estate in favour of Peter and Christine and to the detriment of Ann and Susan.
[3] The High Court declined to make an order under s 14 of the Act validating the unsigned document as a will.[1] The High Court considered that Peter had not established that James had testamentary capacity at the relevant time. The Court also considered that Peter had not established that the document represented James’ unconditional testamentary intention.[2]
[1]Singleton v Marshall [2019] NZHC 2486, [2019] NZFLR 273 [High Court judgment].
[2]At [84].
[4] Peter appeals to this Court. We consider that the appeal must be dismissed. We agree with the conclusions of Venning J in the High Court. In short, we are not persuaded that at the time the unsigned document was prepared James had the necessary capacity to make a will. Nor are we persuaded that he had an immediate and unconditional intention that his estate should be distributed in the manner provided for in that document.
Background
[5] There was no challenge to the Judge’s factual findings. We therefore take our description of the relevant facts from the High Court judgment.[3]
[3]At [4]–[16].
[6] James was born in 1931. He married Shirley in 1954. They had four children and remained married until Shirley’s death in 1985.
[7] For some time there has been tension between the four children. They fall into two camps, on the one side Ann and Susan, and on the other, Christine and Peter. Christine and Peter have had more contact with James, particularly over recent years.
[8] James made two wills: the first on 17 December 1998 and then the 2015 will. Both the 1998 and 2015 wills provided for equal distribution of James’ estate between his four children. The only material difference is that the 1998 will appointed the Public Trustee as executor and trustee, but the 2015 will appointed Peter as executor and trustee.
[9] On 12 December 2017 James was admitted to hospital. On 15 December 2017, while in hospital, he was diagnosed with terminal cancer. James was discharged home on 22 December 2017 for palliative care. Because of his health he required assistance and care 24 hours a day, seven days a week.
[10] The family prepared a roster to provide 24-hour care for James. Christine and Peter took responsibility for administering the roster.
[11] On the morning of 30 December 2017 there was a mix-up in the roster arrangements. Although there had been a change to the roster, Christine had overlooked telling Ann and Susan. They arrived at James’ home in the morning. Christine’s son Anton was already there and caring for James. Anton called his mother. There was a dispute between Ann and Susan on the one hand and Christine and Anton on the other hand about what followed when Christine arrived at James’ home.
[12] Whatever took place on the morning of 30 December 2017, later that day Ann sent a text to Christine which read:
To avoid anymore animosity and hostility … Susan and I are withdrawing from the roster … we hope this will make things easier …
[13] Ann and Susan did not see their father James alive again after that day.
[14] Peter’s evidence is that after receipt of that text from Ann, which James learnt about, James told Peter he wanted to change his will and dictated the terms of the new will to Peter. Peter’s evidence was that this occurred later on 30 December 2017.
[15] James’ condition worsened. He was readmitted to hospital on 1 January 2018 before being discharged again on 3 January 2018.
[16] Peter prepared the document which he says recorded his father’s wishes. He dated it 2 January 2018 as that was the day he printed it out. He gave a copy of the document to James on 3 January 2018 when he was back at home after being discharged from hospital that day. James read it. Peter says James was happy with the document but he did not sign it.
[17] The document is in the form of a will. It names Peter as executor, provides that one-third of the fair value of James’ home is to be divided equally between Ann and Susan, and provides for the remainder of the estate to be divided equally between Christine and Peter. It reads as follows:
Will made by
JAMES MALCOLM MARSHALL
Of Auckland, Retired
dated 2 January 2018
Earlier Wills
I cancel my earlier wills.
Executor and Trustee
I appoint my son Peter James Marshall the executor and trustee of this will.Residue
I direct my trustee to hold the whole of my estate on trust:
To pay my debts and funeral expenses, my trustees administration expenses, and any death duty payable on my estate.
To divide the residue among my children as per the following;
One third of the fair market value of my home at 30 Cradock st Avondale, to be divided equally between my two children Ann Elizabeth Singleton and Susan Hazel Marshall.
As recognition for their unconditional love, support and comfort to me over many years the remainder of my estate is to be divided equally between my two remaining children Christine Jill Marshall and Peter James Marshall.
Living at my death
Signed by JAMES MALCOLM MARSHALL
In our presence and attested by us in his presence
[18] James’ estate primarily consists of his home at Craddock Street and investments worth approximately $100,000. On Peter’s estimate of the value of the estate, the 2015 will would see each of the children receive approximately $354,625. If the unsigned document is an operative will then Ann and Susan’s share would reduce to $216,666 each and Peter and Christine’s share would increase to $492,583.50 each.
Relevant provisions of the Wills Act
[19] Section 11 of the Act sets out the requirements for a valid will. A will must be in writing, it must be signed, and it must be witnessed by at least two witnesses in accordance with the specific requirements set out in s 11(4).
[20] Section 14 of the Act confers on the High Court the power to declare that a document that does not comply with the s 11 requirements is a valid will. It provides:
14 High Court may declare will valid
(1) This section applies to a document that—
(a) appears to be a will; and
(b) does not comply with section 11; and
(c) came into existence in or out of New Zealand.
(2) The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
(3) The court may consider—
(a) the document; and
(b) evidence on the signing and witnessing of the document; and
(c) evidence on the deceased person’s testamentary intentions; and
(d) evidence of statements made by the deceased person.
The applications before the High Court
[21] There were two applications before the High Court. Ann and Susan applied under s 19(1) of the Administration Act 1969 for orders for the administration of James’ estate pursuant to the terms of the 2015 will. Peter opposed that application, and applied to have the unsigned document declared a valid will under s 14 of the Act. Peter’s s 14 application was opposed by Ann and Susan.
[22] It was common ground before the High Court, and remains common ground, that the threshold requirements in s 14(1) are met in this case.[4] So the central issue is whether the test in s 14(2) is met: does the unsigned document express James’ testamentary intentions? More specifically, as the Judge noted, the focus in this case is on whether at the time the document was prepared, or at the time it was subsequently reviewed by James:[5]
[4]High Court judgment, above n 1, at [21].
[5]At [22].
(a)James had testamentary capacity; and
(b)if so, whether the document represented James’ (immediate and unconditional) testamentary intentions.
High Court judgment
[23] After setting out the relevant background, and outlining the principles that govern applications under s 14 of the Act, the Judge addressed each of the two issues identified above.
Testamentary capacity
[24] The Judge began his discussion of the issue of testamentary capacity by referring to the decision of this Court in Woodward v Smith, which sets out the long‑established principles relating to testamentary capacity:[6]
[6]Woodward v Smith [2009] NZCA 215.
[19] The celebrated judgment of the Court of Cockburn CJ in the Queen’s Bench (Cockburn CJ, Blackburn, Mellor and Hannen JJ) in Banks v Goodfellow (1870) LR 5 QB 549 remains the leading authority on testamentary capacity. We paraphrase and number the propositions stated in that case at 565-8:
(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.
[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.
[25] The Judge proceeded on the basis that because the unsigned document had not been formally executed as a will, no presumption of testamentary capacity applied. The onus was on Peter to establish on the balance of probabilities that James had testamentary capacity at the relevant time, as he was the party seeking to have the document validated as James’ will.[7]
[7]High Court judgment, above n 1, at [25]–[26].
[26] The Judge considered that there needed to be a time when James had both testamentary capacity and testamentary intention. These needed to coincide.[8] The Judge therefore considered that it was necessary to consider James’ testamentary capacity both on 30 December 2017, when Peter says the instructions to prepare the document were given, and on 3 January 2018, when Peter says that the terms of the document were considered by James and approved by him.[9]
[8]At [30]–[32].
[9]At [33].
[27] The Judge set out in some detail the evidence in relation to the events of 30 December 2017 and 3 January 2018. Peter’s evidence was that after learning that Ann and Susan were no longer going to be part of the care roster, James was terribly upset. Peter said James told him that he wanted to change his will to reduce the amount that Ann and Susan received. Peter said that James asked him to draft a will modifying the equal distribution provided for in the 2015 will. Peter said that in accordance with James’ instructions he prepared such a will. After it was prepared and while he was at James’ home Peter gave a copy of the unsigned will to James, who read it and confirmed he was happy with it.[10]
[10]At [37]–[38].
[28] Christine gave evidence that James was very disappointed by the developments in relation to the care roster. She said that James told her that he had changed his will. She described the conversation as follows:
Shortly afterwards when Dad and I were at his home he told me that he had changed his will. He told me that he had made this decision given that Susan and Ann were no longer going to look after him. He went on to say that Susan and Ann would now receive less than Peter and me. He did not tell me specific details of the new distribution or show me a copy of the new will. During the same conversation Dad told me that he had not yet signed the new will as he wanted to explain in a letter to Ann and Susan why he had changed the distribution.
[29] In her affidavit Christine did not specify the date on which this conversation took place. In cross-examination she said that she thought it was on 4 January 2018.
[30] Both Peter and Christine gave evidence to the effect that on both 30 December 2017 and 3 January 2018 James was alert and articulate and able to engage in conversations.
[31] Peter’s partner, Dianne Wilton (Dianne), also gave evidence. She described conversations Peter had with her about James’ request that Peter draft a new will. She said that after that, on at least three or four occasions when she was with James, he gestured to her mimicking to sign a document. Dianne said that she knew him well enough to know that he was indicating he wanted to sign the new will that had been prepared by Peter. She said that he asked her at least twice where it was and said he did not know how long he could hang on.
[32] Dianne also gave evidence that painted a generally positive picture of James’ mental capacity, saying he maintained that capacity up to around 7 January 2018.[11]
[11]At [46].
[33] The Judge also set out in considerable detail the evidence before the Court from three medical witnesses, two of whom were cross-examined. There was evidence from a general practitioner, Dr McLeay, who saw James at a consultation at the Avondale Health Centre on 27 December 2017. She considered that at that consultation James:
… appeared competent to have a discussion around Advanced Care Planning and stated that he would like active treatment for infection.
[34] Dr McLeay did not detect any evidence of cognitive impairment, and did not consider there was any clinical indication requiring formal cognitive function testing. She was not cross-examined.
[35] Peter called Dr David Spriggs, a consultant physician/geriatrician working for the Auckland District Health Board. Dr Spriggs had seen James during his admission to hospital from 15 to 22 December 2017. Dr Spriggs also saw James on the morning of 3 January 2018, prior to his discharge home for palliative care. In his evidence‑in‑chief Dr Spriggs expressed the view that for the period 1 to 3 January 2018 (inclusive) there was nothing to suggest that James lacked the mental capacity to make decisions with regard to his will.
[36] Ann and Susan called evidence from Dr Jane Casey, a consultant psychiatrist specialising in old age psychiatry. Dr Casey had not met James. Her evidence was prepared on the basis of a review of the available clinical and medical records, and the evidence of the various parties about James’ condition at the relevant times. Dr Casey noted that during James’ hospital admissions there was no comprehensive assessment of cognitive function, as it was not clinically indicated. But there were entries where James was observed to be of decreased alertness, attention and concentration. In Dr Casey’s clinical opinion:
33.[James] Marshall was gravely ill due to widespread metastatic malignancy with associated complications and medical co-morbidities during the period 15 December 2017- 11 January 2018. There is evidence of fluctuation in the mental state, alertness, and cognition. On 20 December 2017 the Consultant responsible for his care stated that given the circumstances of the diagnosis and prognosis; that is, the death‑bed scenario, along with the altered mental status and the withdrawal of treatments, that it was not clinically stable or appropriate to make significant legal decisions in relation to Enduring Powers of Attorney or a Will. Moreover, it was specified that there was ‘family grievance’ and Mr Marshall was ‘under undue influence’. The details of the reasoning behind this appraisal of the situation are not recorded, yet it suggests that the clinical team was observing ‘red flags’.
…
35. Mr Marshall’s condition continued to deteriorate and he was noted to be confused, anxious and drowsy on the date of 30 December 2017 and through to 2 January 2018. Thus, it is highly unlikely that Mr Marshall had a sustained lucid interval where he was restored to the use of his reason and judgment. Mr Marshall would have known who his natural beneficiaries were. There is no collateral evidence to support that he would have appreciated a revision of a Will, or that he was able to comprehend and appreciate the claims of those who might expect to benefit from the Will, or whether he was able to understand the impact of the distribution of the assets of the estate. There is no evidence that Mr Marshall had knowledge and approval of the contents of the Will, at the time that it was executed.
36.Thus, in my expert opinion, on the balance of probabilities, Mr Marshall did not have testamentary capacity, during the period of 20 December 2017 through to his passing on 11 January 2018.
(Emphasis in original.)
[37] When this opinion was put to Dr Spriggs in cross-examination he disagreed, saying that he did not know how Dr Casey had come to that conclusion. He thought that on the balance of probabilities James did have testamentary capacity.
[38] The Judge noted that the issue of testamentary capacity is ultimately one for the Court, but the expert medical evidence is of assistance. Having heard from both Dr Spriggs and Dr Casey, he preferred the evidence of Dr Casey for a number of reasons:
(a)Dr Casey’s opinion was based on a full review of James’ clinical notes from 20 December 2017 through to 11 January 2018, and of the evidence of other witnesses in the proceeding. This was a more comprehensive review than that carried out by Dr Spriggs, who did not review the medical notes of others and did not have access to the other affidavit evidence.[12]
[12]At [55].
(b)Dr Spriggs’ evidence was restricted to the period 1 to 3 January 2018.[13]
[13]At [56].
(c)Dr Spriggs accepted that he made two errors in his opinion, one in relation to entries in James’ medical notes recording that James was confused, and one in relation to the medication that James was receiving while in hospital.[14]
[14]At [57].
(d)Dr Spriggs accepted that there were “red flags” in the medical notes in relation to capacity, including a note recording that on 20 December 2017 James was in no state to deal with an enduring power of attorney:[15]
[15]At [58].
given the [situation] @ present — recent diagnosis of metastatic cancer + under undue influence with MMSE 7/10 + family grievance, I would suggest this is not the correct time for this.
(e)There were other entries in James’ medical records in relation to drowsiness, feelings of being drugged and confusion.[16]
[16]At [61]–[64].
[39] The Judge summarised his conclusions in relation to James’ testamentary capacity on 30 December 2017 as follows:
[66] Peter fails to satisfy the Court that James Marshall had testamentary capacity on 30 December when he made the direction to change his will. I am not satisfied that James’ condition did not affect his sense of right. James was physically very unwell but importantly also, his mental state and cognition appear to have been affected by his physical condition and the drugs he was taking, the morphine and the diazepam, particularly on 30 December. Apart from the medical evidence the general evidence, including the evidence of the medication James was taking, left him confused and drowsy for extended periods of time.
[40] The Judge summarised his conclusions in relation to testamentary capacity on 3 January 2018 as follows:
[67] Nor does the evidence support a finding that James had capacity on 3 January when Peter says he discussed the will with him. While Dr Spriggs had the advantage of assessing James when he was discharged on 3 January, that advantage is somewhat limited in that it was a snapshot in time, and the focus was on James’ general medical condition rather than his testamentary capacity. For instance, earlier in the day on the 3rd, James was noted to be confused but directable. While James’ issues as to constipation and pneumonia were addressed so that he could be discharged home to palliative care, he remained a very ill, terminally ill man who required significant medication.
Testamentary intention
[41] The Judge considered that despite a record of difficult relationships between James and Ann and Susan, that did not affect the way James treated them under his earlier wills.[17] Those difficulties had not affected his testamentary intention towards them in the past. The Judge expressed doubts about James’ testamentary intention in the period 30 December 2017 to 3 January 2018 in a paragraph that we set out in full, as the reasoning in it was challenged by Mr Orton, counsel for Peter:
[17]At [74].
[77] If James did express a wish to change his will on 30 December, the evidence supports a finding that he did so at a time when he was subject to influences which affected his testamentary intention. I should make it clear that I am not using the term “influence” in a pejorative or legal sense in terms of any intention on the part of Peter or Christine to influence James or overbear his will, but rather that at the time James would have been influenced by his compromised medical state, his recent diagnosis of terminal cancer, his physical vulnerability, the need for 24 hour care, and the significant medication he needed and was taking. He wanted and needed the continued support and care of Peter and Christine. While on the evidence they would have gladly provided it as they had in the past, in his confused and vulnerable state he may have thought it necessary to express favouritism for them to achieve that support.
[42] The Judge also considered that Christine’s evidence that her father intended to write a letter to Ann and Susan explaining why he had changed the basis of distribution suggested that even if the unsigned document was prepared to reflect James’ testamentary wishes, he had decided not to sign it and change his testamentary disposition until he had explained why he proposed to make the changes in that letter. He never prepared such a letter.[18] So, the Judge said, the evidence did not satisfy him that any testamentary intention was immediate and unconditional.[19]
[18]At [78].
[19]At [83].
Conclusion in relation to s 14 of the Wills Act
[43] For the reasons set out above, the Judge concluded that Peter had failed to satisfy the Court on the balance of probabilities that the document ought to be admitted to probate as a valid will under s 14 of the Act.[20]
[20]At [84].
Application for administration
[44] The Judge granted Ann and Susan’s application for administration of the 2015 will. However he considered that Peter should not be appointed as executor and trustee of James’ estate, because of a potential conflict of interest arising under s 13 of the Act. The 2015 will had been witnessed by Peter’s partner Dianne. The effect of s 13 of the Act is that in those circumstances, the disposition to Peter under that will would prima facie be void. An application by Peter under s 13(2) was anticipated to validate the disposition. That gave rise to an apparent conflict between Peter’s position as executor and trustee, and his interest in the estate as a potential beneficiary under the will. It was appropriate that an independent person be appointed as executor and trustee. An experienced solicitor, Mr Barry Stafford, was appointed as executor and trustee.[21]
[21]At [85]–[86].
Issues on appeal
[45] The appeal raises four main issues:
(a)whether the appeal is a general appeal, or an appeal from the exercise of a discretion;
(b)whether James had testamentary capacity on 30 December 2017 and/or 3 January 2018;
(c)whether the unsigned document expressed James’ (unconditional) testamentary intentions; and
(d)whether the High Court erred in removing Peter as executor and trustee of the estate under s 19 of the Administration Act.
[46] We discuss each of these issues in turn below.
The nature of the appeal
[47] In their written submissions the respondents sought to argue that the Judge’s decision declining to make an order declaring the unsigned document to be a valid will involved the exercise of a discretion. That would mean that Peter did not have a general right of appeal in respect of that decision. The more restrictive approach adopted in the context of an appeal from the exercise of a discretion would apply.[22]
[22]Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]–[32]; and May v May (1982) 1 NZFLR 165 (CA) at 170.
[48] However in the course of argument Ms Stevenson, counsel for the respondents, accepted that the determination of an application under s 14 of the Act involves an evaluative judgment, not the exercise of a discretion. That concession is in our view plainly right. We therefore proceed on the basis that Peter has a general right of appeal, and is entitled to judgment in accordance with the opinion of this Court.
Testamentary capacity
Appellant’s submissions on appeal
[49] Peter accepted that the established principles in relation to testamentary capacity are set out in Woodward v Smith in the passage we set out at [24] above.[23] Peter also accepted that he bears the onus of establishing, on the balance of probabilities, that James had testamentary capacity at the relevant time.
[23]Woodward v Smith, above n 6.
[50] Mr Orton submitted that it was sufficient if James had testamentary capacity on either 30 December 2017 or 3 January 2018. It was not necessary that he have had testamentary capacity on both dates. If that was what the Judge had suggested in the High Court judgment, then that was an error. In response to questions from the Court, Mr Orton accepted that it was necessary to show that on one or other date, both testamentary capacity and testamentary intention coincided.
[51] Mr Orton submitted that the High Court erred in its assessment of the evidence in relation to James’ testamentary capacity on 30 December 2017 and 3 January 2018. In particular, he submitted that the Judge had given too much weight to the evidence of Dr Casey, who had never met James. He relied on the observation of this Court in Loosley v Powell that:[24]
[24]Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [94] (footnote omitted).
The opinions of expert witnesses who did not know the will-maker, and who make their assessments after her death must be treated with caution.
[52] Mr Orton also emphasised the importance of evidence from family members when assessing testamentary capacity, referring to Zorbus v Sidiropoulous (No 2) where the New South Wales Court of Appeal said:[25]
65The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence.
[53] Mr Orton emphasised that Peter, Christine and Dianne all gave evidence that tended to support James having sufficient mental capacity at the relevant time. He submitted that this evidence was not undermined in cross-examination, and the Court made no adverse findings in relation to the credibility of those witnesses. Their evidence, coupled with the evidence of Dr Spriggs who had actually seen James at the relevant time, should have been preferred.
Analysis
[25]Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197.
[54] We have carefully reviewed all the evidence relevant to James’ testamentary capacity in the period 30 December 2017 to 3 January 2018. We agree with the Judge that the evidence was not sufficient to discharge the onus on Peter to establish that James had testamentary capacity at any time within that period. It is possible that there was a window where James had testamentary capacity, as Dr Casey acknowledged in her evidence. But the evidence is not sufficient to show that there was in fact such a window, or that it coincided with the critical moments on 30 December 2017 or 3 January 2018 when, on Peter’s evidence, James expressed his modified testamentary intentions.
[55] James was a seriously unwell man. The illness from which he was suffering was taking a toll not only on his body but also, undoubtedly, on his mental capacity. His condition was deteriorating. He was admitted to hospital in mid-December 2017, and again in early January 2018 (presenting with confusion, constipation and pneumonia). He returned home on 3 January 2018 in order to receive palliative care for the short period prior to his death on 11 January 2018. He was taking medication for pain: morphine (it appears in relatively low doses over the critical period) and, at times, anxiolytic medication: Diazepam or Lorazepam. His medical notes record multiple episodes of confusion and drowsiness. That is hardly surprising, given his underlying condition.
[56] Mr Orton is right to say that there was no adverse finding about the credibility of Peter, Christine or Dianne. But their evidence about James’ condition and behaviour, though important, cannot be decisive: it needs to be weighed along with all the other relevant evidence, including the contemporaneous medical records and Dr Spriggs’ and Dr Casey’s expert medical evidence.
[57] We do not consider that the brief clinical assessment that Dr Spriggs conducted on the morning of 3 January 2018 — he thought perhaps 10 to 15 minutes, though it could have been more or less — gave him any material advantage in assessing James’ capacity on that date. It provided even less advantage in relation to an assessment of James’ capacity as at 30 December 2017 — a date in respect of which Dr Spriggs did not in fact express a view in his evidence in chief. Dr Spriggs’ examination on the morning of 3 January 2018 was carried out for the limited purpose of considering whether James could be discharged home to receive palliative care. Testamentary capacity was not an issue that Dr Spriggs needed to consider on that date. There is no suggestion he turned his mind to the issue at that time, or carried out the sort of examination that would shed significant light on the question.
[58] We agree with the Judge that the evidence of Dr Casey provides more assistance, for the reasons summarised at [38] above. Her evidence squarely addressed the relevant issues, identified the information available to inform her assessment, and provided a carefully reasoned expert view on those issues. It would of course be preferable if there was evidence from someone who knew the testator well, had relevant expertise, and had seen the testator shortly prior to the relevant date, as was the case in Loosley v Powell. But there was no such witness in this case. So it was necessary for the Judge — and is now necessary for us — to make an assessment based on all of the evidence, lay and expert, giving that evidence appropriate weight in light of its content, and the basis for any views expressed. Our assessment is the same as the Judge’s: there are significant doubts in relation to whether James had capacity throughout the relevant period, and the evidence does not satisfy us that it is probable that he did have capacity on either of the relevant dates.
[59] That conclusion is sufficient to dispose of the appeal. But we will go on to deal briefly with the question of testamentary intention.
Testamentary intention
Appellant’s submissions on appeal
[60] Mr Orton did not challenge the Judge’s approach to the law in relation to whether the unsigned document recorded James’ testamentary intentions. It was common ground that Peter had the onus of establishing that this was the position, on the balance of probabilities. And it was common ground that it was necessary for him to establish that James’ testamentary intention was immediate and unconditional. However Mr Orton submitted that the Judge erred in finding that testamentary intention had not been established on the evidence in this case.
[61] Mr Orton emphasised the evidence that James was very upset by Ann and Susan withdrawing from the care roster, Peter’s evidence about the instructions he was given by his father on 30 December 2017, and the discussion Peter had with his father in relation to the unsigned document on 3 January 2018. Mr Orton also emphasised that the evidence given by Dianne — that James made gestures which she interpreted as a wish to sign a document — was not undermined in cross-examination.
[62] Mr Orton submitted that the Judge had erred in finding that the conversation Christine had with James, in which James said that before signing the will he wanted to write a letter to Ann and Susan explaining his reasons for changing his will, had taken place on 4 January 2018. Mr Orton said that based on the care roster and other evidence, it is more likely that the conversation took place on 31 December 2017 or 1 January 2018.
[63] Mr Orton was critical of the reasoning at [77] of the High Court judgment, which is set out at [41] above. Mr Orton submitted that any influences on James that did not amount to undue influence of the kind that the law recognises as impairing the validity of a decision could not be relevant to an assessment of James’ testamentary intention. In this case, the respondents had not argued that James was subject to undue influence in the relevant sense. So any influences that may have been operating on James were not capable of invalidating his testamentary intention.
[64] Mr Orton also argued that the High Court was wrong to find that any testamentary intention was conditional on James writing a letter to Ann and Susan. First, he submitted, the Court erred in finding that the conversation with Christine took place on 4 January 2018. Second, her evidence that James said he wanted to write a letter, as opposed to just writing an explanation, could easily be attributed to either an error in memory by Christine or the use of the wrong word by James. Here, the unsigned document contained the statement “[a]s recognition for their unconditional love, support and comfort to me over many years”. Mr Orton suggested that this was an explanation for the uneven distribution, set out in the unsigned document itself, and that this was in all likelihood the explanation that James mentioned to Christine at some time prior to 3 January 2018. It follows, he submitted, that when James was shown the document on 3 January 2018, and approved its content, any condition in relation to providing an explanation to Ann and Susan had been met.
Analysis
[65] The burden of establishing that the unsigned document represented James’ testamentary intention, and that this was an immediate and unconditional testamentary intention, lay with Peter. We agree with the Judge that the evidence was not sufficient to discharge that burden.
[66] The indication that James gave to Christine that he wanted to write a letter to Ann and Susan explaining his decision suggests that in James’ mind there were prior steps that needed to be taken before he signed the will to make it operative. That remains the position whether the conversation took place on 31 December 2017/1 January 2018 or on 4 January 2018. In either case, this was evidence that James’ intention to make the testamentary disposition described in the unsigned document was not yet final, for two reasons.
[67] First, this evidence indicates that James wanted to provide an explanation to Ann and Susan about the change in the will before formally adopting it. Mr Orton’s interpretation of these events — that the explanation in the unsigned document was all the explanation that James intended to provide — might be correct. But it is at least equally plausible that any testamentary intention was conditional on taking a separate step (writing a letter), and that condition was never satisfied. Dianne’s evidence about James making signing gestures does not take matters any further: her evidence about what those gestures meant involves significant interpretation, verging on speculation. And the fact that James was reduced to communicating by gestures raises questions about his capacity at the time this occurred.
[68] Second, we consider that Christine’s reference in her evidence to James wanting to provide an explanation before the will was signed confirms that on the date of that discussion, James understood that he needed to take a further step — signing the unsigned document — in order to adopt that document as his will. Significantly, despite having access to the document on 3 January 2018 he did not take any such step — he did not sign it (with or without witnesses), or make any marks or notes on it to indicate his approval. This evidence is equally consistent with the proposition that James knew that the will would not be effective unless and until he signed it, and he deliberately chose not to do so at that time.
[69] We accept Mr Orton’s submission that influences on James’ decision-making that fall short of undue influence are not relevant to an assessment of James’ testamentary intentions. The factors identified as potentially relevant “influences” at [77] of the High Court judgment appear to us to be relevant to an assessment of James’ capacity, rather than to ascertaining his testamentary intentions. But putting those factors to one side, on the evidence before the Court we are not satisfied that James had an immediate and unconditional intention to dispose of his estate in the manner set out in the unsigned document on either 30 December 2017 or 3 January 2018.
Conclusion in relation to s 14 application
[70] For the reasons set out above, we consider that Peter has not established to the necessary standard that James had testamentary capacity on either 30 December 2017 or 3 January 2018, or that the unsigned document recorded James’ immediate and unconditional testamentary intentions. The Judge was right to dismiss the s 14 application.
Orders made under s 19 Administration Act
[71] Mr Orton confirmed in the course of argument that if the appeal was unsuccessful in relation to the validity of the unsigned document as a will, then there was no challenge to the orders made by the High Court under the Administration Act in connection with the 2015 will. We therefore do not need to address that issue.
Result
[72] The appeal is dismissed.
[73] Costs should follow the event in the ordinary way. The appellant must pay costs to the respondents for a standard appeal on a band A basis, with usual disbursements.
Solicitors:
Corban Revell, Auckland for Appellant
McVeagh Fleming, Auckland for First and Second Respondents
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