[1] When Ronald Murray died on 4 July 2019 he left three children: Tania Murray, Sandra Murray, and Stephen Murray; and five grandchildren, including Daniel Murray, son of Tania.1 This case is about Ronald’s final will executed in 2018, by which he left the residue of his estate equally to Tania, Sandra, Stephen and Daniel. It is about whether Tania and Daniel exerted undue influence on Ronald in the final two years of his life, coercing him to make the will, execute an enduring power of attorney in Tania’s favour, and recklessly spend money he had from the sale of his home on each of them.
[2] The proceedings began with the plaintiff, Tania, filing proceedings for an order granting probate in solemn form to her as the executor and trustee appointed by Ronald under his final will. This came after the first defendant, Sandra, lodged a caveat against grant of probate for administration of the estate.
[3] The scope of the proceedings expanded when Sandra and the second defendant, Stephen, filed their statement of defence and counterclaim. By way of affirmative defence, they claim that Ronald lacked testamentary capacity when he made the 2018 will due to the many medical disorders he was plagued with, most seriously lung cancer that eventually spread to his brain and adrenal glands and caused his death.
[4] As a second affirmative defence, they claim that Ronald did not know and approve the contents of the 2018 will.
[5] Their third and final affirmative defence is that Tania and/or Daniel exerted undue influence over Ronald in relation to the 2018 will. They claim that Ronald was physically and mentally vulnerable, and that Tania and Daniel took advantage of this vulnerability and encouraged or pressured Ronald to change his earlier will by which he appointed Stephen executor and left the residue of his estate to his three children only, to the arrangement under the 2018 will, which included Daniel. Sandra and
1 As the parties share the same surname I use their first names in this judgment. I mean no disrespect by doing so.
Stephen seek a declaration that the 2018 will is invalid, and the last valid will is dated…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Murray v Murray [2021] NZHC 2257
Case
[2021] NZHC 2257
Decision Date
CaseChat Overview and Summary
In Murray v Murray, Sandra and Stephen, the children of Ronald Murray, sought an order for tailored discovery of documents from Ronald’s daughter Tania and her son Daniel. They alleged that Ronald’s final will and enduring power of attorney in favour of Tania were the result of undue influence by Tania and Daniel. They further claimed that Ronald had been pressured by Tania and Daniel to spend his savings on them. The parties had previously agreed to tailored discovery of 46 categories of documents, but Sandra and Stephen now sought discovery of 16 categories which Tania and Daniel refused to provide. Associate Judge Gardiner considered the principles of tailored discovery and whether the disputed documents were relevant to the issues in the proceeding. The judge found that most of the documents were not relevant or that requiring their discovery would be unreasonable and disproportionate. The judge made orders for tailored discovery of three categories of documents, varied the consent order to remove one category, and dismissed the rest of Sandra and Stephen’s application. The judge also made orders as to costs and further case management directions.