Mumby v Mumby
[2017] NZCA 394
•6 September 2017 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA319/2016 [2017] NZCA 394 |
| BETWEEN | NEIL ROBERT MUMBY AND CHERIE KAREN CARNEGIE |
| AND | NEIL ROBERT MUMBY AND BRETT JAMES MUMBY BRETT JAMES MUMBY GLENDA DALE MUMBY |
| Hearing: | 28 June 2017 |
Court: | Brown, Dobson and Brewer JJ |
Counsel: | D A Wood for Appellants |
Judgment: | 6 September 2017 at 12.30 pm |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellants must pay the second and third respondents costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
Mr Cecil Mumby and Mrs Glennys Mumby farmed at Taipa for 40 years. When Mr Mumby died in January 2011 he left his share of the farm to Mrs Mumby. When she died the following year the farm went to her son, Brett (the second respondent), pursuant to her will of 12 August 2011 (the 2011 will).
Two of Mrs Mumby’s three other children, Neil and Cherie (the appellants), challenged the validity of the 2011 will. They said that an earlier will, signed on 17 February 2010 (the 2010 will), should be recognised as Mrs Mumby’s valid will.
The two wills
The 2010 will was in identical terms to Mr Mumby’s will, both of which were executed on the same day. The 2010 will did not leave the farm to Brett. It just gave him first option to buy it at current market value, discounted by 50 per cent. If Brett exercised this option to purchase, the residue would be divided between Neil, Cherie and their sister, Glenda (the third respondent). If he did not, all four children would share in the residue equally. Neil was also to receive a property situated on the Awanui Straight at Kaitaia.
After Mr Mumby’s death, Mrs Mumby executed a new will in August 2011. As noted, the 2011 will gave the farm, along with the farm stock and machinery, to Brett outright. The residue was to be left to Cherie and Glenda in equal shares. Neil was still to receive the Awanui Straight property.
Therefore, the 2010 will provided for a larger residuary estate than the 2011 will. It also gave Neil a share of the residue. Both Neil and Cherie would get more from Mrs Mumby’s estate if the 2010 will were operative.
The High Court judgment
The challenge by Neil and Cherie was determined by Courtney J in the High Court.[1] There were three grounds of challenge:
(a)Mrs Mumby did not know and approve the contents of the 2011 will.
(b)The 2011 will was affected by the undue influence of Brett.
(c)Mrs Mumby breached her moral duty to provide for her other children by leaving the farm entirely to Brett.[2]
[1]Mumby v Mumby [2016] NZHC 1284.
[2]A claim for relief under the Family Protection Act 1955.
Courtney J held:[3]
(a)Mrs Mumby knew and approved the contents of the 2011 will.
(b)There was no undue influence.
(c)Mrs Mumby did not breach any moral duty to her other children by leaving the farm to Brett. However, a just and wise testatrix would have sought to treat the other three children equally as between themselves. Adjustments needed to be made to ensure equal treatment, achieved by way of an increase to the share of Neil.
The appeal
[3]Mumby, above n 1, at [133]–[134].
There was only one ground of appeal advanced before us. It was that Courtney J erred in finding that Mrs Mumby knew and approved the contents of the 2011 will. This ground is advanced on the basis that, even though Mrs Mumby knew the contents of her 2011 will and signed it without being subject to undue influence, it is nevertheless invalid because she did not approve it in the sense of being pleased with its effect.
The evidence of Mrs Mumby’s feelings in respect of her 2011 will came from Ms Buckby, the legal executive who had prepared it. Ms Buckby had a professional relationship with Mr and Mrs Mumby since 2002 and had attended to preparation of wills for them since 2010. Her evidence described a personal relationship with Mrs Mumby as well, in which Mrs Mumby would call at Ms Buckby’s office without an appointment to discuss matters of concern to her.
When Mrs Mumby instructed Ms Buckby on a change from her 2010 will that was to constitute the new will in 2011, Ms Buckby questioned the appropriateness of the amendments given that they were contrary to the joint decision she and Mr Mumby had made in 2010. Through a process of drafts Ms Buckby invited Mrs Mumby to reconsider but Mrs Mumby remained firm in her instructions. She provided what Ms Buckby treated as negative reasons for giving the farm outright to Brett, stating that he had put a lot of time and effort into helping his father with the running of the farm after he had gone back to live there. She also suggested that she needed to leave the farm to him otherwise she might lose her sanity and to keep the peace at home.
The evidence was of a difficult relationship between Mrs Mumby and Brett. After a career in the army, he had returned to live at the farm with his parents and to work on it. He was perceived by other family members as lacking respect for his mother, and treating her rudely.
By the time the 2011 will was signed, Mrs Mumby clearly understood its terms and the effect of the changes she was making.
Knowledge and approval
At its simplest, to be valid a will must set out the wishes of the maker of the will for the disposition of the maker’s property upon death. If a person lacks mental capacity to decide and express his or her wishes, then any will purportedly made is not valid.[4] Likewise, if the maker of the will has been influenced to such an extent that the will does not set out his or her wishes, but rather the wishes of the influencer, then the will is not valid.[5] Finally, a person with capacity may decide and express
his or her wishes in a will, but if the wishes have been obtained by fraud then the will is not valid.[6]
[4]Banks v Goodfellow (1870) LR 5 QB 549 (QB) at 565.
[5]Hall v Hall (1868) LR 1 P & D 481 (Prob) at 482.
[6]Guardhouse v Blackburn (1866) LR 1 P & D 109 (Prob) at 116. An example might be where a person became a legatee by claiming falsely kinship with the testator.
Knowledge of the contents, of course, is a prerequisite for validity.[7] The execution of the will formally signifies approval of its contents as expressing the testamentary intentions of the will maker. However, even if a will appears in order on its face, it can be challenged on a number of grounds at common law, all of which go to whether in fact the will maker had knowledge of the contents of the will and genuinely approved them.
[7]Hastilow v Stobie (1865) LR 1 P & D 64 (Prob) at 68.
An example of a case where knowledge of the contents of a will was at issue is Re Whyte (deceased).[8] There a solicitor was instructed to prepare a new will identical to the existing will save for the replacement of an alternative trustee. By inadvertence the new will left out the major bequest. The testatrix was told that the new will was identical to her old will save for the replacement of the alternative trustee. It was not read over to her and she did not read it herself before signing it. McGregor J, on an uncontested application, found that in these circumstances the new will was invalid because the testatrix did not know and did not approve of the will.
[8]Re Whyte (deceased) [1969] NZLR 519 (SC).
If it is the apparent approval of a will which is challenged, then the challenge will succeed only if the contents of the will did not represent the testamentary intentions of the will maker because there was either:
(a)a lack of capacity;
(b)a lack of knowledge of the contents;
(c)an operative fraud; or
(d)an undue influence.
One of the early cases still cited with frequency is Barry v Butlin.[9] It remains illustrative of the law in this area.
[9]Barry v Butlin (1838) 2 Moo 480, 12 ER 1089 (PC).
Barry v Butlin concerned a challenge by a son to the will of his deceased father. The father had duly executed a will, drawn by his solicitor, in which he left his estate to his solicitor, his butler and a friend. The son alleged that his father’s apparent approval of the will was invalid because it had been obtained by a fraudulent conspiracy of the beneficiaries.
The Court approached the case on the basis that there were two rules to be observed:[10]
These rules are two; the first that the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator.
The second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.
[10]At 482–483.
Their Lordships went on to say:[11]
In all cases the onus is imposed on the party propounding a Will, it is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed … .
[11]At 484.
Later their Lordships reiterated that a Court must not grant probate of a will, where suspicion has been aroused, “without full and entire satisfaction that the instrument did express the real intentions of the deceased”.[12]
[12]At 485.
In the event, the Court held that the will did express the real intentions of the father. Their Lordships looked closely at the personality of the father, stating:[13]
A tolerably just estimate may be formed of the character and mental powers of [the father], the deceased, from the parol evidence on both sides, after making some allowance for the bias under which some of the witnesses speak, and the written documents, which are proved by the handwriting of the deceased.
From these sources it may be collected, that he was a person of slender capacity, of a retired disposition, indolent habits, and addicted to drinking, somewhat singular in his appearance, frivolous, and even childish in his amusements and occupations. On the other hand it is clear that he was not insane, and although the evidence embraces a period of more than fifty years, and an account of most of the transactions of his life, there is no satisfactory evidence of a single act, denoting that he was labouring under delusions, or indicating such a degree of folly as to show that he was unfit to be trusted with the management of his own concerns. Though certainly not a man of business, he was capable of transacting the ordinary affairs of life, and the letters produced under his hand, and the parol evidence of the annual settlement of his accounts, and attendance at the bankers, distinctly show, that he paid considerable attention to his pecuniary concerns, and was competent to the conduct of his own affairs. It is not indeed disputed on one side but that he was of testable capacity, nor on the other, that he was a person of weak mind: as to the extent of that weakness there is a difference, but admitting its existence, even to the degree represented on the part of the Appellant, the only consequence will be, that it adds to the suspicion which unquestionably belongs to the circumstance of the attorney who prepared the Will, taking no less than a fourth of the Estate, and the Legatees taking the whole to the exclusion of his own family, and calls upon us to watch the proof of the Will itself with increased jealousy and suspicion.
[13]At 486–488.
The Court then took into account the evidence as to the estrangement of the son from the father and accepted that it gave good grounds for the son’s exclusion from the will.
Finally, the Court looked at the evidence of the testator’s knowledge of the contents of the will before concluding:[14]
The undue influence, and the importunity which, if they are to defeat a Will, must be of the nature of fraud or duress, exercised on a mind in a state of debility, are insinuated but not proved.
[14]At 491.
The requirement of knowledge and approval is a short way of saying that to be valid a will must express the genuine testamentary intentions of the will maker. It is only lack of capacity, lack of knowledge or some species of fraud (including undue influence) which will invalidate a properly made will. The requirement for a will maker to approve of its contents goes no further than requiring her or him to fully understand the terms in which the will is set out, and to confirm that those words reflect the testamentary intentions as conveyed to the draftsperson.[15] Beyond that, there can be no requirement that the will maker be happy with the outcome or that it reflects the ideal instructions for dealing with her or his estate. Without being subjected to undue influence from anyone else, there are a range of situations in which will makers will feel compelled to discharge an obligation or respect a duty in testamentary provisions that are at variance with the ideal that they would be happiest with.
[15]See Hastilow v Stobie, above n 7, at 68 where it was noted that the word “assent” would be more proper than “approve”.
There is a good policy reason behind the common law setting the bar for invalidation of a will as high as this. If the proponent of a will had to prove that the will maker was wholeheartedly in favour of the contents of their will, or at least not unhappy with them, then the scope for litigation would be vast. Lord Neuberger MR put it this way:[16]
[16] There is also a policy argument … which reinforces the proposition that a court should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle … , namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.
[17] Further, such disputes will almost always arise when the desires, personality and state of mind of the central character, namely the testatrix herself, cannot be examined other than in a second hand way, and where much of the useful potential second hand evidence will often be partisan, and will be unavailable or far less reliable due to the passage of time.
[16]Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380 at [16].
Here the appellant argues that Mrs Mumby did not approve her 2011 will because she felt backed into a corner. She was not really happy about the contents of her 2011 will. She felt she had no choice but to depart from her 2010 will and leave the whole of the farm to Brett, even though that disadvantaged his siblings, particularly Neil.
Mrs Mumby’s feelings of ambivalence or reluctance, and this form of pressure, do not invalidate her 2011 will. There is no undue influence in this case. That was the conclusion of Courtney J and the appellants take no issue with the Judge’s conclusion.
Result
The appeal is dismissed.
We do not consider that this is a case where costs should be met from the residue of the estate. The appeal lacked arguable merit and the residue is not large. Further, one of the residuary legatees supported the will. Accordingly, the appellants must pay the second and third respondents costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Therese M Slade, Auckland for Appellants
Thomson Wilson, Whangarei for Second Respondent
Sinisa Law Limited, Auckland for Third Respondent