Newman-Watt v Cruickshank
[2025] NZHC 2398
•22 August 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-600
[2025] NZHC 2398
UNDER the Administration Act 1969 and the Wills Act 2007 IN THE MATTER
of the Estate of Arthur John Mead and an application for grant of probate in solemn form
BETWEEN
VIANNEY LOUISE NEWMAN-WATT
Plaintiff/Applicant
AND
MURRAY LESLIE CRUICKSHANK
Defendant/Respondent
Hearing: 21 August 2025 Appearances:
T J Rainey for Plaintiff/Applicant
No appearance for Defendant/Respondent
Judgment:
22 August 2025
JUDGMENT OF McQUEEN J
[1] In this proceeding, the plaintiff/applicant (Ms Newman-Watt) seeks to resolve for which of two potential wills for the late Arthur John Mead the Court should grant probate:
(a)a will dated 19 December 1990 with a codicil dated 9 February 2004 (the 1990 Will), under which Ms Newman-Watts is the executor; or
(b)a will dated 27 May 2019 (the 2019 Will).
NEWMAN-WATT v CRUICKSHANK [2025] NZHC 2398 [22 August 2025]
[2] Ms Newman-Watt applies for a grant of probate in solemn form for the 1990 Will.
[3] The proceeding has been served on the defendant/respondent (Mr Cruickshank). Mr Cruickshank, who drafted the 2019 Will and was appointed under it as the sole executor, has confirmed that he does not intend to take any step in the proceeding. He has also renounced his appointment as executor. As a result, no one is defending the validity of the 2019 Will.
[4] The proceeding has also been served on other parties in accordance with the Court’s directions. Those parties are certain family members of Mr Mead living in the United Kingdom and also the Public Trust (to which Mr Mead granted an enduring power of attorney in relation to property). Neither the family parties nor the Public Trust have taken any step in the proceeding.
[5] Ms Newman-Watt has filed an affidavit in support of the application for grant of probate, attaching relevant documents including certain correspondence. Other affidavits have also been filed confirming service of the proceeding, and communications with Mr Cruickshank (although I note there is no affidavit from Mr Cruickshank).
[6] The determination of this matter has proceeded by way of a formal proof hearing under r 15.9 of the High Court Rules 2016 given that judgment by default is sought for other than a liquidated demand.
Background
[7] Mr Mead was born in Birmingham, in the United Kingdom, on 24 April 1928. He was one of 10 siblings. Of his 10 siblings, Mr Mead was survived by one sister, with whom he remained in touch until his death. Mr Mead emigrated to New Zealand and spent the latter 60 years of his life in New Zealand. Insofar as is known, Mr Mead did not marry, and he had no children.
[8] Mr Mead died at the Waimarie Private Hospital in Auckland on 19 August 2023. The causes of death were recorded to be deconditioning years, Alzheimer’s
dementia and advanced age years. Mr Mead had been in care for several years prior to his death.
[9] At the time of his death, Mr Mead’s estate comprised cash investments which the Public Trust is managing. On 23 December 2023, Ms Newman-Watt lodged a caveat in relation to Mr Mead’s estate. It appears no other filings have been made to date.
[10] Under the 1990 Will, the trustees and executors are to hold the estate, pay all just debts, funeral and testamentary expenses and duties payable on the estate and to hold the residue and distribute it to two of Mr Mead’s siblings, Bertie Mead and Audrey Brueton, as tenants in common in equal shares.
[11] If either of Bertie Mead and Audrey Brueton predeceased Mr Mead, but left surviving children, then such child or children are to take, upon attaining the age of 20 years, the share in the estate which his or her deceased parent would have taken had he or she survived Mr Mead. If there was more than one child, they are to take as tenants in common in equal shares.
[12] Bertie Mead and Audrey Brueton predeceased Mr Mead. Bertie Mead had no children at the time of his death. Audrey Brueton had three surviving adult children at the time of Mr Mead’s death. Those adult children have expressed an interest in the determination of this matter but were not inclined to take any formal step in the proceeding. Nor has Mr Mead’s surviving sister taken any such step.
[13] Under the codicil to the 1990 Will, dated 9 February 2004, Ms Newman-Watt is appointed as Mr Mead’s executor and trustee together with David Graham Smith. Mr Smith renounced his appointment on 23 August 2024.
[14] The Public Trust managed Mr Mead’s property affairs under an enduring power of attorney which he established due to difficulties in managing his property and finances associated with the diagnosis of Alzheimer’s disease. The appointment was given on 26 June 2019. This followed an assessment of Mr Mead’s capacity on 25 June 2019. The assessment by an Auckland City Hospital geriatrician noted:
I have assessed Mr Arthur John Mead on 25th June 2019 with regards to his capacity to create EPOA for property. He understands that he is having trouble with managing his property and his finances due to his poor memory. Given he has no family or friends in New Zealand, he is aware the best option for him is the Public Trust. I believe he has capacity to understand the implications of creating an EPOA for property and is capable of creating one at this stage.
[15] After Mr Mead’s death, Mr Cruickshank provided the Public Trust with the 2019 Will, which was executed only a short time before the enduring power of attorney, on 27 May 2019. The Public Trust and Ms Newman-Watt were previously unaware of the 2019 Will.
[16]The 2019 Will relevantly:
(a)cancels all earlier wills;
(b)appoints Mr Cruickshank as executor with the power to “manage my estate as he sees fit with complete freedom and sole discretion” including to:
(i)“pay my debts, funeral expenses, my executor’s administration expenses and any taxes on my dutiable estate” and
(ii)“deal with my residuary estate as he sees fit in his sole discretion”; and
(c)records that the receipt of the person who appears to be the proper officer of any charity which benefits by the will is to operate as a complete discharge to the executor who shall not be responsible to see that the gift of property is properly applied.
[17] The circumstances which led to Mr Cruickshank’s preparation of the 2019 Will are recorded in a letter from Mr Cruickshank’s solicitors, dated 19 November 2024. The letter states relevantly:
One of Arthur Mead’s (Arthur) neighbours (prior to residing at Waimarie private hospital) was Eva Maisie Brooks (Maisie). Murray considered Maisie an aunty (although there is no biological connection) and was appointed by Maisie as her attorney and was the executor of her will.
Shortly after Murray arranged for Maisie to move to Waimarie private hospital, it was also arranged for Arthur to reside at Waimarie. Neither Maisie nor Arthur had children, and it appears that over the years as neighbours, and then co-residents in Waimarie, they formed a strong relationship.
Although Murray did not have a close relationship with Arthur directly, they were connected through Maisie.
Maisie’s will left her estate to quite a number of various charities, and Murray understands that Arthur and Maisie spoke about their affairs, following which Arthur expressed to Murray a desire to leave his estate in the same manner as Maisie. Murray understood at the time the will was executed that Arthur had no living family.
[18] Mr Cruickshank’s lawyers also confirmed that he does not intend to take any steps in this proceeding and provided a notice of renunciation of Mr Cruickshank’s role as executor under the 2019 Will.
The claim/application
[19] The statement of claim pleads that the 2019 Will is not valid for two reasons. First, that it creates an intestacy as to the residuary estate and is accordingly not a valid will under the Wills Act, and second, that Mr Mead lacked testamentary capacity at the date the will was executed.
[20] The relief sought by Ms Newman-Watt is the grant of probate in solemn form in relation to the 1990 Will and that costs be met from the estate.
Discussion
[21] Both the wills meet the formal requirements in s 11 of the Wills Act; they are in writing and have been signed and witnessed as required by the Wills Act. As the 2019 Will revokes all previous wills, that would suggest that probate ought to be granted to the executor appointed under the 2019 Will, given s 16(a) of the Wills Act.
[22] However, there are concerns about the 2019 Will. It appoints Mr Cruickshank as sole executor with absolute discretion to deal with the residuary estate (after payment of debts, funeral and administration expenses) as he sees fit in his sole discretion. Although Mr Cruickshank has said that Mr Mead expressed an intention to leave his estate to various charities, the 2019 Will does not require the executor to
apply the residuary estate to any particular charity or for charitable purposes. Rather, the 2019 Will leaves Mr Cruickshank free to deal with the residuary estate at his absolute discretion.
[23] Counsel for Ms Newman-Watt, Mr Rainey, submits that the 2019 Will fails to properly dispose of the residuary estate, thereby creating an intestacy as to the residue. Thus, the 2019 Will is ineffective as a disposition of Mr Mead’s estate as is required under s 8 of the Wills Act. I accept that this is the case. There is no disposition of the residuary estate—rather the 2019 Will simply gives Mr Cruickshank as executor a power to manage it. I am therefore satisfied that the 2019 Will is not a will as defined in s 8 of the Wills Act.
[24] This means it is unnecessary for me to reach a conclusion about the second issue raised by Ms Newman-Watt, as to whether Mr Meads had testamentary capacity in relation to the 2019 Will.
[25] No question is raised as to Mr Meads’ testamentary capacity at the time of making the 1990 Will. Ms Newman-Watts is not therefore required to establish that he had testamentary capacity at the relevant time in relation to that will.1 If a will which is rational on its face is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of evidence to the contrary, to have been made by a person of competent understanding.2
[26] I am satisfied that the appropriate outcome in this matter is to grant solemn probate of the 1990 Will.
[27] I also consider that, in all the circumstances, it is appropriate for the costs of this application to be met by the estate.
1 Bishop v O’Dea (1999) 18 FRNZ 492 (CA) referred to in Farn v Loosley [2017] NZHC 317, [2017] 3 NZLR 383 at [41].
2 John Earles and others Dobbie’s Probate and Administration Practice (7th ed, LexisNexis, Wellington, 2025) at [49.7.14] citing Bishop v O’Dea, above n 1.
Result
[28] I grant probate in solemn form in respect of the will of Arthur John Mead dated 19 December 1990.
[29] I direct that the costs of this application be met out of the estate of Mr Mead as a cost of administration.
McQueen J
Solicitors:
Cairns Slane, Auckland for Plaintiff
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