IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2019-419-000062
[2020] NZHC 2988
IN THE MATTER of the estate of LARRY MICHAEL O’NEILL UNDER
Part 27 and Rule 27.6 of the High Court Rules 2016
BETWEEN
JUDITH ANNE O’NEILL
Plaintiff
AND
DAVID MICHAEL O’NEILL
Defendant
CIV-2020-419-000126 IN THE MATTER
of an application under the Family Protection Act 1995 and an application
under Part 18 of the High Court Rules 2016
BETWEEN
DAVID MICHAEL O’NEILL, MARTIN TIMOTHY O’NEILL and PHILIPPA SUSAN DENNIS
Applicants
AND
JUDITH ANNE O’NEILL
Respondent
Hearing: 19 – 21 and 27 October 2020 Counsel:
PJ Dale QC and LT Meys for Plaintiff/Respondent PJ Morgan QC for Defendant/Applicants
Judgment:
13 November 2020
JUDGMENT OF DOWNS J
This judgment was delivered by me on Friday, 13 November 2020 at 11 am pursuant to r 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
O’NEILL v O’NEILL [2020] NZHC 2988 [13 November 2020]
Table of Contents
A will dispute [1]
Some dynamics [5]
Background [9]
Testamentary capacity [15]
Undue influence [40]
Analysis [49]
The claim under the Family Protection Act 1955 [67]
Analysis [73]
Conclusion [88]
Two evidence rulings during the trial [89]
Orders [93]
Costs [94]
A will dispute
[1] Disputes about wills can be bruising. Family members are often pitted against each other. Sometimes, everyone feels aggrieved. This case is no different. Larry O’Neill died 15 August 2016, aged 84. Larry has three adult children from his first marriage: David, Martin and Philippa. Larry and his first wife separated in 1979. Later that year, Larry and Judith commenced a relationship that endured for the 37 years until Larry’s death. The couple married in 1999.
[2] Larry was a very experienced solicitor. One of his practise areas was wills. Larry encouraged clients to update their wills every five years. Larry heeded his own advice; he made wills in 2002, 2007 and 2012.
[3] Larry and Judith were tenants in common of their Hamilton home, meaning, each owned a divisible half-share. Larry’s half-share is the only asset of significance in his estate. Larry’s 2002 will left that half-share to David, Martin and Philippa once Judith died. But, his later wills leave the half-share outright to Judith; she does not have a mere life interest as she did under the 2002 will. Therein lies the problem.
[4] David, Martin and Philippa learned of the later wills after Larry’s death. They say Larry lacked testamentary capacity when he made the 2012 will; and both of the
later wills are the product of Judith’s undue influence.1 Judith says Larry was mentally alert until his death and freely chose to leave her his half-share. David, Martin and Philippa say even if this is correct, Larry breached his moral duty to provide for them. They claim under the Family Protection Act 1955. Judith says Larry had good reasons for doing what he did, at least some of which he reduced to writing.
Some dynamics
[5] Much contextual evidence was…
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- Case
- [2020] NZHC 2988
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Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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