New Zealand Guardian Trust Company Limited v Morris

[2019] NZHC 1469

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002581

[2019] NZHC 1469

IN THE MATTER

of an application for an order of probate in solemn form in the estate of GINA ETHEL ARMSTRONG

BETWEEN

THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED

Plaintiff

AND

PATSY MORRIS

First Defendant

CAROLYN CHRISTINA WILSON
Second Defendant

LEISHA MAREE CAIRNS
Third Defendant

MEGAN GWENDOLINE WAHO

Fourth Defendant

Hearing:

26 June 2019

Appearances:

AWJ Johnson for the Plaintiff

No appearance by or on behalf of the Defendants

Judgment:

26 June 2019

JUDGMENT OF WOOLFORD J

Solicitors:           Martelli McKegg, Auckland

NZ GUARDIAN TRUST CO LTD v MORRIS [2019] NZHC 1469 [26 June 2019]

[1]    Gina Ethel Armstrong died on 26 April 2017 aged 82 years (the deceased). The plaintiff, the New Zealand Guardian Trust Company Limited, is named as the deceased’s executor and trustee in a will executed by her on 23 July 2001. The plaintiff now makes application for an order that probate of the will dated 23 July 2001 be granted in solemn form with the company appointed as executor and trustee. Probate in solemn form is sought because the deceased signed a later will, dated 17 August 2016. The plaintiff alleges that the deceased lacked testamentary capacity at the time she signed the later will.

Parties

[2]    The plaintiff is named as executor and trustee in the earlier will. The first defendant is the sole beneficiary under the earlier will. She is described as a friend of the deceased. The second defendant is the sole beneficiary under the later will. She was the deceased’s carer for a number of years. The third and fourth defendants are named as executors and trustees in the later will.

Formal proof

[3]    The plaintiff’s application is not opposed. The first defendant has filed a notice of appearance reserving rights in which she states that she does not oppose the plaintiff’s claim, but appears in order to reserve her rights in the event that another person becomes a party to the proceeding, or that a party takes a step in the proceeding that is against her interests.

[4]    The second and fourth defendants were unable to be located and, accordingly, the Court directed that service on them be dispensed with, but that the documents be brought to their attention by serving them on the third defendant (including an order for substituted service), and by means of a public notice placed in the New Zealand Herald. The third defendant was served with the proceedings. The second, third and fourth defendants have subsequently taken no steps in the proceedings.

[5]On 14 March 2019, the third defendant emailed the plaintiff’s solicitor stating:

Thank you for your time and speaking with me on Tuesday night. As discussed I am emailing to let you know that I have received the court documents and we will not be opposing anything.

We were always acting to honour Gina’s wishes who, though she was not a blood relative, was very loved, is missed and part of our family for well over ten years.

Affidavit evidence

[6]    Lynetty Nyamadzawo was formerly employed by the plaintiff and was the client manager for the deceased for around two or three years. During her time as client manager she was in contact with the deceased quite frequently. She looked after the deceased’s finances, paying bills and providing her with pocket money. Most of the time the deceased was bedbound, but was communicating closely with the second defendant, who was her caregiver.

[7]    The deceased was admitted to hospital on 15 August 2016. Ms Nyamadzawo visited her on 19 August 2016 in hospital to deliver her some flowers. On asking the deceased about how she had been, she started talking about a nice young man who the second and fourth defendant came with, who had asked her to sign a document to say that they were her family. Ms Nyamadzawo asked the deceased what the document was, but she was not really sure. She said she did not know much about the document, but she looked at it and signed it. Ms Nyamadzawo ascertained that the deceased had in fact signed a will. Ms Nyamadzawo then made inquiry of the duty nurses on 17 August 2016, the day the deceased signed the later will. The nurses confirmed that on that day the second defendant came with a gentlemen, but that they were in the deceased’s room with a closed door, so they did not know if she was signing anything. They did not recall seeing the fourth defendant at the same time, but recalled her coming in a little later on. They also confirmed that the deceased was very unwell and on oxygen since she had been admitted. It was their view that she should not be signing anything legal as she was seriously unwell. They also mentioned that they did not even know whether the deceased had capacity as she did not make sense most of the time.

[8]    Dr Jane Elizabeth Casey is a consultant psychiatrist and a psychogeriatrician. In a comprehensive report, Dr Casey described the deceased as an unmarried woman

who had lived an uncomplicated life up until her death aged 82 in 2017. There was evidence of probable pre-existing borderline intelligence with superimposed cognitive impairment and multiple medical problems. There was evidence of established cognitive impairment of a moderate degree in November 2012. She noted that the deceased was an anxious-dependent personality type who had a fragile emotional and mental state, with a predisposition to psychotic decompensation when under stress.

[9]    Dr Casey notes that on 15 August 2016, the deceased was admitted to Auckland Hospital very unwell with Type 2 respiratory failure. She had symptoms of a significant Delirium through much of this admission with the records noting fluctuation in attention, reduced level of consciousness, memory impairment and anxiety, from 16 August through until the day before discharge on 23 August 2016. There was no evidence in the clinical records that that the doctors or nurses were made aware that the deceased was asked to review and sign a legal document.

[10]   Dr Casey notes that the later will was a significant change to the earlier will and that the deceased was a fragile person who was medically unwell with an acute confusion superimposed upon established cognitive impairment. Dr Casey is of the view that the concept of a lucid interval or fluctuating capacity is a possibility, however, the deceased had established cognitive impairment of a moderate degree. Dr Casey is of the opinion that it is highly improbable that there would have been a period of lucidity that would have restored her to the cognitive state necessary for the comprehension, reasoning and appreciation of the consequences of the decision making with a revision of a will. In her expert opinion, the deceased was not of sound mind and would not have been able to demonstrate the mental capability to understand and make a sound assessment of the issues and circumstances at the time of the later will on 17 August 2016. Thus on the grounds of probability, the deceased would not have had testamentary capacity.

Discussion

[11]   Nothing has been brought to the Court’s attention that raise any doubt as to the deceased having testamentary capacity at the time of the earlier will dated 23 July 2001. In the normal course of events, that will would have been the subject of a

probate application in common form. The memorandum of Ms Atchison filed in the proceeding confirms to the Court that the affidavit for obtaining grant of probate, affidavit proving death and copy of will, would be sufficient for such purpose.

[12]   The primary question for the Court is therefore whether the deceased had testamentary capacity at the time of executing the later will on 17 August 2016. The test in relation to testamentary capacity is not contentious. In the recent High Court decision Public Trust v Dollimore,1 Simon France J stated:

Testamentary incapacity

[7]        I adopt the following statement from Woodward v Smith, noting the principles were recently affirmed in Loosley v Powell where the Court observed they were guiding propositions rather than a formula. The Woodward passage reads:

(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

1      Public Trust v Dollimore [2018] NZHC 3316 at [7] – [8].

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.

[8]        On several occasions during the hearing, the so-called presumption of capacity, and the burden of proof were raised. This focus no doubt reflects a recognition that the case could be seen as finely balanced. It is accordingly convenient to cite a statement of the principles as given by Tipping J in Bishop v O’Dea. The last two paragraphs are repetitive of Woodward, but helpful to the issues in the present case:

[1]In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity: Re White [1951] NZLR 393 (CA) and Peters v Morris (CA99/85: judgment 19 May 1987).

[2]If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have testamentary capacity rests on those who seek probate of the will: Public Trustee v Bick [1973] 1 NZLR 301 and Peters v Morris (supra).

[3]That onus must be discharged on the balance of probabilities: Watkins v Public Trustee [1960] NZLR 326 (CA). Whether the onus has been discharged will depend, amongst other

things, upon the strength of the evidence suggesting lack of capacity.

[4]In order to establish capacity, when in issue, those seeking probate must demonstrate the maker of the will had sufficient understanding of three things:

(a)that he or she was making a will and the effect of doing so (“the nature of the act and its effects”)

(b)the extent of the property being disposed of

(c)the moral claims to which he or she ought to give effect when making the testamentary dispositions.

These three matters derive from the leading authority of Banks v Goodfellow (1870) LR 5 QB 549 as cited by this Court in Ranby v Hooker (Court of Appeal, Wellington, CA 172/96, 16 September 1997) and in Peters v Morris (supra).

[5]If incapacity before the making of the will has been established, those seeking probate must show the will was made after recovery or during a lucid interval. In such a case the will is regarded with particular distrust and there is, in the first instance, a strong presumption against it, particularly if it displays lack of moral responsibility in the nature of the dispositions: 4 Halsbury’s Laws of England, Vol 17 at para 904.

[13]   Dr Casey’s report annexed to her affidavit is comprehensive and reviews all available medical reports from Auckland City Hospital from 25 April 2016 – 21 April 2017, being immediately prior to her death, together with mental health records from 6 September 2012 – 20 December 2013. In addition, she had access to file notes, letters, emails and other documents.

[14]   I am of the view that, on balance, the deceased would not have the testamentary capacity on 17 August 2016 to be in a position to execute a will on that date. She had a prior history of impairment. She was very unwell whilst in hospital. She was under medication and, a few days later, she was unable to explain the nature or the extent of the document she had signed.

[15]   There will, accordingly, be an order that probate of the will dated 23 July 2001 be granted in solemn form with the New Zealand Guardian Trust Company Limited appointed as executor and trustee. Costs of this application are to be met from the deceased’s estate.

Woolford J