Newton v Dunasemant
[2025] NZHC 2618
•9 September 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2022-485-614211
[2025] NZHC 2618
UNDER the Administration Act 1969 IN THE MATTER
of an application in solemn form and Part 27 of the High Court Rules 2016
IN THE ESTATE
of DOROTHY HELEN NEWTON
BETWEEN
MICHAEL GEORGE NEWTON
Applicant
AND
CHRISTINE ROBIN DUNASEMANT
Respondent
Hearing: On the papers Counsel:
W E Andrews for the Applicant J W Donald for the Respondent
Judgment:
9 September 2025
JUDGMENT OF GAULT J
This judgment was delivered by me on 9 September 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Ms W E Andrews (counsel for the applicant), Barrister, Auckland
Ms C C Endean (applicant’s instructing solicitor), Dawsons Lawyers, Auckland Mr K I Bond and Mr J W Donald, Braun Bond & Lomas Ltd, Hamilton
NEWTON v DUNASEMANT [2025] NZHC 2618 [9 September 2025]
[1] Mrs Dorothy Newton died on 5 August 2022, aged 91. A dispute arose as to whether probate should be granted in respect of her last will dated 16 February 2021, or of her earlier will dated 20 December 2016 on the basis that at the time of her later will she was subject to undue influence and lacked testamentary capacity.
[2]The parties are now agreed that the matter may be resolved on the papers.
Background1
[3] The estate primarily consists of the sale proceeds of a villa at the Bupa Tararu retirement village in Thames. The approximate value of the estate is $338,677.
[4]Mrs Newton had three children:2
(a)Michael, the applicant;
(b)Christine, the respondent; and
(c)Fraser, who has been served with proceedings but has not taken any steps.
[5]On 20 December 2016, Mrs Newton executed a will (2016 will) under which:
(a)Christine was appointed as sole executor and trustee of the estate; and
(b)the residue of Mrs Newton’s estate would be divided equally between her three children.
[6] On 16 February 2021, Mrs Newton made a subsequent will (2021 will) under which:
(a)Christine was appointed as sole executor and trustee of the estate;
1 The background, the claim, the proceedings and the defence were conveniently summarised in the memorandum of counsel for the respondent dated 2 April 2025.
2 I will use first names for the adult children not for informality but for ease of differentiation.
(b)Michael would receive a gift of $20,000;
(c)Fraser would receive a gift of $10,000; and
(d)Christine would receive the residue of Mrs Newton’s estate.
[7] At the time of making the 2021 will, Mrs Newton was living independently in her retirement villa and, although well supported by Christine, largely managed her own day-to-day living.
The claim
[8] Michael alleged that Mrs Newton was unduly influenced and/or lacked capacity at the time she made the 2021 will.
[9] His allegation of undue influence centred around the decision to reduce the extent of the gifts the brothers would receive under the 2021 will.
[10] His allegation of an absence of capacity was supported by the affidavit of Dr Jane Casey dated 23 August 2023. Dr Casey opined that:3
… Mrs Newton’s age and medical conditions, the process of the revision of the will, along with the lack of evidence that Mrs Newton understood the nature and extent of her estate, the impact of the distribution of the estate and the potential risk of a claim on the estate, raise the possibility that testamentary capacity was in doubt at the time of the signing of the last will dated 16 February 2021.
…
In Mrs Newton’s case, several of these risk factors were present rendering her as an aged testator to be susceptible to undue influence. In the family Affidavits and the clinical notes, there are no features that may be considered protective or mitigating factors. …
[11]Dr Casey’s opinion was based on her review of:
(a)the two wills;
3 Affidavit of Dr Jane Casey dated 23 August 2023 at [63] and [65].
(b)copies of legal correspondence from the firm of solicitors which prepared both wills (Fitzgerald Law and Mr Fitzgerald);
(c)affidavits from Michael and his wife;
(d)medical records from Thames Hospital and Waikato DHB;
(e)medical records from Thames Medical Centre and Bupa Tararu; and
(f)Christine’s affidavit of 31 July 2023 which was prepared with the assistance of her former counsel (which Mr Donald, counsel for Christine, submits did not quite engage with the issues raised by the proceedings).
[12] Critically, Dr Casey did not have the advantage of receiving direct evidence of Christine or Mr Fitzgerald regarding the making of the 2021 will. Such evidence has now been filed, and Mr Donald submits it establishes that Mrs Newton had capacity.
Proceedings
[13] On or about 29 September 2022, Michael lodged a caveat over the 2021 will, alleging undue influence and lack of testamentary capacity.
[14] Christine applied for probate in October 2022. An order nisi was issued in January 2023 whereby Christine sought for Michael to show cause why probate should not be granted in respect of the 2021 will.
[15] Timetabling directions were imposed on Christine requiring the filing of a statement of claim and supporting evidence for a solemn form proceeding. Christine failed to comply and alleges she was let down in that respect by her previous counsel. Christine’s former counsel also conceded, Christine says without instructions, that Michael had shown cause sufficient to require the matter to proceed in solemn form.
Michael then filed a statement of claim on 24 November 2023 seeking:
(a)a declaration that the will made on 20 December 2016 is Mrs Newton’s last valid will;
(b)an order granting him probate in solemn form of the 2016 will;
(c)costs; and
(d)any other relief the Court considered just.
[17] A three-day fixture was set down and Christine was further directed to file a statement of defence with supporting evidence by 19 December 2023. Christine was granted an indulgency by the Court and her former counsel filed her statement of defence on 13 February 2024 (again, Christine says without instructions). However, by 24 April 2024, Christine was yet to file any supporting evidence. The matter was set down for a one-day hearing on 18 July 2024.
[18] Christine instructed new lawyers in February 2024 but neither they nor Christine was informed of the hearing scheduled for 18 July 2024. Christine and her new lawyers did not find out about the hearing until 16 July 2024, whereupon they immediately applied for an adjournment of the 18 July hearing date. Moore J adjourned the hearing with costs on the adjournment application awarded to Michael in the amount of $1,000 plus GST to be paid from the estate.
[19] Christine filed an amended notice of defence on 4 September 2024, and affidavits in support (from Christine and Mr Fitzgerald) on 7 February 2025.
The defence
[20] Christine seeks to propound the 2021 will and defends against Michael’s claims upon the grounds:
(a)While the dramatic change in the terms of the 2021 will from those of the 2016 will might give rise to an initial presumption of undue
influence, Christine’s evidence and that of Mr Fitzgerald rebut that presumption by elaborating on the disconnect between Fraser and Mrs Newton and the falling out between Michael and Mrs Newton regarding the sale of Mrs Newton’s home to Michael and the dispute that arose out of that sale.
(b)Christine and Mr Fitzgerald’s evidence relating to the deceased’s mental acuity and capacity at the time of making the 2021 will also contradicts the posthumous evidence provided by Dr Casey.
[21]With respect to the post-dated nature of Dr Casey’s review of the evidence:
(a)Dr Casey relies on the summary record of Mrs Newton’s Mini-ACE cognitive assessment undertaken on 1 April 2022, more than a year after the making of the 16 February 2021 will.4
(b)Dr Casey did not have the benefit of considering the notes from Mrs Newton’s regular treating doctors at Te Korowai Hauora o Hauraki (Te Korowai). In particular, a letter dated 21 August 2021 from Dr Erik McClain (Dr McClain) at Thames Hospital to Te Korowai’s clinical director, Dr Martin Mikaere (Dr M Mikaere), records:
I had the pleasure of following up with Dorothy Newton she is a very pleasant 90 year old well known to me …
In general she is a well appearing 90 year old female in no obvious distress, alert and orientated … patient has 5/5 strength throughout all extremities and no oedema noted today.5
Further evidence6
[22] Ms Sarah Harrison (Ms Harrison) made an affidavit dated 2 April 2025. Ms Harrison was the service coordinator for Te Korowai’s Home Assist Team in February 2021 when the 2021 will was made. Ms Harrison was familiar with
4 Affidavit of Dr Casey, above n 3, at [38] and [54]-[55].
5 This letter was attached to the memorandum of 2 April 2025 and later annexed to the affidavit of Ms Carly Simon dated 18 June 2025 – see n 7 below.
6 This evidence was filed after the memorandum of 2 April 2025.
Mrs Newton and attended Mrs Newton’s home as part of her role ensuring Te Korowai’s clients were receiving the necessary services. Ms Harrison said she did not detect any signs of cognitive impairment nor have any concerns that Mrs Newton was suffering any cognitive decline.
[23]Dr M Mikaere made an affidavit dated 12 June 2025.7 He said:
6.Although I did not personally treat Dorothy often during this 2020 to 2021 period, I held a substantial consultation with her on 30 June 2020. Dr McClain’s observation above accords with my recollection of the interactions I had with Dorothy throughout the 2020 to 2021 period, even if some of those were a quick chat in the waiting room before or after her consult. She appeared to me astute, sharp and engaged in our discussions.
7.The Medical Record shows that my colleague, Jana Tomsky Corvalan (Dr Corvalan) held substantial consultations with Dorothy which relevantly record:
7.1 14 December 2021:
Pt here w daughter
she is well excetp have new rash very itchy she is cscrtching and beleding due to Pradaxa (she think it may be reaction to pRadaxa)
…
pt lives in Villa retaairment Home Tararuy and daughter lives 10 min away and see her daily
…
NAd pelasnt 90 Y F with daughter JTC A+O well appearing
7.2 2 June 2021:
Pt is here w daughter…
NADF Pleasant 90 y F w daughter in WC
7.3 9 March 2021:
Pt here w daughter to review; she has CHF [congestive heart failure] – last hospital stay 10/20202…
Today doing wall – lives alone and daughter next door… nad Pleasnt 89 y F w daughter
(sic)
7 An issue arises with omission of the exhibits to Dr Mikaere’s affidavit, but I accept the exhibits as explained in the affidavit of Ms Simon dated 18 June 2025.
8.NAD in the Medical Record stands for “no abnormality detected”.
9.The Medical Record shows that my colleague, Hinetamatea Mikaere (Dr [H] Mikaere) held a substantial consultation with Dorothy on 28 October 2020 which records:
pc HME
seen with daughterfollow up from hospital discharge lives alone in retirement village
plenty of family support daughter is in touch regularly managing ok at home
…
impression
-CHF [congestive heart failure]
-managing well
10.Covid era restrictions meant that at times we could only attend Dorothy (or Chris on her behalf) by phone. However, as above, Dorothy had a number of substantial in-person consultations at our clinic.
11.From my perspective, if I had any concerns at that stage about Dorothy’s mental capacity or any cognitive decline, I would have raised that and made the appropriate referrals for assessment. Although I cannot speak for my colleagues, I expect Doctors [H] Mikaere and Corvalan would have taken similar steps had they observed any signs of cognitive decline.
12.In my interactions with Dorothy, I did not observe any signs of cognitive decline.
13.As a matter of observation, I know Dorothy was living independently in a retirement villa in February 2021. I understand that the rest homes often have clauses in their occupation right agreements whereby if an occupant is observed to be suffering any cognitive decline, then the occupant is required to be assessed and moved into care if there are concerns of dementia. To my knowledge, Dorothy remained in her villa through until April 2022.
14.Furthermore, through Te Korowai, Dorothy was receiving regular welfare checks through our home assist team. These checks are intended to review our patents’ needs at home and whether they were satisfied with the level of care and the home assistants who provided personal cares (showering, toileting, dressing) and home help (housework). As part of these welfare checks, Te Korowai staff are trained to identify whether there have been any changes to a patient’s health necessitating more assistance, for example cognitive decline. I am not aware of any concerns being raised boy the home assist team with our clinical team.
(footnotes omitted)
Discussion
Procedure
[24] I first note that the matter has become procedurally unorthodox. Following adjournment of the fixture last year, counsel updated the Court on 19 March 2025 stating that the parties were close to settlement and the respondent would file a memorandum addressing any further determination required by the Court. The applicant would provide input into the memorandum and would be unlikely to oppose the respondent’s position.
[25] The memorandum of counsel for the respondent (Christine) dated 2 April 2025 stated:
… the parties are agreed that the issues of capacity and undue influence have been satisfactorily addressed, and they wish to resolve the matter.
Given the compromise reached between the parties, the respondent submits that the matter can be resolved by treating Christine’s extant application to propound the 2021 will (and the subsequent statement of claim by Michael) as an application in common form under r 27.4 and pursuant to r 27.8 of the High Court Rules 2016.
The effect of such treatment is that a determination as to capacity and undue influence in respect of the 2021 will could be made on the basis of the affidavit evidence.
[26] The 2 April memorandum also referred to two cases addressing r 27.8.8 That rule applies if an application for probate in solemn form is the subject of a compromise and provides that the application can be treated as an application under r 27.4 (without notice/in common form) with evidence given by affidavit.
[27] However, the 2 April memorandum was not a consent memorandum. I sought confirmation from the applicant (Michael) that the matter could be determined on the papers. The memorandum of counsel for Michael dated 2 June 2025 confirmed that the matter could be resolved on the papers filed in Court.
8 Ball v Saint [2023] NZHC 814; and Trustees Executors Ltd v Poppe [2024] NZHC 2346.
[28] Therefore, I accept that the matter may be determined on the papers (including affidavits) by consent even though there is no evidence or even a consent memorandum confirming the compromise so as to make r 27.8 applicable.
[29] In any event, as the 2 April memorandum of counsel for Christine acknowledges, an agreement on whether the testator had capacity or was unduly influenced is not determinative.9 The orders sought could not be made by consent. The Court still needs to be satisfied on the affidavit evidence before making the orders.
[30] Further, the 2 June memorandum of counsel for Michael says nothing about proposed resolution, in support or opposition. It indicates no more than lack of opposition by Michael. The Court would have been assisted by a memorandum indicating Michael’s substantive position.
[31] I therefore deal with the matter on the papers on the basis that Michael does not oppose the orders sought by Christine, but I still need to be satisfied on the affidavit evidence before I could make the substantive orders sought.
Capacity
[32] I accept the submissions for Christine that the evidence of Dr Casey was not fully informed by Christine’s subsequent evidence or the evidence of the solicitor at the time the 2021 will was made (Mr Fitzgerald). It also seems that Dr Casey did not see the correspondence between Thames Hospital and Dr M Mikaere, nor the medical records held by Te Korowai. I also accept that Dr Casey’s opinion was largely based on cognitive testing (of which only summary results were available) which took place 13 months after the 2021 will was made. Even so, Dr Casey is an experienced consultant psychiatrist, specialising in old age psychiatry.
9 Re Estate of Watson [2014] NZHC 874 at [12]; Ball v Saint [2023] NZHC 814 at [17]; and
Rakich v Cox [2015] NZHC 703 at [10].
[33] Mr Fitzgerald was an experienced solicitor who had acted for Mrs Newton on several matters since 2016 (including the 2016 will). He considered she had capacity at the time she signed her 2021 will. I accept he was well placed to make an assessment of her capacity. He said he did not have cause to require medical or geriatrician certification prior to preparing her wills. He considered she was sharp and witty, and at times sad and disappointed regarding her sons.
[34] As well as the further evidence from Christine and Mr Fitzgerald, I now have the affidavits of Dr M Mikaere and Ms Harrison. Given the further evidence of Mrs Newton’s status at the time of her 2021 will (and six months later in the case of Dr McClain’s letter to Dr M Mikaere), and the limitations with Dr Casey’s evidence, I accept that on the balance of probabilities Mrs Newton had capacity to make the 2021 will.
Undue influence
[35] Accepting that Michael’s claim of undue influence reached the presumption threshold, I also accept Christine’s submission that the presumption is rebutted by her evidence and that of Mr Fitzgerald as outlined above. Mr Fitzgerald was familiar with the sale of Mrs Newton’s home to Michael. I consider that on the balance of probabilities Mrs Newton was not subject to undue influence when making the 2021 will.
Conclusion
[36]I conclude that the 2021 will was valid.
Result
[37]Accordingly, I make orders:
(a)declaring that Dorothy Helen Newton had testamentary capacity to make a valid will on 16 February 2021; and
(b)granting probate of Dorothy Helen Newton’s will dated 16 February 2021.
[38]There is no issue as to costs.
Gault J
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