Nijsse v Squires
[2004] NZCA 317
•15 December 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA53/04
BETWEENCHARLOTTE NIJSSE
First AppellantANDPETER LECLERC SQUIRES
Second AppellantANDRICHARD JOHN SQUIRES
Third Appellant
ANDDAVID RICHARDSON SQUIRES
First RespondentANDDORA SMITH
Second Respondent
Hearing:27 October 2004
Court:McGrath, Hammond and Chambers JJ
Counsel:S T D Clapham for Appellants
B A Corkill for Respondents
Judgment:15 December 2004
JUDGMENT OF THE COURT
AThe appeal is allowed. The grant of probate in solemn form, to the first respondent, of the will of the late Evelyn Lingard Macpherson dated 18 December 2000 is revoked.
BThe reasonable costs and disbursements of the parties to this proceeding are allowed out of the estate. In the event that the parties are unable to agree on those costs, they may submit memoranda, in the usual way, to the High Court in respect of the costs in that Court; and to this Court in respect of the costs on the appeal.
REASONS
(Given by Hammond J)
Table of Contents
Para No
Introduction [1]
The law [6]
Background
Mrs Macpherson [14]
The estate [16]
Prior testamentary instruments [17]
The relationship between David Squires and Mrs Macpherson [24]
Family relations [26]
Mrs Macpherson is hospitalised
Mrs Macpherson’s condition on admission [28]
Mr Sumpter is consulted [31]
The medical staff are concerned [38]
Mrs Macpherson still wants a lawyer [41]
The circumstances of the execution of the hospital will [45]
Mrs Macpherson’s condition following the execution of the will [62]
The High Court Judge’s holding [64]
Resolution [66]
Conclusion [72]Introduction
[1] Evelyn Lingard Macpherson, an elderly woman, made a will on the evening of 18 December 2000 whilst she was seriously ill, at an Auckland hospital. She subsequently died. David Squires, the first respondent and a nephew of Mrs Macpherson’s, applied for probate of that will. That application was opposed by Charlotte Nijsse, Peter Squires, and Richard Squires, the niece and nephews respectively of Mrs Macpherson and the current appellants. They took the view that at the time that will was executed Mrs Macpherson lacked testamentary capacity. They counter-claimed for a grant of probate of a will dated 27 July 1989, of which the Public Trustee is the named executor. As a matter of convenience we will refer to the 18 December will as “the hospital will”; we will refer to the 1989 will as “the Public Trust will”.
[2] In the result, in a judgment delivered on 12 December 2003 (CIV 2002-404-1618) Baragwanath J pronounced in favour of the hospital will, and directed that it be admitted to probate.
[3] The appellants appeal against that decision. The relief they seek is that the Public Trust will should be admitted to probate.
[4] In the view we take, the case turns on the inference to be drawn as to Mrs Macpherson’s testamentary capacity at the time of execution of the hospital will. And, for reasons we will traverse in this judgment, we take a different view than the trial Judge on that issue. We think that it has not been satisfactorily established that at the time of execution of the will Mrs Macpherson had testamentary capacity in the sense in which the law understands that term.
[5] In the result, the appeal will be allowed. We think the grant of probate of the hospital will should be revoked. But it will be open to the appellants to move for probate of the Public Trust will, provided that all of the necessary requirements for the probate of that will are satisfactorily established.
The law
[6] This case is about the condition of the testatrix at the time she executed her will. At heart, it is a case about the inference to be drawn as to her “capacity” at that time. It is however convenient to set out at this point the long-settled principles of law which govern this area of the law. In particular, we wish to emphasise from the outset where the burden of proof lies in a case of this character, and the vigilance which is required in the execution of a will in the sort of circumstances which attended on this case.
[7] The law is conveniently summarised in a passage from the judgment of McMullin J in Peters & Ors v Morris CA99/85 19 May 1987:
On the issue of proof Tompkins J referred to the judgment of Hood J in In the will of Wilson (1897) 23 CLR 197 at 199, which is referred to in the judgment of this Court in Re White [1951] NZLR 393 and Public Trustee v Bick [1973] 1 NZLR 301. In White O’Leary CJ said:
If a will rational on the face of it is shown to have been executed and attested in the normal manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But, if there are circumstances in evidence which counter-balance that presumption, the decree of the Court must be against its validity unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it: (per Cresswell J in Symes v Green (1859) 1 Sw & Tr 401; 164 ER 785). In the end the tribunal must be able affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator’s competence at the time of the execution of the will: (Smith v Tebbitt (1867) LR 1 P & D 398, 436 and Sutton v Sadler (1857) 3 CB (NX) (sic: NS) 87, 97; 140 ER 671, 675).
The matter of onus was also referred to in a passage from the judgment of the High Court of Australia in Worth v Clasohm (1953) 86 CLR 439 as follows:
A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the Court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the Court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. (453)
The approach adopted to the matter of proof in all these cases is the same - that before a will can be admitted to probate it must be shown that the testator was a person of sufficient mental capacity; that in the absence of any evidence to the contrary it will be presumed that the document has been made by a person of competent understanding; that once a doubt is raised as to the existence of testamentary capacity an onus rests on the person propounding the will to satisfy the Court that the testator retained his mental powers to the requisite extent; that in the end the tribunal must be able to declare that it is satisfied of the testator’s competence at the relevant time, but that a will will not be defeated merely because a residual doubt remains as to that matter. The matter has been put in different ways with varying degrees of emphasis according to the circumstances of each case but we do not detect any difference of judicial opinion, significant for the purposes of the present case, in the passages cited. (At 24-25, emphasis added.)
[8] It will be noted that in Peters & Ors v Morris this Court emphasised the distinct burden resting on the proponent of a will where a doubt is raised. That point was also emphasised in Brown v Pourau [1995] 1 NZLR 352, and recently the England and Wales Court of Appeal, in Re W (Enduring Power of Attorney) [2001] Ch 609, referred to both of these New Zealand authorities with approval in that respect. See also Tanner & Ors v Public Trustee& Ors [1973] 1 NZLR 68.
[9] It is perhaps worth recording the following observation by Sir Christopher Staughton in Re W, to the effect that the burden does not shift in a case such as the present: the onus of proof is always on the proponent of the will, we would add in both a formal and an evidential sense. The passage in question reads as follows:
Where there is only one issue in the case and the burden of proof rests on one party, it seems to me wrong to say that the burden of proof shifts after one witness has been called and given evidence which, if believed, would discharge that burden. Courts do not make up their minds on an issue when they have heard only part of the evidence. Surely one can say, if one wishes, “Well, the plaintiff is doing quite well. I wonder if there is going to be any evidence from the defendants.” But to say that the burden of proof has shifted seems to me to be wrong. One should make up one’s mind on that issue having heard all the evidence on it; and I do not consider that in such a case the burden of proof can be said to shift. At the end of the day, unless the burden as to that issue has been discharged, the person on whom it originally rested does not succeed (at 616).
[10] In a case such as the present, testamentary capacity can only be determined by drawing an appropriate inference as to the testatrix’s capacity at the relevant time. Those propounding the hospital will were obliged to show that a proper inference could and should be drawn, from all the material before the Court, that Mrs Macpherson had testamentary capacity at the time the will was executed.
[11] As to the drawing of an inference, Lord Wright put that matter (in the context of a negligence case) as follows:
[An] inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some of the cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture (Caswell v Powell Duffyrn Associated Collieries Limited [1940] AC 152 at 167-70).
[12] It is also important to recall in the context of a case such as the present that the matter cannot be left finely balanced, or equally consistent with different views. The Judge must be able to find that the reasonable inference relating to testamentary capacity can and should be drawn, otherwise the attempt to propound the will must fail.
[13] Finally, as to the law, Mr Corkill sought to persuade us that this was a case which turned on the credibility of those witnesses who gave evidence before the Judge. We do not accept the application of that proposition here. This was not a credibility case in the usual sense of that term. It is of a character which required the articulation and weighing of the relevant factors, based on the evidence which the Judge had found, and which had led the Judge to conclude that there was in this case the requisite testamentary capacity. This Court is in as good a position as the trial Judge to assess what inference should be drawn in this case.
Background
Mrs Macpherson
[14] Evelyn Lingard Macpherson (“the deceased”) was born on 1 May 1906. Therefore, at the time of the events which are relevant in this proceeding, she was 94½ years old.
[15] The deceased did not marry until her 50s. She was a widow at the time of her death.
The estate
[16] The estate of the deceased comprises a house property in Auckland with a Government valuation of $320,000; a Westpac bank account containing $76,854; an ANZ account containing $66,353; an investment with UDC of $20,000; and 440 United Networks shares valued at $3,652; or, $486,859 in all. There are some chattels which, for estate purposes, have been given a nominal value.
Prior testamentary instruments
[17] As to testamentary instruments prior to the hospital will, the deceased made a will on 21 July 1965 which left her estate to her husband Duncan Macpherson, with bequests over, in the event that he should predecease the deceased, to certain nieces and nephews, including the appellants.
[18] After Mr Macpherson’s death, the deceased made a new will on 27 July 1989. This is the Public Trust will. Under that will, the income from the residue of the deceased’s estate, after payment of debts, funeral and administration expenses is to go equally to the deceased’s sister Diana Squires, and her brother-in-law Neville Squires, whilst they were alive; and, after the death of one of them, to the survivor. On the death of that survivor the residue is to be divided equally between three nephews - David Squires, Peter Squires and Richard Squires - and a niece, Charlotte Nijsse, should they be living at the death of the testatrix.
[19] It is convenient to note here that the terms of the hospital will, leaving aside for the moment the question as to the validity of it, are that three quarters of the deceased’s estate would go to the first respondent, David Squires, and one quarter of that estate to the deceased’s half sister Dora Smith, and to her nephews Peter and Richard Squires, in equal shares.
[20] It follows that the first respondent Mr David Squires had a distinct pecuniary interest in the execution of the hospital will, and has a very real interest in the outcome of this proceeding.
[21] It is convenient to note here that Mr David Squires gave evidence that following the testatrix’s death he came across a hand-written, unwitnessed, document. It reads as follows:
My Will 9.6.98
I leave my property of 95 Forrest Hill Rd North Shore to my nephew and Godson David Richardson Squires. My Post Bank and West Pack Holdings to be divided between David R Squires, Peter Le C Squires, Charlotte Squires and Richard J Squires.
Evelyn Lingard Macpherson.
[22] This item was produced in evidence. The writing is shaky. In the middle of the document, where the names of the persons are written, there is some over-writing. It was accepted by the trial Judge - indeed it was common ground - that this document was in the deceased’s writing.
[23] The circumstances surrounding the creation of that document are not known. Neither Mr David Squires nor Mr Sumpter, the deceased's usual solicitor, was aware of its existence, or its contents. This document is inconsistent with both the Public Trust will and the hospital will.
The relationship between David Squires and Mrs Macpherson
[24] Mr David Squires undoubtedly had a close connection with the deceased. He had been living and working in the lower half of the North Island. He deposed that in May of 1997 the deceased invited him to come and live with her in her home in Auckland. He said, “She said to me that if I came to Auckland to live with her and look after her she would leave me her house in her will after she died. I did not immediately take her up on that offer”. Mr Squires did however subsequently make arrangements to sell his home in Wellington. It is common ground that he moved to the deceased’s home in Auckland in March of 1998.
[25] After David Squires moved to live with the deceased he did a certain amount of domestic work, such as cooking and shopping, and he assisted with housework and other chores. When the deceased was ill he drove her to clinics for radiation therapy, and to hospital. The deceased had some facial disfigurement which had resulted from her illness. She was very sensitive on that score. She was to have undergone plastic surgery, which was in fact never performed. This resulted in the deceased becoming somewhat reclusive.
Family relations
[26] There was a good deal of evidence before the trial Judge as to relations within the deceased’s family. The Judge rightly endeavoured to set to one side the unnecessary and unhelpful aspects of this evidence. He was at pains to keep the focus on why the deceased might have done what she did, in relation to her testamentary dispositions. This was of distinct importance in the High Court because the Judge was also faced with a claim of undue influence. Hence any family “manoeuvrings” were always, to an extent, going to be of some importance under that head. That claim has not been further pursued before us.
[27] In fairness, however, this should be said. The respondents are entitled to the benefit of the trial Judge’s finding of fact that, in broad terms, the deceased behaved more or less in the way that David Squires and other witnesses claimed the deceased said she would: viz., that by this time in her life at least, she intended David Squires to be her primary beneficiary. However we emphasise that the issue before this Court is not whether there was undue influence, which required the Judge to consider evidence directed to that issue, and which claim was not upheld. The sole issue before us is whether, at the time she executed the hospital will, the deceased had testamentary capacity.
Mrs Macpherson is hospitalised
Mrs Macpherson’s condition on admission
[28] On 7 December 2000 the deceased suffered a stroke. She was admitted to North Shore Hospital. The admission notes indicate that the deceased was suffering from a “left cerebro-vascular accident”, and pneumonia. She was orientated as to place and person, but “confused”. She was recorded as being “able to talk with slurring of speech”.
[29] It is common ground that initially, and for a good deal of the time thereafter, the deceased was in a distinctly confused state. At times this may have reached delirium.
[30] On the morning of 9 December 2000 a nursing note was made (at 6.00am) recording the deceased’s condition. This read as follows: “restless night, slept for short periods. Remains confused, attempting to pull [intravenous] tube out”.
Mr Sumpter is consulted
[31] Mr David Squires regularly visited the deceased. He deposed that she told him that she wanted to get a lawyer to visit her to prepare a new will. On the morning of 11 December 2000, Mr David Squires called at the law offices of an experienced Auckland legal practitioner, Mr Michael Sumpter. Mr David Squires told Mr Sumpter that he understood that the law firm acted for the deceased. Mr Sumpter confirmed this, and that his firm was holding the title to her home in safe custody for her.
[32] Mr Squires told Mr Sumpter that his aunt had been admitted to hospital following a stroke, that she was aged 94, and that she was paralysed on her right side. Mr Sumpter was asked to prepare Enduring Powers of Attorney for personal care and welfare and property for the deceased. Mr Sumpter made a file note which recorded: “She wants change will to him - she said all went to her sister, his mother” (which was not correct as to the Public Trust will).
[33] Mr Sumpter arranged to meet Mr Squires at the hospital that afternoon, having already prepared the documents which he had been asked to attend to. Mr Sumpter saw the deceased. Mr Squires endeavoured to explain to the deceased who Mr Sumpter was, and why he was there. Mr Sumpter noted, “It was obvious to me that she was barely conscious and that it would be impossible for her to understand the implications of any legal documents or for her to give me instructions”.
[34] Mr Sumpter took the view that there was no point in his remaining at the hospital. He left, but only after having indicated to Mr David Squires that he would be available professionally at any stage if the deceased’s condition improved.
[35] Mr Sumpter’s records indicate that there was a subsequent telephone call from Mr Squires, on 13 December. A message recorded for Mr Sumpter by a member of his staff said, “His aunt has improved considerably, perhaps you could visit her tomorrow afternoon”. Mr Sumpter said he telephoned Mr Squires to confirm that he would be able to do so, but he was told that the deceased was not well enough to be seen by him.
[36] On 17 December a further telephone message was left on Mr Sumpter’s residential answer phone. It conveyed a message that he should “hurry up [and see the deceased]”. That day was a Saturday. Mr Sumpter was in Hamilton. He did not return to Auckland until late that day.
[37] On 19 December, at 1.30pm, a member of Mr Sumpter’s firm took a message from Mr Squires which read: “Re his mother’s will - he won’t be needing your services any more so could you please do his bill for him”.
The medical staff are concerned
[38] On 11 December 2000 - which was the date Mr Sumpter first visited the deceased - she was also seen by a medical consultant, who noted her as “alert, responsive”. A speech language therapist described her as “sitting upright, alert and co-operative”. However, a nurse’s note recorded that evening (after Mr Sumpter’s visit) found her responsive but, “speech is unclear”.
[39] It seems plain enough on all the evidence that, from somewhere around 13 or 14 December 2000, the deceased’s mental faculties deteriorated. Quite apart from the difficulties which were apparent from the time of her admission, she had by now developed an infection.
[40] The testatrix was under the primary supervision of a medical registrar, Dr Patrick, from 7 December until 19 December 2000. That doctor’s clinical notes indicate that between 15 December and 19 December he observed the deceased to be disoriented as to time and place on the three occasions on which he saw her. That sort of assessment was confirmed by a number of nursing notes. For instance, on 14 December, Nurse Crichton (who had a good deal to do with the deceased) noted her at 9.15pm as being “Miserable…becoming agitated, attempting to get out of bed and pulling at in-dwelling catheter”. The following day Nurse Crichton noted that the deceased “continues to hang legs out of bed and pulling nightie and covers off”. In evidence, she said “this behaviour indicates to me a patient who is confused and not aware of her actions”.
Mrs Macpherson still wants a lawyer
[41] Mr David Squires deposed that the deceased was still concerned to see a lawyer - so much so that she told him “to bloody hurry up” with obtaining a lawyer. He endeavoured to advance that matter on the deceased’s behalf.
[42] On the morning of 18 December 2000 Mr Squires contacted Gaze Burt, a firm of solicitors who had their law offices close to the North Shore Hospital. He spoke with a Mr Standen.
[43] The Court intends no disrespect, but it is necessary to record that Mr Standen had only completed his law degree at the end of 1999, he was in his early 20s, and he had had only several months in legal practice.
[44] Mr David Squires instructed Mr Standen to attend at the hospital, and make a new will for the testatrix. Mr Standen was told that the testatrix’s lucidity had varied, and that Mr David Squires would phone him and tell him to go to the hospital when Mr Squires considered the testatrix was in a state where she could make a will. Mr Standen said that Mr Squires told him the deceased had said she “wanted to leave some money and her property, I believe that’s the property at Forrest Hill Rd, to Mr Squires”. Later, he said that he understood the deceased’s intention to be to leave her property and some cash to David and then let David Squires dispense the residue between the remaining relatives.
The circumstances of the execution of the hospital will
[45] On the morning of 18 December 2000, that being the day the will was executed, the deceased was 94 years and seven months of age. She was seriously ill, in hospital, and on the most favourable view of things she had not been lucid for distinct (perhaps most) periods of time.
[46] The events of 18 December began with some discussion, at the deceased’s home, between David Squires and his brother, Mr Peter Squires. Peter Squires gave evidence that David Squires told him what he thought should be in the will, namely that the will should leave him the house and the use of the deceased’s money until he was 65 years of age and “could claim the pension”, at which point the money could be shared amongst Charlotte, Richard and Peter. The Judge appears to have accepted that this conversation took place.
[47] In any event, both David and Peter Squires then left the deceased’s home to go to the hospital to see her. When they attended on her, she was lying on her bed. She did not recognise or speak to Peter Squires. She appeared not to be focusing.
[48] About 9.50am Mr Standen took “instructions” from Mr David Squires, who said that his aunt wanted to leave money and her property to him. Mr Standen was aware that Mr Sumpter (the deceased’s regular lawyer) was in no hurry, he having proposed “to wait until she’s coherent”. Mr Standen was therefore well aware that an experienced legal practitioner had grave reservations about the deceased’s condition.
[49] Mr Standen deposed that at this point of the day, he, Mr Deering (a Justice of the Peace who had been taken to the hospital to witness the will) and Dr Patrick agreed that the deceased was not coherent enough for will instructions to be taken from her. Coincidentally, while Mr Standen and the Justice of the Peace had attended at the ward that morning, Dr Patrick had also been on his rounds of patients. He was made aware that the solicitor was there for the purpose of attending to a will. Dr Patrick examined the testatrix, and informally assessed her. She was unable to give correct answers to questions put to her by Dr Patrick. He formed the opinion that she was confused and not oriented to time or place, and did not have the capacity to make decisions. Dr Patrick told Mr Standen that he was surprised that anyone who had seen the testatrix that morning could have thought that she was in a fit state to make a will.
[50] Dr Patrick dictated a note at noon, in which he recorded that he had “informed [the] family Mrs Macpherson most likely would not understand if the will is organised at present”.
[51] That situation continued to prevail past noon. Nurse Crichton came on shift at 2.30pm. She made a note describing the deceased as “confused and disoriented during that shift”. Nurse Crichton felt it unusual that the deceased was being invited to sign a will because to her, the deceased did not really seem in control of her faculties. Indeed, she was so concerned that she discussed her concerns with another nurse. It was suggested to her that she should record these concerns. Nurse Crichton noted, at the end of her shift at 10.15pm:
Obs. Stable. Afebrile…Nephew fed Mrs Macpherson dinner. She ate ¾. Also fed thick o[range] j[uice]…Mrs Macpherson has been drowsy and sleepy at times. Communicating minimally with nursing staff. Nephew called in solicitor and JP and ? Will signed. Mrs Macpherson confused at times asking for dinner when already had.
The question mark in that note was to indicate Nurse Crichton’s lack of knowledge of whether the will had in fact been executed by that time.
[52] The morning endeavour to have a new will executed having been aborted, Mr David Squires had arranged with Mr Standen that he would telephone him as soon as he (Mr Squires) considered that the testatrix was coherent. He returned to the hospital and fed the deceased her dinner on the evening of 18 December 2000. The testatrix subsequently told her nurse that she wanted her dinner, when in fact she had already eaten it.
[53] In response to a telephone call from David Squires, Mr Standen attended at North Shore Hospital again at approximately 8.00pm that evening. He met with Mr Squires and they then went to the testatrix’s bedside. These two persons were accompanied by another Justice of the Peace, Evelyn Melva Stancliffe.
[54] Between 8.00 and 9.15pm, Mr Standen obtained will instructions, returned to his office to prepare the will, and returned to the hospital and had the will executed.
[55] At no point either while the will instructions were being taken, or prior to the will being executed, was a mental state and cognitive assessment performed. Nor were any distinct tests undertaken to assess whether the deceased had testamentary capacity, such as asking her a series of general or unrelated questions in an endeavour to establish her general alertness.
[56] As to the preliminary taking of will instructions, and on the issue of who would be beneficiaries, this was addressed by Mr Standen asking questions, against a list of names drafted by him from instructions given to him by Mr David Squires earlier in the day. After receiving some responses which Ms Clapham fairly characterised as “nonsensical”, instructions as to the distribution of the estate were finally obtained by the device of putting fractions to the deceased for her to respond to. She communicated to Mr Standen only by nodding her head in assent, or articulating single words.
[57] The idea of resorting to fractions seems to have come from Mr Standen. The record is silent as to where he got that methodology from, or why he resorted to it. The idea is also quite contrary to what David Squires had told Mr Standen that the deceased wanted to do. Yet there is no evidence whatever of Mr Standen having clarified or discussed those (hearsay) instructions with the deceased.
[58] The significance of this passage of events is that there was no true dialogue between Mr Standen and the deceased as to the instructions being given.
[59] Mr Standen then left the hospital ward to prepare the will. During the time that he was away, the evidence was that the deceased did not converse with those in her room. Her eyes were sometimes closed and sometimes open.
[60] When Mr Standen returned, and the will was produced to be executed, the deceased did not read over the will. Mr Standen deposed as to the actual execution of the will, as follows:
16.I explained the new Will to Eve and stated clearly to her that this Will revoked former Wills which meant that this is the only Will that would count for her. I explained that she appointed David Richardson Squires to be her executor and trustee. I explained that firstly her property would go to paying debts and then three quarters of what remained would go to David Richardson Squires. Once again Eve nodded her head and indicated that she was happy for it to go to David Richardson Squires.
17.Eve appeared to clearly understand all of this information.
18.I then explained to Eve that one quarter of her estate was to be shared between Dora Smith, Peter Leclerc Squires and Richard John Squires. Eve indicated again that she was happy with this and that this was her wish.
19.I asked Eve if she was right handed and she replied that she was. This is important because Eve was paralysed down her right hand side from a stroke. I asked her to hold the pen in her left hand and make a mark on the allocated place on the signing page. Evelyn opened up her hand and I placed a pen in it. Evelyn closed her hand around the pen.
20.Next Evelyn lifted the pen approximately six inches to where I was holding the Will. With great effort Evelyn held the pen up there and slowly moved it around the page.
21.I also asked Evelyn to make another mark on the page of the Will that revokes other Wills and appoints David Squires as the Executor. Once again Eve used great effort to lift the pen up to the page and make a mark.
22.Afterwards I asked Eve if she was happy that she had now made a Will. She replied that “I am very happy”. When I was leaving I said to Eve something to the effect of “thank you for seeing us, you did very well”. Eve replied to me “thank you for coming in”, or something to that effect.
23.I fully believe that Eve was completely lucid and clear as to what she was doing. Eve appeared to fully understand what we were saying and not only understood that we were making her Will but actually indicated who she wanted in the Will and who she did not want in the Will.
24.I have no qualms about verifying the validity of the Will. As a lay person I consider that her instructions were clear and she appeared to understand what she was doing and who all of the potential beneficiaries were.
[61] The affidavit from the other attesting witness, Mrs Stancliffe JP is quite brief. She deposed that on the taking of the will instructions, Mr Standen had a list of “possible” beneficiaries. The deceased was asked - one by one - whether she wished to leave that person anything, and responded by saying “yes”, or nodding or shaking her head. She confirmed David Squires as her executor and trustee. She said that when Mr Standen returned, he read the will “step by step” to the deceased, and asked her if she agreed, “at each step”. Mrs Stancliffe made no reference to Mr Standen having utilised fractions whether in taking instructions, or on the execution of the will.
Mrs Macpherson’s condition following the execution of the will
[62] The clinical notes are clear that the deceased continued to be afflicted by impaired cognition after 18 December. On 9 January 2001 she was discharged from the North Shore Hospital and moved to a private hospital in Auckland, where she resided until her death on 2 June 2001.
[63] Some of the clinical notes after 18 December are revealing. For instance, in an assessment on 20 December by Waitemata Home and Older Adults Service, the deceased was unable to respond to her goals, and Mr David Squires responded on her behalf. A nursing clinical assessment that same day noted that she was having difficulty with speech and expression, and significantly, that at times she gave inappropriate “nods” and at other times used wrong words. There was a suggestion that she would need to be referred to a speech language therapist.
The High Court Judge’s holding
[64] The Judge’s conclusion was expressed in these terms:
[150] Overall I have concluded that, on the evidence of the attesting witnesses, considered in the light of the medical evidence and against the background of the family relationships, the evidence establishes the probability that the will instructions and its execution occurred during a lucid interval.
[65] To reach this conclusion, the Judge appears to have relied in particular on these factors. First, the will was not “officious”, as the Judge termed it, by which was meant generally that the will was not in its terms an irrational kind of a thing, or more colloquially, “mad headed”. Secondly, the deceased knew this was a will. Thirdly, she knew, broadly, the extent of her property and the claims on her. Fourthly, this was a simple document. Fifthly, the relevant lay witnesses - Mr Standen and Mrs Stancliffe - considered that she knew what she was doing. Sixthly, the Judge placed distinct reliance on the unsigned document dated 9 June 1998. He described it as being “of particular help” [143], apparently on the footing that the terms of that note were broadly consistent with what the deceased did effect by the hospital will.
Resolution
[66] The first point to be made is that this was a case in which the proponents of the hospital will were always faced with the difficulty of showing that a seriously ill woman, of very advanced years, had made a will in a lucid moment when it was common ground that for much of the time in the relevant period, she was not lucid. In such a forensic context, the Court will be even more conscious of the need for a clear demonstration of testamentary capacity.
[67] Secondly, the Judge was undoubtedly correct - and we reinforce his observations in this respect - to note the extreme unwisdom of proceeding, in the circumstances of this case, with the execution of this will absent a properly conducted examination of an appropriate kind to test the deceased’s testamentary capacity at that time. It was put to Mr Standen by a principal in his firm that this is what should occur. This did not occur because of the exigencies of the moment and, it appears, Mr David Squires’ anxiety to see this matter pressed on with (albeit that he had been urged to do so by the deceased). The advice of the more senior lawyer was sound - this was, after all, a woman who only hours before did not know what day of the week it was, where she was, or who her doctor was. As the Judge rightly said, it is entirely unfortunate that this matter was entrusted, in difficult circumstances, to a relatively inexperienced solicitor.
[68] Thirdly, we attach much less weight to the 1998 document than the Judge did. In testamentary capacity cases it is the mental capacity of the will maker at the time of the execution of the will which is all important. The fact that there might have been some rough concordance with an unexecuted (if wavering) document from several years earlier is not, in our view, entitled to great weight. More significantly, the Judge appears not to have had regard to areas of discordance. At best, this document was “neutral”, in an evidential sense, in this case.
[69] Fourthly, and all importantly, there are the circumstances of the execution of the will itself. The evidence is that this was a decidedly elderly and infirm woman; lying in bed; not able to communicate beyond (at best) a few words, and barely able to raise a hand to make a mark, let alone make a signature. There is no evidence of what might be said to have been a “proper dialogue” from which we could begin to infer that there was an adequate understanding on the part of the testatrix. This last point is critically important. For instance, presumptively, the relevant shares had been translated into fractions by Mr Standen in getting instructions. It is a matter of common sense that understanding a fraction, and what it means in relation to assets, involves some mental agility and computation to realise its true impact.
[70] There is no reference to how these fractions were arrived at; precisely how they were explained to the deceased; and whether she knew what the result would actually be (in relation to her assets). Rather, the evidence was that the deceased was functioning (at best) at a level of generality in expressing her wish to treat the possible beneficiaries “according to their worth”, as she said. This suggests a mind not functioning with particularity. The overall impression is that the disposition of this estate was not gone into in any depth at all.
[71] What was absolutely required in a testamentary capacity case of this kind was to show affirmatively that the testatrix was actively engaged with and alive to her circumstances in the particular exercise which she was undertaking. It would even have been wise, in this case, to have recorded what was actually said. It is true that Mr Standen and Mrs Stancliffe have said that they thought she was sufficiently responsive. That is conclusory. A Court must necessarily direct its close attention to what was actually said or done. In a case such as the present there has to be a sufficient exchange or basis from which a proper inference of the appropriate capacity can be drawn. That has not been demonstrated. Again, it cannot be too strongly emphasised in a case such as the present that both the formal and evidential burden is on the proponent of a will.
Conclusion
[72] In the result, we are not satisfied, on all that was before the High Court, that the burden on the proponents of this will was satisfactorily discharged. Therefore the hospital will should not have been admitted to probate.
[73] The appeal is allowed. The grant of probate in solemn form of the hospital will to David Squires is revoked.
[74] In consequence, it will be open to a proponent of the Public Trust will to move for probate of that will, if the formalities attendant on that will can be satisfactorily established. We cannot presently admit that will to probate: the appropriate evidence is not before us.
[75] As to costs, it is unfortunate that what is a relatively modest estate by today’s standards has been the subject of extensive litigation of this character. Patently it is in the interests of the affected parties to endeavour to resolve the remaining issues with respect to this estate with a minimum of litigation costs, or the estate will be quite dissipated. That said, as to the costs on the litigation to date, counsel were agreed that the parties should have their costs out of the estate; and it was also suggested that they should have their costs in this Court. We agree that the costs of the parties should come from this estate, both in the High Court and in this Court. If counsel are unable to settle those reasonable costs and disbursements, then they may submit memoranda to the High Court, or this Court, respectively, as the case may be.
Solicitors:
Horsley Christie, Wanganui for Appellants
Robinson & Co, Auckland for Respondents
0
0
0