McFadzean v Moleta
[2013] NZHC 1601
•28 June 2013
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV-2012-441-000682 [2013] NZHC 1601
UNDER the Administration Act 1969
IN THE MATTER of the Estate of the late DONNA JUNE BENGSTON
BETWEEN JOHN DOUGLAS McFADZEAN Plaintiff
ANDGLYNIS ROSILYN MOLETA AND KIM ANTHONY MOLETA
Defendants
ANDPETER KANE BENGSTON Added Party
Hearing: 17-21 June 2013
Counsel: J G Krebs and M C Hamilton for Plaintiff
G W Calver for Defendants
M E J Macfarlane for Added Party
Judgment: 28 June 2013 at 4 pm
RESERVED JUDGMENT OF COLLINS J
TABLE OF CONTENTS
Introduction ....................................................................................................................................... [1] Testamentary capacity ...................................................................................................................... [8] Events leading to the making of the 2012 will............................................................................... [10] The purchase of Grassways and the creation of the Charolais stud farm .................................... [11] Donna Bengston’s earlier wills..................................................................................................... [15] Donna’s Bengston’s health prior to the making of the 2012 will .................................................. [22] The 2012 will .................................................................................................................................... [53]
28 February 2012............................................................................................................................. [63] Donna Bengston’s mental state at the time the 2012 was made .................................................. [65] Dr Walsh ....................................................................................................................................... [66]
Dr Barry-Walsh ............................................................................................................................ [71] Legal consequences ......................................................................................................................... [74] Testamentary moral duty .............................................................................................................. [82] Charolais cattle breeders ............................................................................................................. [87] Glynis and Kim Moleta................................................................................................................. [92] The diamond ring ......................................................................................................................... [98] Conclusion...................................................................................................................................... [105]
McFADZEAN v MOLETA [2013] NZHC 1601 [28 June 2013]
Introduction
[1] The question I have to answer in this judgment is:
Did Donna Bengston have testamentary capacity when she made a will dated
27 February 2012?
[2] This question arises in the context of an application by the plaintiff in his capacity as the executor of Donna Bengston’s 2012 will, for an order that probate be granted to him. Although the plaintiff has sought probate, he has adopted a neutral position in this proceeding. Instead, Donna Bengston’s husband (Peter Bengston) has presented the case to have Donna Bengston’s 2012 will declared valid. The application for probate in relation to the 2012 will is opposed by Donna Bengston’s brother (Kim Moleta) and sister (Glynis Moleta) who say that an earlier will, dated
2 February 2007 (2007 will) was Donna Bengston’s last valid will because she lacked testamentary capacity at the time the 2012 will was made.
[3] The issue about Donna Bengston’s testamentary capacity has arisen because
Donna Bengston suffered serious mental health issues prior to and after making the
2012 will. Tragically, Donna Bengston took her life the day after she made the 2012 will.
[4] Donna Bengston was 52 years old when she died leaving an estate worth more than $2 million. She had no children.
[5] I will explain the details of the two wills in paragraphs [21], [62] and [87] of this judgment. In summary:
(1)The 2007 will contained amongst other matters, specific bequests of Charolais cattle1 to Charolais cattle breeders and a bequest of a valuable diamond ring to Glynis Moleta. Under the 2007 will Peter Bengston was to receive 70 per cent of the residue of
Donna Bengston’s estate. Kim Moleta and Glynis Moleta were to
1 As will be explained later in this judgment, Mrs Bengston had devoted most of her life to developing a successful Charolais cattle stud farm.
share the remaining 30 per cent of the residue of Donna Bengston’s
estate.
(2) If the 2012 will is valid Peter Bengston will inherit all of
Donna Bengston’s estate.
[6] In this judgment I shall explain:
(1)the legal requirements for testamentary capacity and who bears the onus of proving testamentary capacity;
(2)the events leading to Donna Bengston making the 2012 will, including her declining health;
(3) the making of the 2012 will;
(4) Donna Bengston’s mental status when she made the 2012 will;
(5) the legal consequences which flow from my factual findings; and
(6) the answer to the question posed in paragraph [1] of this judgment.
[7] Before explaining the legal principles which govern how I must decide this case, and the evidence I rely upon, there are five preliminary points which I wish to make:
(1)The question of whether or not Donna Bengston had testamentary capacity when she made the 2012 will involves a legal analysis that is informed by medical evidence. Unfortunately, while the law and medicine intersect in this case, the two disciplines are not synchronised. As a consequence, the application of legal principles to the medical evidence I have heard does not produce a result with which psychiatrists would necessarily concur.
(2)The evidence relating to Donna Bengston’s state of mind in the period immediately preceding her making the 2012 will is inconsistent and incomplete for the following reasons:
(a) The seriousness of Donna Bengston’s mental illness fluctuated considerably so that at some times she appeared normal while at other times she presented as being seriously unwell. Also, those who suffer some serious mental illnesses, such as significant depression, can sometimes undertake complex tasks that are routine for them, but which to others appear extremely challenging.
(b)Peter Bengston was not always able to recognise the symptoms associated with his wife’s mental illness. This is not a criticism of him. It is, however, apparent that Peter Bengston did not always appreciate just how unwell his wife was, as evidenced by the fact when he gave his evidence he was not convinced Donna Bengston had suffered any serious mental illness.
(c) Psychiatrists were unable to assess Donna Bengston’s state of
mind on the day she made the 2012 will.
(3) Because the evidence relating to Donna Bengston’s mental state at the time she made the 2012 will is both incomplete and inconsistent I will, wherever possible, place greater reliance on contemporary records and medical assessments of Donna Bengston. I have done so because I am satisfied the medical assessments are objective and lack any risk of bias in the recollections of Donna Bengston’s family and friends who have retrospectively compiled their evidence about how Donna Bengston appeared to them during the period leading to her death.
(4)In all likelihood Donna Bengston suffered a number of overlapping mental illnesses including depression and anxiety disorders. For this
reason there is little to be gained by trying to ascertain the exact nature of her psychiatric illness. It is sufficient to observe that the psychiatric evidence unanimously establishes that Donna Bengston suffered serious mental illness when she made the 2012 will. The only difference between the psychiatrists who gave evidence before me was that Dr Barry-Walsh was not able to determine if Donna Bengston lacked testamentary capacity at the time she executed the
2012 will.
(5)Kim and Glynis Moleta have confined their case to one in which they question Donna Bengston’s testamentary capacity at the time the 2012 will was made. They have not attempted to establish Peter Bengston asserted undue influence over Donna Bengston when she made the
2012 will.
Testamentary capacity
[8] A valid will must be made by a person who has the mental capacity to make a will.2 The key principles governing testamentary capacity are:
(1)the person making the will must have the requisite mental capacity at the time they execute the will. Thus a person who is generally suffering mental health issues may nevertheless make a valid will during a period of lucidity.3
(2)A will that is rational on its face will, absent evidence to the contrary, be presumed to have been made with testamentary capacity.4
(3)If the maker of a will suffered from a serious mental health illness immediately prior and subsequent to making the will, then, in the
absence of evidence to the contrary, it is presumed they suffered from
2 Bishop v O’Dea (1999) 18 FRNZ 492 (CA).
3 At [2].
4 Re White (Deceased) [1951] NZLR 393 (CA) and Peters v Morris CA99/85, 19 May 1987.
their mental illness and lacked testamentary capacity at the time they made the will.5
(4) Where the testamentary capacity of the maker of the will is put in issue, those who seek to uphold the will have the onus of establishing on the balance of probabilities that the maker of the will had the requisite mental capacity.6
(5) The maker of a will has the mental capacity to make a valid will when it is established that:7
(a) they understood they were making a will and the consequences of them doing so;
(b) they knew what property was to be bequested; and
(c) they understood the moral claims of those who should have been considered to be beneficiaries when making the will.
[9] It is accepted by all parties that in this case Donna Bengston knew when making the 2012 will:
(1) that she was making a will and the consequences of her doing so; and
(2) what property she was bequeathing.
However, Kim and Glynis Moleta maintain that Donna Bengston did not understand the moral claims of those who should have been considered to be beneficiaries when
5 John Martyn, Charlotte Ford, Alexander Learmouth, Mika Oldham Theobold on Wills (17th ed, Thomson Reuters, London, 2010) at para 3-010 and Brown v Pourau [1995] 1 NZLR 352 (HC) at 364.
6 Watkins v Public Trustee [1960] NZLR 326 (CA); Public Trustee v Bick [1973] 1 NZLR 301 (CA); Nijsse v Squires CA53/04, 15 December 2004; Peters v Morris, above n 4; Re W
(Enduring Power of Attorney) [2001] Ch 609 and Watkins v Clasohn [1953] 86 CLR 391.
7 Woodward v Smith [2009] NZCA 215 at [19]; Banks v Goodfellow (1870) LR 5Q13 549 at 565; David Hayton (ed) Underhill and Hayton Law relating to Trusts and Trustees (18th ed, LexisNexis, London, 2010) at [13.6] and Andrew Butler (ed) Equity and Trusts New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) at [4.1.1(4].
she made the 2012 will. Peter Bengston’s case is that Donna Bengston fulfilled all
the legal mental capacity criteria when she made the 2012 will.
Events leading to the making of the 2012 will
[10] I shall explain the events leading to Donna Bengston making the 2012 will under the following three headings:
(1)The purchase of Grassways and the creation of the Charolais stud farm.
(2) Donna Bengston’s earlier wills.
(3) Donna Bengston’s health prior to making the 2012 will.
The purchase of Grassways and the creation of the Charolais stud farm
[11] Peter and Donna Bengston met in August 1992. They began living together with Donna Bengston’s parents (Mr and Mrs Moleta) in Hastings soon after they met. During this time Mr and Mrs Moleta owned and farmed a property at Raukawa. Donna Bengston began working on that farm with her father when she was a teenager. It was at Raukawa that Donna Bengston started her interest in breeding Charolais cattle. She became an enthusiastic and widely respected breeder of Charolais cattle during her lifetime.
[12] In mid-1993 Peter Bengston suffered a serious accident, which eventually caused him to cease work as an electrician with the Central Hawke’s Bay Power Board. Peter Bengston was not able to obtain alternative paid employment. Although he has received ACC weekly benefits for approximately 17 years, Peter Bengston has worked on the farm where he and Donna Bengston lived since
1994.
[13] In 1994 a farm at Takapau called “Grassways” was purchased in Donna Bengston’s maiden name. Grassways was bought for $600,000 of which Donna Bengston contributed $440,000 from money she primarily acquired when her
parents sold their Raukawa farm. Peter Bengston contributed $60,000 towards farm equipment and infrastructure. His $60,000 was also used as a source of security for the $160,000 in loans that were entered into at the time Grassways was purchased. The $60,000 contributed by Peter Bengston came from the sale of a house he had owned in Waipukurau.
[14] By 2005 Grassways had 100 stud cattle and, according to an article in the Dominion Post on 28 April 2005, Peter and Donna Bengston had continued to grow and develop the stud farm together as “a partnership”,8 although the property and stud farm were never formally owned or managed by a legal partnership.
Donna Bengston’s earlier wills
[15] On 11 June 1995 Donna Bengston made a will. Peter Bengston was named as a beneficiary of half her estate. Donna Bengston’s parents were named as the primary beneficiaries of the other half of her estate. Kim and Glynis Moleta were secondary beneficiaries under Donna Bengston’s 1995 will, meaning they would only inherit Peter Bengston and/or their parents’ share of Donna Bengston’s estate if Peter Bengston and/or Mr and Mrs Moleta died before Donna Bengston.
[16] Mr Moleta passed away on 12 May 1999. His estate mainly passed to
Mrs Moleta but he also bequested a number of Charolais cattle to Donna Bengston.
[17] Mrs Moleta made two wills that were produced in evidence. In the first of those wills, dated 26 October 1999, Mrs Moleta bequeathed $15,000 to Kim Moleta. That will recorded that Glynis Moleta had received $15,000 during the course of Mrs Moleta’s lifetime and that Donna Bengston had inherited cattle from her father on his death, and that the reason for the specific bequest to Kim Moleta was to ensure that Kim Moleta, Glynis Moleta and Donna Bengston were “treated fairly”.9
[18] In the second of her wills, dated 8 May 2002, Mrs Moleta increased the bequest to Kim Moleta to $30,000 and provided for a $3,000 bequest to
Glynis Moleta who explained in her evidence that during her parents’ lifetime she
8 Evidence in Chief of Peter Bengston, exhibit C.
9 Evidence in Chief of Peter Bengston, exhibit G.
had received approximately $27,000 to carry out renovations and alterations to her home. No specific bequest was made to Donna Bengston in either of Mrs Moleta’s wills. However, the second will provided that the residue of Mrs Moleta’s estate would be split equally between Kim Moleta, Glynis Moleta and Donna Bengston. As a consequence, after Mrs Moleta passed away in January 2004, Donna Bengston, Kim Moleta and Glynis Moleta each received $58,930.13 from the residue of their mother’s estate, in addition to the specific bequests received by Kim and Glynis Moleta.
[19] A year after Mrs Moleta passed away, Peter and Donna Bengston married. Their wedding was on 21 January 2003 by which time they had been living together for approximately ten years.
[20] In June 2005 Donna Bengston purchased a diamond ring for $44,000. It appears she used some of the money she received from her mother’s estate to purchase the ring which was independently valued at this time as being worth
$60,600. According to Kim and Glynis Moleta, this ring was purchased as a “memorial” to their parents, and in particular their mother with the aim of “keeping [it] in the family”.10
[21] On 2 February 2007 Donna Bengston made her 2007 will. That will provided:
(1)Glynis Moleta was to receive the diamond ring purchased by Donna Bengston in June 2005. That ring was to be held by Glynis Moleta for her lifetime and then passed to her daughter, Claudia Crasborn.
(2) Another ring was bequeathed to a relative of Peter Bengston.
(3)A number of Charolais bulls and heifers were bequeathed to certain named Charolais cattle breeders.
10 Evidence in Chief of Glynis Moleta at [16] and Evidence in Chief of Kim Moleta at [6].
(4) Peter Bengston was to occupy Grassways (described in her will by
Donna Bengston as being her property) until it was sold.
(5)On the sale of the farm, 70 per cent of the proceeds were to go to Peter Bengston and 15 per cent each to Kim Moleta (or his children if he died before Donna Bengston) and Glynis Moleta (or her children if she died before Donna Bengston).
(6) If Peter Bengston died before Donna Bengston then his share of the sale of the farm was to be shared equally between Kim and Glynis Moleta (or their children if Kim and/or Glynis Moleta died before Donna Bengston).
Donna’s Bengston’s health prior to the making of the 2012 will
[22] According to Peter Bengston, about the time Mrs Moleta passed away Donna Bengston began to consider moving from Grassways. However, Peter Bengston believes Donna Bengston was reluctant to “give up the farm and her Charolais cattle”. Peter Bengston said that at about this time Donna Bengston:11
began to show signs of obsessive behaviour about the [Charolais] cattle, mostly because of her concern that the herd could be contaminated by disease. Some of this arose because of dairy intensification near the farm. She became more and more concerned about contamination of any kind affecting both the cattle and herself.
[23] An insight into Donna Bengston’s difficulties in coping with the pressures of the farm can be gleaned from a note she wrote in 2004 in which she said that she was “always in tears and upset at selling the stock” and how she felt “emotional upheaval” before starting “day to day tasks”.12
[24] Medical records produced in evidence confirm Donna Bengston was “treated for a mild depression and obsessive compulsive disorder”13 since at least 2005 by Dr Jane Nash, a general practitioner in Waipukurau. Dr Mason, a colleague of
Dr Nash explained in a report prepared for the Coroner following Donna Bengston’s
11 Evidence in Chief of Peter Bengston at [14].
12 Evidence of Peter Bengston, Exhibit H.
13 Exhibit 1 at 55.
death that “treatment [for Donna Bengston in 2005] was largely general support and
ongoing use of Fluoxetine14 20 mg at a dose of one capsule per morning”.15
Dr Mason believed that this treatment was successful and that Donna Bengston’s symptoms were “readily manageable ... that her life had ‘been on track’, [and that] she had continued her work as a very successful stud cattle breeder”.16
[25] Peter Bengston explained that during the final quarter of 2011 he and Donna Bengston renewed discussions they had had over the years about selling the farm and stud stock. He explained that Donna Bengston:17
... was finding it more difficult to keep up with the demands of working the farm, and the cattle. It was becoming too much for her, while at the same time there did not seem to be any relief in sight for her. She hardly ever had a break from the farm.
[26] At this stage, some of those who knew Donna Bengston well started to notice changes in her behaviour. For example, Angela Reed, a friend of Donna Bengston’s through the Charolais cattle breeders community, said that Donna Bengston seemed to be stressed and having difficulties coping with farm work.18 In October 2011
Angela Reed stayed at Grassways for three days and noticed that Donna Bengston
was “over the top” in relation to hygiene issues.19 Similarly, on 20 November 2012, Elizabeth Gwillim, another friend of Donna Bengston’s through their interest in Charolais cattle breeding observed that Donna Bengston was “repeating herself” which Elizabeth Gwillim thought was “strange and out of character”.20
[27] However, it is also apparent that despite showing symptoms of tiredness and stress, Donna Bengston was able to function adequately. For example, Glynis Moleta explained in her evidence that:21
In early December 2011 Donna came to lunch with me and four friends ... She enjoyed herself and appeared very happy in the company of a group of women who had known her for many years. She did tell me during lunch
14 Fluoxetine is an antidepressant. It is approved for the treatment of, amongst other conditions, major depression, obsessive compulsive disorder and panic disorder. Refer Exhibit 1 at 69.
15 Exhibit 1 at 55.
16 Exhibit 1 at 55.
17 Evidence in Chief of Peter Bengston at [19].
18 Evidence in Chief of Angela Reed at [6].
19 At [8].
20 Evidence in Chief of Elizabeth Gwillim at [8].
21 Evidence in Chief of Glynis Moleta at [20]-[22].
she was tired and had a lot of work to do. On 25 December 2011 I spent Christmas Day at Donna’s farm with my two grown up children. We had a lovely lunch and Donna appeared to be fine, though quiet ...
On 29 December 2011 I had a dinner party at home [in Havelock North] with 14 friends. As usual Peter and Donna were both invited. They arrived early and Donna went straight in and lay on a couch in the lounge by herself, until other people started to arrive. She appeared to be her usual self during the evening, although they were the first to leave.
[28] However, by the middle stages of January 2012 Donna Bengston’s condition had deteriorated. Dr Mason’s report to the Coroner best summarises the change in Donna Bengston’s state when he said that when he saw her on 25 January 2012:
... she reported several weeks of being very wound up, busy and not sleeping well, associated with health issues in the stud cattle herd. She had become overly obsessive about cleanliness and transmission of disease, and had had a panic attack ...
Dr Mason found Donna Bengston “... really insightful but tense and wound up”. He
“felt she was on the edge of burn out”.22
[29] On 25 January 2012 Dr Mason learnt that Donna Bengston had altered her own medications by increasing the amount of Fluoxetine she took each morning from 20 mg to 80 mg. Dr Mason recommended that Donna Bengston reduce the amount of Fluoxetine she was taking to 60 mg. He also recommended Donna and Peter Bengston take a break from the farm.
[30] Peter and Donna Bengston promptly arranged for two caretakers for the farm. They employed Peter Linley (who was new to the farm) and John Atkinson (who had worked part-time on the farm for the previous five to six years) to look after Grassways while they took a break in Adelaide. Donna Bengston arranged for Dr Mason to prescribe her Zopiclone23 tablets to help her sleep while she was away.
[31] Unfortunately, rather than relax and enjoy her break, Donna Bengston continued to deteriorate when she and Peter Bengston were in Adelaide. On
29 January 2012 Donna Bengston telephoned Glynis Moleta and said that she was
22 Exhibit 1 at 55.
23 Zopiclone is a non-benzodiazepine hypnotic agent used in the treatment of insomnia. Refer
Exhibit 1 at 69.
worried she had caused a plane crash when she had telephoned Glynis Moleta on her cellphone when Glynis Moleta was at Auckland airport.24 The following day Donna Bengston took an excessive quantity of Zopiclone and when she became drowsy Peter Bengston took her to the Royal Adelaide Hospital. The records from that hospital state that Donna Bengston had suffered “multiple panic attacks [during] the past few days”.25 The records also say that when Donna Bengston was sitting in the lobby of the hotel they were staying at she saw “red drinks which made her worried about poison and poisoning being done to her” and that she later became “upset and obsessed ... [and] felt hopeless and suicidal ...”.26 A mental state examination carried out in the Royal Adelaide Hospital on 30 January 2012 recorded that Donna Bengston cognitive skills were normal, that she had good insight and that her judgement was intact.27
[32] Peter and Donna Bengston returned to New Zealand on 5 February 2012. The following day John Atkinson came to Grassways to help Donna Bengston with the farm. It was apparent to John Atkinson that Donna Bengston was not well. She burst into tears when they were walking towards the cattle yard. John Atkinson took her back to the house where they chatted for about two hours. Donna Bengston told John Atkinson that she was concerned about selling the farm and she was worried about the state of her marriage. Peter Bengston had gone out that morning but when he returned John Atkinson told him he needed to take Donna Bengston to a doctor.
[33] Peter Bengston telephoned Dr Nash on 7 February 2012 and explained that Donna Bengston had taken an overdose of sleeping pills when they were in Adelaide. Arrangements were made for Peter Bengston to take Donna Bengston to the Emergency Mental Health Service (EMHS) at Hastings Hospital.
[34] Donna Bengston was seen by members of the EMHS at Hastings Hospital later on 7 February 2012. The records compiled by members of the EMHS team
state that Donna Bengston had experienced increased panic attacks which escalated
24 Evidence in Chief of Glynis Moleta at [27].
25 Exhibit 1 at 48.
26 Exhibit 1 at 48.
27 Exhibit 1 at 49.
when she and Peter Bengston were in Adelaide. Donna Bengston’s panic attacks
when she was in Adelaide were reported in the EMHS notes to be:28
severe enough to result in thoughts of suicide such as “jumping out of the window and knifing herself”, ... Furthermore when her husband went “out” she decided to overdose ...
The EMHS notes record that Donna Bengston had become “fixated on events that happened to her on a daily basis”29 and that Peter Bengston was worried about his wife’s personal safety and wellbeing. Arrangements were made for Donna Bengston to be seen by the Hastings Community Mental Health Team (Hastings CMHT) the next day.
[35] Donna Bengston spent the evening of 7 February 2012 at Glynis Moleta’s
home in Havelock North. Glynis Moleta thought her sister was “distraught”.30
Glynis Moleta explained in her evidence that on 7 February 2012 Donna Bengston did not want to touch Glynis Moleta for “fear of contaminating” her and that she did not want to eat because she “did not want to contaminate” Glynis Moleta’s crockery or cutlery.31 The sisters spoke at length about Donna Bengston’s irrational thoughts and panic attacks. During the course of the evening Donna Bengston explained to her sister how “she could not make any decisions” and that how she wished she was
dead. Donna Bengston said that she was utterly exhausted but that she only managed to get a few hours sleep each night.32
[36] On 8 February 2012 Donna Bengston was seen by Dr Vasquez, a psychiatrist member of the Hastings CMHT. The records made by Dr Vasquez show that during the course of his one hour assessment of Donna Bengston she again explained her symptoms of panic attacks and her fears of contamination. She explained how she felt low and that while she believed her husband loved her she found his reaction to her irrational behaviour stressful. At this time Donna Bengston denied any thoughts of suicide. Dr Vasquez diagnosed Donna Bengston as suffering from obsessive
compulsive disorder (OCD) and general anxiety disorder with panic attacks. Dr
28 Exhibit 1 at 69.
29 Exhibit 1 at 70.
30 Evidence in Chief of Glynis Moleta at [34].
31 Evidence in Chief of Glynis Moleta at [34]-[35].
32 Evidence in Chief of Glynis Moleta at [36].
Vasquez did not rule out the possibility that Donna Bengston was suffering a major depressive disorder. Dr Vasquez believed that Donna Bengston’s increase in Fluoxetine to 80 mg daily may have precipitated her increased anxiety. He recommended that she discontinue Fluoxetine and Zopiclone. Instead, Dr Vasquez prescribed Quetiapine33 and Escitalopram.34 Dr Vasquez arranged to see Donna Bengston again on 21 February 2012 and referred her to the CMHT Recovery Co-Ordinator for follow up.
[37] When Angela Reed learnt of Donna Bengston’s decline in health, she travelled to Grassways from Te Kuiti to help Donna Bengston. When Angela Reed arrived at Grassways on the evening of 9 February 2012 she said she was “shocked”35 at the state of Donna Bengston. Angela Reed explained in her evidence that Donna Bengston:36
... had lost quite a lot of weight and looked very thin. Her hair was unkempt. She had ... a vacant look on her face. She was jittery.
[38] Angela Reed stayed with Peter and Donna Bengston until 12 February 2012. During this time Angela Reed observed that Donna Bengston was:
(1)Obsessed about contamination. By way of examples, when Angela Reed offered to help unpack the suitcase that Donna Bengston had taken to Adelaide, Donna Bengston became worried that touching her clothes would “spread contamination”.37 Similarly, on 11 February
2012 Donna Bengston became concerned that Peter Bengston would
“become contaminated” if he sat in a sun lounge chair.38
(2) Obsessed about stacking cattle records, mail and other papers in a
“particular order”.39
33 Quetiapine is used for the treatment of schizophrenia, bipolar disorder, and as a supplement to the treatment of depression and to treat conditions such as OCD and as a sedative for those with sleep disorders or anxiety disorders.
34 Escitalopram is an antidepressant used for the treatment of major depressive disorders and generalised anxiety disorder.
35 Evidence in Chief of Angela Reed at [17].
36 At [18].
37 At [24].
38 At [31].
39 At [22].
(3)Anxious, unable to cope and indecisive about ordinary issues associated with the farm.
(4) Not maintaining her usual smart appearance.
[39] During her visit Angela Reed observed that Donna Bengston spent long periods of time in bed and became increasingly anxious whenever the sale of the Charolais cattle and Grassways was raised. At this stage Donna Bengston appeared to be struggling to make ordinary day-to-day decisions. At one stage she said to Angela Reed and Peter Bengston “I’ll be honest with you guys I’m not going to get any better”.40
[40] On 13 February 2012 Trish Peters, a nurse member of the Hastings CMHT visited Donna Bengston. Trish Peters was concerned that Donna Bengston’s anxiety levels remained high and so she contacted Dr Vasquez who increased the night dose of Quetiapine from 25 mg to 50 mg. Trish Peters recorded that Donna Bengston did not have any thoughts of suicide and that her sleep had improved. However, the notes also record that Donna Bengston felt “hopeless”.41 Trish Peters reassured Donna Bengston that she would get better and have a lot less anxiety.
[41] On 14 February 2012 Donna Bengston gave Peter Bengston written authority to sign cheques for the farm business. This was the first time that Donna Bengston had given Peter Bengston authority to sign farm cheques.
[42] On the evening of 15 February 2012 Donna Bengston spoke on the telephone to John Henderson of Otorohanga, who was also a long-term friend and associate of Donna Bengston through their mutual interest in Charolais cattle breeding. Mr Henderson was concerned about Donna Bengston’s hesitancy on the telephone
and said in his evidence that she sounded “very flat” and “dull”.42
40 At [41].
41 Exhibit 1 at 91.
42 Evidence in Chief of John Henderson at [8]-[9].
[43] A diary note made by Donna Bengston on 15 February 2012 attests to her “feeling alone” and that she had “had ... many terrifying panic attacks since [Angela Reed had] left”.43
[44] Trish Peters returned to Grassways and met with Donna Bengston again on
16 February 2012. Her records say that Donna Bengston was less anxious at the beginning of her visit but that Donna Bengston became anxious during the visit when she spoke about her fears of getting behind in her paperwork associated with the farm. Trish Peters also noted that Donna Bengston was not cleaning her hair because she was concerned about cleaning products.
[45] Trish Peters travelled to Grassways again on 17 February 2012. Donna Bengston explained that the previous day she had felt better until an event relating to cutting her fingernails triggered obsessional thoughts. Donna Bengston explained to Trish Peters that she had managed to complete some of the paperwork associated with the farm and that she was planning to do more that day. She denied having any thoughts of suicide. It was planned that Trish Peters would telephone Donna Bengston on 20 February 2012. Dr Vasquez was scheduled to see Donna Bengston on 21 February 2012.
[46] Trish Peters telephoned Donna Bengston on 20 February 2012. The medical records say that Donna Bengston said she was feeling better as a result of the change of medication and that she was to see Dr Vasquez the following day.
[47] Donna Bengston saw Dr Vasquez on 21 February 2012 at Hastings Hospital. On their way to Hastings Hospital Peter and Donna Bengston visited Glynis Moleta at Havelock North. Glynis Moleta explained in her evidence that at the end of their visit Donna Bengston refused to hug her and that she locked herself in the car.44
Dr Vasquez saw Donna Bengston for approximately 30 minutes during which time she told him that she had stopped taking her medication on 20 February 2012 because she felt it was making her more nervous and anxious. Dr Vasquez’ notes
record that Donna Bengston remained anxious and continued to have panic attacks
43 Exhibit 5, entry for 15 February 2012.
associated with her fears of contamination. Dr Vasquez recorded that these fears were becoming more pronounced. Donna Bengston denied any thoughts of suicide. Dr Vasquez discontinued Escitalopram and increased the Quetiapine to 50 mg three times a day. Dr Vasquez assessed that Donna Bengston was impaired in her ability to function normally.45 He arranged to see Donna Bengston in three weeks time.
[48] On 23 February 2012 Donna Bengston spoke to Glynis Moleta by telephone. During the course of that telephone call Donna Bengston became upset and agitated by a fax sound on the telephone. She told Glynis Moleta that she was “not feeling well”46 and that she did not think her medication was working.
[49] On 24 February 2012 Trish Peters telephoned Donna Bengston to remind her of her planned visit. Donna Bengston told Trish Peters that there was no need for Trish Peters to visit her that day because she was feeling better after having visited Dr Vasquez and having had a further change of medication. Arrangements were made for Trish Peters to visit Donna Bengston on 1 March 2012. During the course of this telephone conversation Donna Bengston reported that her sleep had improved as had her mood and that she was spending more time on the farm.
[50] On 25 February 2012 Donna Bengston worked on the farm preparing to cull cattle. The task of culling cattle and arranging for the transport of culled cattle from Grassways appears to have been carried out during 25, 26, 27 and early on the morning of 28 February 2012. As part of this exercise Donna Bengston prepared a list of 37 cattle in which she recorded her assessment of each animal’s docility and her decision as to which animal should be culled and which should be kept. To a person unfamiliar with this task, the decisions made by Donna Bengston appear to be sophisticated and to have required a level of judgement.
[51] On the morning of 27 February 2012 Peter Bengston arranged for John Atkinson to help tag the bulls that were to be moved from Grassways. However, subsequently Donna Bengston spoke to John Atkinson and told him that
she did not need help in moving the bulls and that he should meet her at the cattle
45 McFadzean v Moleta HC Napier CIV-2012-441-682, 17 June 2013 at 360, line 29 to 361, lines
1-6 [Notes of Evidence].
shed the next day. That evening Donna Bengston telephoned Angela Reed. She was in a very agitated state about identification tags that had not arrived. Donna Bengston was particularly concerned that another set of tags with residue and powder on them were going to have to be used and that the powder on the tags would “contaminate” 47 the cattle and John Atkinson.
[52] Donna Bengston completed animal status declarations for nine bulls and nine heifers which were to be transported from Grassways at 3.00 pm on 28 February
2012. It transpired these cattle were not loaded onto a transport truck until about
6.00 pm. Although I cannot be certain as to exactly when the animal declaration forms were completed, it is likely they were filled in early on the morning of
28 February 2012.
The 2012 will
[53] On Sunday 26 February 2012 Peter Bengston telephoned John Armstrong, a consultant at the Waipukurau law firm of Davidson Armstrong and Campbell (DAC). Later that evening John Armstrong sent an email to Sylvia Partridge, a legal executive at DAC in which he said to her that the following morning Peter and Donna Bengston would telephone her to talk about wills and the sale of Grassways.
[54] On the morning of 27 February 2012 Sylvia Partridge uplifted Peter and Donna Bengston’s existing wills from the firm’s safe. She noted that Peter Bengston’s existing will (also dated 2 February 2007) left everything to Donna Bengston and that Donna’s Bengston’s existing will contained a number of specific bequests and left 70 per cent of the residue of her estate to Peter Bengston and that the balance of the residue of her estate was to go to Kim and Glynis Moleta.
[55] Sylvia Partridge telephoned Peter Bengston at about 9.45 am who gave her instructions about updating his and Donna Bengston’s will. In her evidence Sylvia Partridge explained that “Peter [Bengston] said they wanted to leave all their assets
to each other with a gift over to ... Kim ... Moleta and Glynis ... Moleta or their
47 Evidence in Chief of Angela Reed at [48]-[50].
children”.48 During the course of the telephone conversation Sylvia Partridge heard
Donna Bengston say in the background that “she wanted it ‘kept simple’”.49
[56] Sylvia Partridge prepared a letter of engagement and emailed it to Peter and Donna Bengston at a little after midday on 27 February 2012. Arrangements were made for Peter and Donna Bengston to go to DAC’s office later that afternoon to execute their new wills.
[57] Peter and Donna Bengston arrived at DAC’s offices at about 2.50 pm. When waiting in the reception area Donna Bengston observed a white spot on a piece of furniture. Peter Bengston later said to Angela Reed how Donna Bengston became “very concerned about what the white spot was”.50
[58] Sylvia Partridge explained in her evidence that she saw Peter and Donna Bengston in her office together and with her secretary, Sandra Lilley. During that meeting Sylvia Partridge raised with Donna Bengston the differences between the provisions of her 2007 will and the new will in which Donna Bengston was leaving everything to Peter Bengston. Donna Bengston told Sylvia Partridge “that she wanted to make it simple and that they were selling the farm and the stock would be
sold”.51 Sylvia Partridge also said:52
Donna said she no longer required the complicated provisions regarding distribution of stock which would be sold soon. Donna reiterated several times both before and after signing her new will that their old wills were very complicated wills and they now just wanted to simplify their wills as the livestock was about to be sold and they were looking at selling the farm. Donna was very clear about what she wanted to achieve by the terms of her new will and that Peter was to be the sole beneficiary and if he didn’t survive then to her siblings.
[59] Sylvia Partridge and Sandra Lilley both thought that Donna Bengston seemed normal. They could see no sign of Donna Bengston being “unhappy or suffering from any mental illness, pressure or undue influence”.53
48 Evidence in Chief of Sylvia Partridge at [3].
49 At [3].
50 Evidence in Chief of Angela Reed at [55].
51 Evidence in Chief of Sylvia Partridge at [9].
52 At [8].
53 At [10] and Evidence in Chief of Sandra Lilley at [6].
[60] Both Sylvia Partridge and Sandra Lilley were shocked to learn that Donna Bengston took her life the following day.54 Nothing was said by Peter or Donna Bengston during their brief meeting to alert Sylvia Partridge or Sandra Lilley that anything was unusual or remiss. Sylvia Partridge was certain that had she been told about Donna Bengston’s history of mental illness she would have immediately referred matters to an experienced lawyer in DAC.
[61] During the course of his evidence Peter Bengston said that he was not aware of the contents of Donna Bengston’s will until after she died. He also said that Donna Bengston conferred privately with Sylvia Partridge both on the telephone on the morning of 27 February 2012 and during the brief period they were at DAC’s offices. I have concluded Mr Bengston is incorrect in relation to both these matters. I have relied on Sylvia Partridge and Sandra Lilley’s unchallenged evidence on exactly what transpired when Donna Bengston made her 2012 will.
[62] The wills made by Peter and Donna Bengston on 27 February 2012 were, on their face, unremarkable. Peter Bengston’s new will continued the key provisions of his 2007 will. He left everything to Donna Bengston, and if she should die before him then Kim and Glynis Moleta (and/or their children) would benefit. Donna Bengston’s will mirrored Peter Bengston’s will. In her 2012 will Donna Bengston left everything to Peter Bengston. If Peter Bengston died before Donna Bengston then Kim and Glynis Moleta (and/or their children) would inherit Donna Bengston’s estate.
28 February 2012
[63] Early on 28 February 2012 Peter Bengston saw Donna Bengston working on paper work associated with the culling of livestock. I am reasonably confident Donna Bengston was completing the animal status declarations, although it is possible Peter Bengston is correct when he says that at 6.30 am on 28 February 2012
Donna Bengston was completing her analysis of the 37 cattle that were to be either
culled or retained.
54 Evidence in Chief of Sylvia Partridge at [10] and Evidence in Chief of Sandra Lilley at [7].
[64] At about 6.45 am Peter Linley saw Donna Bengston standing by the entrance to a shed on the farm. Some time between 7.00 am and 9.30 am Donna Bengston committed suicide in that shed.
Donna Bengston’s mental state at the time the 2012 was made
[65] I have had the benefit of very thorough and considered evidence from two psychiatrists, Dr Walsh and Dr Barry-Walsh.
Dr Walsh
[66] In mid-2012 Dr Walsh was retained by Mr Calver, counsel for Kim and Glynis Moleta, to form an opinion on Donna Bengston’s testamentary capacity. Dr Walsh made an assessment based primarily on Donna Bengston’s medical records and the accounts provided to her by Glynis Moleta, Angela Reed, Elizabeth Gwillim and John Atkinson. In her report dated 4 July 2012 Dr Walsh concluded that at the time of her death Donna Bengston suffered from major depression with “severe
agitation and mood congruent psychotic features”.55 Dr Walsh formed the view that
there were “... substantive grounds to question Mrs Bengston’s testamentary capacity
at the time she signed her will on 27 February 2012”.56
[67] Dr Walsh revisited her assessment after considering the evidence of all who testified before me, and after considering the report prepared by Dr Barry-Walsh. Dr Walsh concluded that nothing in the evidence she read caused her to change the conclusions she expressed in her 4 July 2012 report.
[68] Mr Macfarlane, counsel for Peter Bengston was very critical of Dr Walsh’s willingness to reach the conclusions set out in her 4 July 2012 report without considering the evidence of Peter Bengston or other evidence Peter Bengston relied upon to support his case that Donna Bengston made the 2012 will at a time when she had the mental capacity to make that will. I do not share Mr Macfarlane’s concerns about Dr Walsh’s professionalism because I am satisfied Dr Walsh genuinely
reviewed her original conclusion in light of all relevant evidence and that had she
55 Evidence in Chief of Dr Anne Walsh, Exhibit 1 at 3.
56 Evidence in Chief of Dr Anne Walsh, Exhibit 1 at 3.
thought her original conclusion was misinformed she would have altered her opinion if it was necessary to do so.
[69] Dr Walsh reached the following conclusions:
(1)It was unlikely Donna Bengston was primarily suffering from OCD, but if she did suffer from OCD it had minimal impact on her daily functioning prior to spring 2011.
(2)A noticeable change occurred in Donna Bengston’s mental health and functional capacity from spring 2011 and that, apart from some minor fluctuations, her condition continued to deteriorate to her death.
(3)It is highly probable Donna Bengston’s fears about contamination were “of psychotic proportions during the last weeks of her life”.57
(4)It is more probable than not that Donna Bengston planned her suicide.58
(5) Donna Bengston’s calm behaviour when she executed the 2012 will
was in keeping with her decision to commit suicide.59
(6)When Donna Bengston committed suicide she was in the middle of a major depressive episode.
(7)In the days leading up to taking her life Donna Bengston “would not have been in a position to give rational thought to the making of important decisions”.60
(8)“... it is significantly more probable that [Donna] Bengston was unable to give rational thought to the various moral claims which
might be made on her property than not. This woman was
57 Supplementary Evidence in Chief of Anne Walsh at [7].
58 At [8].
59 At [10].
60 At [12].
unquestionably suffering from a serious mental illness and that in short it is improbable that when she signed her will on the afternoon of 27 February 2012 that she did so during a ‘lucid moment’”.61
[70] When cross-examined, Dr Walsh went so far as to say that those with serious mental illnesses cannot make a valid will, even in a lucid interval because so-called “lucid intervals” do not necessarily relieve the person suffering from a serious mental disorder from the effects of that disorder.62
Dr Barry-Walsh
[71] Dr Barry-Walsh reached his final conclusions about Donna Bengston’s state of mind on 27 February 2012 after reviewing all of the evidence presented to me, including Dr Walsh’s expert evidence.
[72] In his summary of his expert opinion Dr Barry-Walsh explained:
(1)Donna Bengston suffered a serious mental illness. Her condition deteriorated in December 2011 and January 2012 when she suffered high levels of anxiety, panic episodes, sleep impairment, weight loss, periods of low mood, thoughts of despair and preoccupations and fears of contamination.
(2)It was reasonable of Dr Walsh to have raised the possibility that Donna Bengston was suffering depression as well as the anxiety disorders diagnosed at the Royal Adelaide and Hastings Hospitals.
(3)“It is a reasonable clinical certainty that [Donna Bengston’s] suicide was a result of her serious mental illness”.63
(4)It cannot necessarily be concluded that because Donna Bengston suffered serious mental illness that she therefore must have lacked
testamentary capacity on 27 February 2012. Donna Bengston may
61 At [18].
62 Notes of Evidence of Anne Walsh at 368, lines 6-12.
63 Supplementary Evidence in Chief of Justin Barry-Walsh at 1.
have lacked testamentary capacity when she executed her 2012 will but there is insufficient evidence to enable a definitive connection to be drawn between her serious mental illness and her having a lack of testamentary capacity.
(5) The evidence about Donna Bengston’s testamentary capacity is
ambiguous:
(a) on the one hand Donna Bengston appears to have changed her will rapidly and in a way that was possibly out of keeping with her careful and planned approach to decision-making. Also, according to Angela Reed, on the evening of 27 February 2012 Donna Bengston was acting quite irrationally; and
(b) on the other hand there is no evidence of mental disturbance when Donna Bengston executed her will on the afternoon of 27 February 2012. Also, there was some evidence to suggest that Donna Bengston had improved during the days leading up to her signing the new will.
[73] I am satisfied that at the time she made her 2012 will Donna Bengston was suffering from a serious mental illness. My reasons for reaching this conclusion can be distilled to the following four grounds:
(1)There is no doubt that Donna Bengston was suffering a serious mental illness immediately prior and subsequent to her making the 2012 will.
(2)The law presumes that, in the absence of evidence to the contrary, a person who suffers serious mental illness prior and subsequent to making a will also suffered from that mental illness at the time the will was made.
(3)Both Dr Barry-Walsh and Dr Walsh agree that Donna Bengston was in all likelihood suffering serious mental illness on 27 February 2012.
(4)The fact that Donna Bengston appeared normal to the staff at DAC when she executed the 2012 will is possibly because those who suffer some major mental illnesses, such as serious depression, can at times outwardly appear calm and rational. Thus, Donna Bengston’s normal presentation when she executed the 2012 will is likely to have created a misleading impression about her true state of mind.
Legal consequences
[74] Having determined Donna Bengston was suffering a serious mental illness at the time she made her 2012 will I must now determine whether, as a matter of law she had the mental capacity to make a valid will on the afternoon of 27 February
2012. In conducting this analysis I reiterate that all parties agree that when she made her 2012 will Donna Bengston:
(1) understood she was making a will and the consequences of doing so;
and
(2) knew what property she was bequeathing.
[75] Thus, all agree Donna Bengston had at least some degree of testamentary capacity. The key point of difference between the parties is whether Donna Bengston understood the moral claims of those who should have been considered to be beneficiaries when she made her 2012 will.
[76] It is at this point that the law and psychiatric evidence may appear to diverge. The reason for this is that the law prescribes those who have moral claims which should be considered when a will is made, independently of the testator’s mental capacity.
[77] In determining whether Donna Bengston had the capacity to understand and evaluate the moral claims of those who should have been considered to be
beneficiaries when she made her 2012 will, it is necessary to determine in this case who, as a matter of law, she had a moral duty to consider as beneficiaries. The reason for this is that if Peter Bengston was the only person who in law had a moral claim to Donna Bengston’s estate it would be wrong to rule that she lacked testamentary capacity for failing to understand other moral claims that the law does not recognise. The test is whether Donna Bengston had the capacity to understand the extent of moral claims that the law would require her to consider, not hypothetical moral claims.
[78] This is consistent with two other cases where the validity of the will turned
on the testator’s capacity to consider moral claims.
[79] In Pyle v Pyle,64 the deceased had no wife or children, and under a previous will had left everything to his surviving siblings and their children, but made a later will leaving everything to the Crown. The Court held that he could not have had sufficient understanding of moral claims, because of his delusional beliefs about his family that were a symptom of the paranoia he was suffering when he made the later will.65
[80] In Perera v Messer,66 testamentary capacity of the will maker also turned on his ability to understand the moral claims against his estate. The relevant factor the testator had to understand was the claims that his wife and daughter would have to his estate, which would be legally recognised as moral claims. In making a new will which reduced his wife’s share of his estate to half, leaving the other half to his live- in housekeeper, the Court found that he could not have understood the moral claims against his estate due to the effects of bi-polar disorder which elevated his mood and
impaired his judgment.67
[81] In determining who had a moral claim to Donna Bengston’s estate I shall: (1) explain the concept of testamentary moral duty;
64 Pyle v Pyle HC Whangarei M113/94, 29 July 2002.
65 At [26].
66 Perera v Messer HC Auckland CIV-2008-404-3712, 22 May 2009.
67 At [79].
(2)examine whether Charolais cattle breeders had any moral claim to cattle bred by Donna Bengston; and
(3) examine whether Kim and Glynis Moleta had any moral claim to
Donna Bengston’s estate.
Testamentary moral duty
[82] The concept of a testator’s moral duty, and the corresponding moral claims
on their estate is derived from jurisprudence decided under the Family Protection Act
1955. The shorthand expression “moral duty” is used to describe the obligation on a person making a will to make “adequate provision ... for the proper maintenance and support” of those who claim to have been owed a moral duty to benefit from the will.68 The persons entitled to claim under the Family Protection Act 1955 are limited by s 3 of that Act to the following six categories:
(1) The spouse or civil union partner of the deceased.
(2)A de facto partner who was living in a de facto relationship with the deceased at the date of his or her death.
(3) The children of the deceased.
(4) The grandchildren of the deceased living at his or her death.
(5)The stepchildren of the deceased who were being maintained wholly or partly or who were legally entitled to be maintained wholly or partly by the deceased immediately before his or her death.
(6) The parents of the deceased.
[83] However, the scope of potential moral claims is not necessarily confined to those people who are eligible to claim under the Family Protection Act 1955.69
68 Henry v Henry [2007] NZCA 42 at [27].
69 Re Sutton [1980] 2 NZLR 50 (CA), where, although the deceased’s de facto partner could not
make a claim under the Family Protection Act 1955, the Court recognised her moral claim when
Relatives with a moral claim recognised in judgments included a daughter in law,70 a nephew,71 and a brother and nieces who cared for the testator in his later years.72
[84] The overarching test is whether the person making the will has breached a moral duty to provide for the proper maintenance and support of the claimant. Proper maintenance and support includes both financial provision to meet economic needs and the recognition of the claimant as part of their family or their importance to the testator.73 Support means “sustaining, providing comfort” and “proper”
suggests something more than “adequate”.74 Financial need on the part of the
claimant is not necessary for the existence of a moral claim, as the requisite support can be in the form of the recognition of the claimant’s position as part of the testator’s family and/or from having been an important part of the testator’s life. Other factors that will be relevant to determining the existence of a moral claim include the claimant’s age, health, assets, income, contribution to the testator’s estate, and other assistance provided to the claimant by the testator during his or her
lifetime.75
[85] Two passages from Court of Appeal judgments are frequently cited as representing the correct judicial approach to moral claims to an estate. In Little v Angus the Court of Appeal stated:76
The inquiry is as to whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; and, if so, what is appropriate to remedy that breach. Only to that extent is the will to be disturbed. The size of the estate and any other moral claims on the deceased’s bounty are highly relevant. Changing social attitudes must have their influence on the existence and extent of moral duties. Whether there has been a breach of moral duty is customarily tested as at the date of the testator’s death; but in deciding how a breach should be remedied regard is had to later events.
it exercised its discretion under s 4(1) of the Act. See also Shannon v Bowering [2000] BCL 891 (HC) at 6.
70 Re Goudie [1992] NZFLR 769.
71 Webber v Webber HC Hamilton M216/89, 27 August 1991.
72 Bonney v Trustees Executors and Agency Co FC Invercargill FP13/94, 12 June 1996.
73 Williams v Aucutt [2000] 2 NZLR 479 (CA) at 492.
74 At [52].
75 Family Law Service (online looseleaf ed, LexisNexis) at [7.903].
76 Little v Angus [1981] 1 NZLR 126 (CA) at 127.
[86] Similarly, in Re Leonard Richardson J said:77
The question of whether the testator was in breach of his moral duty to his daughters as claimants on his bounty must be determined in the light of all the circumstances and against the social attitudes of the day. Mere unfairness is not sufficient and it must be shown that in a broad sense the applicant has need of maintenance and support. But an applicant need not be in necessitous circumstances: the size of the estate and the existence of any other moral claims on the testator’s bounty are highly relevant and due regard must be had to ethical and moral considerations, and to contemporary social attitudes as to what should be expected of a wise and just testator in the particular circumstances.
Charolais cattle breeders
[87] In her 2007 will Donna Bengston specified that Peter Bengston was to be responsible for the disposal of her Charolais cattle. She also specified that:
(1)Two year old heifers that were suitable for carrying on the Charolais breed were to be divided between Brent Fisher and Mark McKenzie, Charolais cattle breeders.
(2)Unmated one year old heifers suitable for carrying on the Charolais breed were to go to Angela and Lyall Reed.
(3)John McFadzean was to be able to choose two two year or two one year Charolais bulls (or a mix of these age groups) “for his role as trustee”.
(4)All other Charolais cattle and other cattle were to remain the property of Peter Bengston.
[88] Glynis Moleta was most concerned about the fact that in her 2012 will Donna Bengston made no provision for the continuance of her life’s work as a breeder of Charolais cattle. From Glynis Moleta’s perspective, the fact that the diamond ring
was not bequeathed to her in Donna Bengston’s 2012 will was a “peripheral thing”,78
77 Re Leonard [1985] 2 NZLR 88 (CA) at 92.
78 Notes of Evidence of Glynis Moleta at 88, line 34.
“not in the scheme of things” and that it was “nothing”.79 Glynis Moleta was primarily concerned that when Donna Bengston made her 2012 will she did not rationally consider what would happen to her life’s work as a breeder of Charolais cattle. For this reason Glynis Moleta’s case is that the breeders of Charolais cattle named in Donna Bengston’s 2007 will had a moral claim to Charolais breeding stock owned by Donna Bengston. Dr Walsh reinforced this approach when she said in cross-examination that Donna Bengston’s cattle “represented a future genetic line
[and that] there [were] moral obligations to continuing that [genetic line]”.80
[89] I conclude, however, that Donna Bengston had no moral duty to make provision in any will for the continuation of the genetic lines of Charolais cattle which she had bred. Correspondingly, the Charolais cattle breeders named in Donna Bengston’s 2007 will had no moral claims to any of the Charolais cattle bred by Donna Bengston. The Charolais cattle breeders were in no way dependent upon Donna Bengston and could never have realistically expected to have been provided for in Donna Bengston’s will in the way set out in her 2007 will.
[90] Furthermore, at the time she made her 2012 will Donna Bengston and her husband were planning on selling the Charolais cattle and Grassways. Preliminary discussions had been had with Mr Armstrong from DAC about selling the farm and Sylvia Partridge’s unchallenged evidence was that Donna Bengston wanted her 2012
will to be simple because “they were selling the farm and the stock would be sold”.81
[91] Thus, notwithstanding Glynis Moleta and Dr Walsh’s views to the contrary, I am in no doubt that Donna Bengston did not, as a matter of law, have to understand any possible claim to her Charolais cattle by Charolais cattle breeders. Even if she did need to consider the merits of preserving her life’s work she had decided to sell her cattle. This was not an irrational decision. It was a decision which any autonomous adult was entitled to make. Once the cattle were sold there would be
nothing to bequeath to the Charolais cattle breeders.
79 At 89, lines 6-7.
80 Notes of Evidence of Anne Walsh at 372, lines 25-33.
81 Evidence in Chief of Sylvia Partridge at [8]. See also Exhibit 1 at 23 where there is a record of Peter Bengston telling police that a possible purchaser of the farm had flown in on the day Donna Bengston died.
Glynis and Kim Moleta
[92] Glynis and Kim Moleta are both mature adults with their own adult children. Glynis Moleta has practised as an accountant in the Hawke’s Bay for many years. Kim Moleta is a director of an IT company in Wellington. Donna Bengston was the youngest of her siblings.
[93] When cross-examined Kim Moleta initially accepted that Donna Bengston had no moral duty to provide for him when making her will.82 However, as his cross-examination continued, Kim Moleta appeared to resile from this position.83
[94] When Glynis Moleta was cross-examined she was clear in her view that
Donna Bengston did not owe her “an obligation” to provide for her in her will.84
[95] It is conceivable that a testator could owe a moral duty to provide for the proper maintenance and support of their adult siblings. However, in my assessment, such circumstances would be rare and would require clear evidence that established that the testator had such a moral duty. In those circumstances the testator would have to understand the nature of those moral claims to establish the requisite testamentary capacity.
[96] In this case Kim and Glynis Moleta are successful independent adults who have supported themselves and their respective families independently of Donna Bengston. Neither Kim or Glynis Moleta have identified any factor that would justify them having a moral claim to Donna Bengston’s estate. Indeed, Glynis Moleta is clear that she had no expectation that Donna Bengston would provide for her in her will.
[97] I conclude that Donna Bengston did not need to understand the moral claims of her siblings as potential beneficiaries of her estate, at the time she made the 2012 will. Donna Bengston only had to understand the claims of those that the law would
recognise as moral claims and which she ought to give effect to when making her
82 Notes of Evidence at 12, lines 21-24.
83 Notes of Evidence at 16, line 35.
84 Notes of Evidence at 53, lines 5-25.
will. In this case the only person who had a moral claim to Donna Bengston’s estate was Peter Bengston. Donna Bengston cannot be said to have failed to understand her husband’s moral claim when she bequeathed her entire estate to him.
The diamond ring
[98] I have considered whether or not Donna Bengston owed a specific moral duty to Glynis Moleta, and her daughter Claudia Crasborn in relation to the diamond ring purchased by Donna Bengston in June 2005.
[99] In Williams v Aucutt, the Court of Appeal said:85
A child’s path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased. Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case. It may take the form of lifetime gifts or a bequest of family possessions precious to its members and often part of the family history.
[100] This passage recognises that where economic need is put to one side, a testator may in some cases have a moral duty to provide support in the form of sentimental family items being bequeathed to family members. It may have been possible to categorise the diamond ring as a special item that should be passed on to female members of the Moleta family and that Donna Bengston failed in her moral duty when she included the diamond ring in the totality of her estate which she bequeathed to Peter Bengston. However, on balance I do not think that conclusion is appropriate in this case because:
(1)the diamond ring was purchased by Donna Bengston on her own volition. She did not inherit the ring in the expectation that it would be passed on to future generations. She therefore had the right to do what she wanted with the ring; and
(2)Glynis Moleta regarded the diamond ring as insignificant and did not appear to regard it as something to which she had a moral claim.
85 Williams v Aucutt, above n 73, at [52].
[101] My conclusion in relation to the diamond ring does not preclude Peter Bengston gifting that ring to Glynis Moleta if he believes that is the right thing to do.
[102] I conclude, therefore, that Peter Bengston was the only person who had a moral claim to Donna Bengston’s estate and his claim was the only one she needed to understand when making her will. Those who benefitted under Donna Bengston’s
2007 will were not people to whom she owed a moral duty to continue to name as beneficiaries under her 2012 will. Therefore Donna Bengston did not fail to consider the position of those who had a legal moral claim to her estate when she executed her 2012 will.
[103] It is clear that Donna Bengston consciously decided to bequest her estate to her husband. Her 2012 will reflected a natural progression of increased bequests to Peter Bengston from her 1995 and 2007 wills. There was nothing remarkable about Donna Bengston’s decision to bequeath her entire estate to her husband even though her decision was made at a time she was suffering serious mental illness. Her decision was rational in the context of the Bengstons having decided to sell Grassways and the livestock. Sylvia Partridge said Donna Bengston was “emphatic
that they were selling the stock and the farm was going to be sold”.86 Donna
Bengston “reiterated” on various occasions to Sylvia Partridge that she wanted to make a “simple will”, a “simple husband and wife will” meaning a will that mirrored her husband’s.87
[104] I have reached this conclusion even though I harbour concerns about:
(1)the haste with which Donna Bengston appears to have made her 2012 will; and
(2)that staff at DAC were not told of the fact that Donna Bengston was being treated for serious mental illness.
86 Notes of Evidence at 119, line 20.
87 Notes of Evidence at 119, lines 15 and 19; at 120, line 30 and at 121, line 12.
Notwithstanding these concerns I am satisfied that Peter Bengston has discharged the burden of proving that Donna Bengston had the requisite testamentary capacity at the time she made her 2012 will.
Conclusion
[105] The question posed in paragraph [1] of this judgment is answered in the following way:
Donna Bengston had testamentary capacity when she made her will dated
27 February 2012.
[106] Probate is therefore granted to the plaintiff in relation to Donna Bengston’s
2012 will.
[107] If the parties are unable to reach agreement on costs they should file memoranda explaining their respective positions within 15 working days of this judgment. I will then make a decision about costs on the basis of the parties’ written
submissions.
D B Collins J
Solicitors:
John Harding, Waipukurau for Plaintiff
McDonald Brummer, Hastings for Defendants
Sainsbury Logan & Williams, Napier for Added Party
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