Public Trust

[2025] NZHC 2151

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2025-454-37

[2025] NZHC 2151

UNDER

Part 19 and Part 27 of the High Court Rules 2016

IN THE MATTER OF

an originating application by PUBLIC TRUST, of Wellington, an autonomous

Crown entity established under the Public Trust Act 2001, as executor of the estate of WILLIAM EDWARD STANLEY

ROBINSON, for a grant of probate in solemn form

On the papers:
Counsel:	G M Cairns for Applicant
Judgment:	1 August 2025

JUDGMENT OF GRAU J

Introduction

[1]    The issue in this proceeding is whether a grant of probate in solemn form should be made in respect of the will of William  Edward Stanley Robinson dated     1 December 2006 (the 2006 will).1 In the alternative, Public Trust seeks an order that probate be granted in solemn form  in respect of Mr Robinson’s earlier will dated     5 December 2001 (the 2001 will). Probate in solemn form is sought as some uncertainty exists regarding Mr Robinson’s testamentary capacity at the time the 2006 will was executed, when Mr Robinson was diagnosed with dementia two years earlier.

1      High Court Rules 2016, r 27.6.

PUBLIC TRUST [2025] NZHC 2151 [1 August 2025]

[2]    On 16 April 2024, leave was granted to commence the proceeding as an originating application.2 The proceedings have been served on all potentially affected parties—being Mr Robinson’s three children, who are the beneficiaries of his will and the Public Trust in its capacity as the executor of Mr Robinson’s wife’s estate. For the reasons set out below, I am satisfied it is appropriate to grant probate of the 2001 will in solemn form.

Background

[3]    Mr Robinson executed his last will on 1 December 2006. He died on 31 March 2013 and was survived by his wife, Betty Robinson (Betty) and their three adult children.

[4]    The 2006 will appointed Public Trust as the executor of Mr Robinson’s estate. Public Trust elected to administer Mr Robinson’s estate in May 2013.3 At this time, the estate assets and liabilities comprised the following:

(a)a half-share interest in a property at 18 Hereford Street, Levin (the Levin property) owned as tenants in common in equal shares with Betty;

(b)cash reserves of around $12,000; and

(c)estate expenses, including funeral and administration fees.

[5]    Public Trust administered Mr Robinson’s estate in accordance with the 2006 will. The net residuary estate of $3434.07 was distributed to Betty. Betty’s life interest in the Levin property expired when she died in July 2024. Betty’s will had appointed Public Trust (in a separate capacity) as executor and trustee, and provided for her estate to be divided equally between the children. As executor of Betty’s estate Public Trust marketed the Levin property for sale and entered into an agreement for its sale and purchase. However, before entering into that agreement Public Trust had, in error, revoked its election to administer. To enable the sale and settlement of the Levin

2      Public Trust [2025] NZHC 938 at [27].

3      Public Trust Act 2001, s 93.

property to proceed, Public Trust was appointed as the temporary administrator in April 2024.4

[6]    Alongside the application for appointment as temporary administrator, Public Trust  also  sought  probate  in  solemn  form  to  finalise  the   administration  of   Mr Robinson’s estate. Public Trust’s concerns about Mr Robinson’s testamentary capacity had arisen when it was observed that “dementia” was listed in Mr Robinson’s death certificate as a cause of his death. Upon further inquiry into Mr Robinson’s medical records, Public Trust became aware that Mr Robinson had been diagnosed with dementia in 2004.

The 2006 will

[7]    It appears that no concerns were raised regarding Mr Robinson’s testamentary capacity when the 2006 will was executed. Mr Robinson provided instructions for his will on 24 November 2006 and was assisted in doing so by a Public Trust advisor. The advisor prepared a will consultation questionnaire with Mr Robinson which detailed his family circumstances, assets, debts and will instructions. Mr Robinson then returned to the Public Trust office to execute the will on 1 December 2006.

[8]    The 2006 will did not depart significantly from Mr Robinson’s previous will executed in 2001. Both wills provided a life interest for Betty in the Levin property. In the 2001 will, Betty was to hold the residuary estate on trust for the beneficiaries, with income payable to her. The Public Trust was able to access capital to ensure Betty’s “comfort and wellbeing.” In contrast, in the 2006 will the residuary estate passed to Betty as an absolute gift.

[9]    In the 2001 will, Mr Robinson made his wishes apparent that access to capital should be prioritised to ensure Betty’s comfort and wellbeing, above the preservation of  the  estate  capital.  As  above,  in  the  early  stages  of  the  administration  of  Mr Robinson’s estate, Betty received $3,434.07 as the residuary estate, after around

$12,000 was applied to estate expenses. Public Trust notes that, considering the costs of administration, it would be “uneconomic” to administer a $3,434.07 trust fund. It

4      Administration Act 1969, s 7.

considers that if the estate had been administered under the 2001 will, it would likely have exercised its discretion to distribute the $3,434.07 residuary to Betty to promote her comfort and wellbeing in the decade following Mr Robinson’s death. As a result, Public Trust considers that the practical outcome of the estate administration under either will would likely be the same.

Mr Robinson’s cognitive decline

[10]   As noted above, in 2004 Mr Robinson was diagnosed with dementia. In early October 2006, Mr Robinson was referred to a psychogeriatrician, following a visit with his GP, Dr Irving. At that stage, Betty had obtained an enduring power of attorney and she considered Mr Robinson’s memory loss to be “more than minor”. Testing indicated a mild cognitive impairment. Dr Irving considered that Mr Robinson appeared to have significant dementia.

[11]   The psychogeriatrician attended on Mr Robinson in mid-October 2006. He reported that Mr Robinson struggled with short-term memory but maintained good long-term memory. At 85, Mr Robinson was managing his own personal care and living independently with Betty. Further cognitive testing indicated moderate cognitive impairment. However, a test for executive functioning was in the normal range. No further follow-up appointments were arranged.

[12]   After that time, Betty continued to care for Mr Robinson who had no further contact with his GP until April 2010 when the GP’s notes recorded that Mr Robinson had dementia. Betty had advised she was coping and there was no need for extra or respite care. By April 2011, Mr Robinson’s dementia had become well advanced and shortly after that time he went into care.

Legal framework

Probate in solemn form

[13]   Applications for probate in solemn form are made pursuant to r 27.6 of the High Court Rules 2016 when a will-maker’s competency or testamentary capacity is challenged. The Court may only grant probate in solemn form if it is satisfied that the

testator had capacity and that the will has otherwise been properly made. Probate in solemn form can then only be recalled where the grant of probate has been fraudulently obtained, or a subsequent will comes to light.

Testamentary capacity

[14]   The long-established common law test for testamentary capacity was outlined in Banks v Goodfellow as follows:5

It is essential … that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.

[15]   Although these elements of testamentary capacity remain unchanged, they have since been summarised in more modern terms by the Court of Appeal in Woodward v Smith as requiring that the will-maker understood, at the time of the will’s execution:6

(a)that they are making a will, and the effect of doing so;

(b)the extent of the estate and therefore the property that can be disposed of in their wills;

(c)those who have moral claims on the estate to which they ought to give effect; and

(d)that this understanding must not be impaired by any disorder of the mind or delusions.

[16]   Once doubt as to testamentary capacity is raised, the party seeking probate must demonstrate that at the time of making the will, the testator retained the requisite mental capacity.7 Dementia alone is insufficient to disprove testamentary capacity.8

[17]   In Woodward v Smith, the Court of Appeal also confirmed that testamentary capacity “does not require a sound and disposing mind and memory of the highest

5      Banks v Goodfellow (1870) LR 5 QB 549 at 565.

6      Woodward v Smith [2009] NZCA 215 at [19], summarising Banks v Goodfellow.

7      Peters v Morris CA 99/85, 19 May 1987.

8      Re: Estate of Luckie [2024] NZHC 1365 at [16].

degree”.9 Testators may suffer from impairment but still maintain sufficient understanding of relevant matters to retain testamentary capacity.10 An individual may also be mentally incapable for the purposes of an enduring power of attorney, but still retain testamentary capacity.11

Discussion

[18]   The issue for determination is whether Mr Robinson’s impairment was such that he did not have the requisite level of testamentary capacity when he executed his 2006 will. I must be satisfied on the balance of probabilities that Mr Robinson understood what a will is, generally understood his estate, appreciated the claims to which he ought to give effect and was of sound mind.12

[19]   The 2006 will is, on its face, a rational will which provided for a life interest and income for Betty. Upon expiry of that life interest, the 2006 will provided, just as the 2001 will had done, for the Levin property to be distributed  equally  between  Mr Robinson’s three children. The change that was made in the 2006 will, for Betty to receive the residuary  estate outright,  was  a rational  one given the decrease in  Mr Robinson’s cash reserves since 2001. Although the rationality of the will can be taken into account when assessing capacity, the central focus is the rationality of the will-maker, rather than the rationality of the will-maker’s choices.13 I must be satisfied that Mr Robinson had an adequate understanding of all the matters in his will when he signed the will.

[20]   Medical evidence will be given due weight.14 The Court does not have the benefit of a specific medical examination to test Mr Robinson’s mind, memory and understanding as to his estate in December 2006.15 However, there are medical records from October 2006, around six weeks prior to the will’s execution. As above,

9      Woodward v Smith [2009] NZCA 215 at [19].

10     Re White (dec’d) [1951] 1 NZLR 391 (CA). Woodward v Smith [2009] NZCA 215 at [10].

11     Re: Estate of Lawrence [2022] NHZC 558 at [54]. Protection of Personal and Property Rights Act 1988, s 102.

12     Woodward v Smith [2009] NZCA 215 at [19] summarising Banks v Goodfellow (1870) LR 5 QB 549 at 565.

13     Woodward v Smith HC Napier CIV-2004-441-706, 8 February 2008 at [103]. Peters v Morris CA 99/85, 19 May 1987.

14     Simpson v Kirkwood [2019] NZHC 454.

15     Re: Estate of Luckie [2024] NZHC 1365 at [16].

Dr Irving noted on 2 October 2006 that Mr Robinson appeared to have “significant dementia”. A couple of weeks later, Dr Simons assessed that Mr Robinson maintained normal executive function, despite moderate cognitive impairment. In Dr Simons’ view, Mr Robinson had “relatively good executive function” but “very bad short-term memory”.

[21]   In the event that the medical evidence is ambiguous, the Court is entitled to place weight on the observations and views of the persons who took the will-maker’s instructions.16 The Public Trust advisor who took Mr Robinson’s instructions is no longer employed at Public Trust. Although the advisor filled out the will questionnaire with Mr Robinson in November 2006, the Court does not have the benefit of any observations as to Mr Robinson’s testamentary capacity. There are no records suggesting that Public Trust made any enquiries into Mr Robinson’s capacity, nor are there any records indicating any concerns regarding his capacity.

[22]   The evidence about Mr Robinson’s capacity in December 2006 is similarly sparse. Although there is evidence of a significant decline in Mr Robinson’s mental functioning in the years that followed, those medical records are not relevant to understanding Mr Robinson’s capacity in December 2006.

[23]   The medical evidence from 2006 is therefore equivocal. Mr Robinson was assessed to have moderate cognitive impairment, but normal executive function whilst also suffering from “significant dementia”. At the same time, Mr Robinson continued to live independently alongside Betty, and he enjoyed a range of hobbies. It is therefore difficult to ascertain from the medical records the extent of Mr Robinson’s understanding that he was making a new will, the effect of doing so and the extent of his estate in December 2006.

[24]   Whilst there is no evidence to cast serious doubt over Mr Robinson’s testamentary capacity at the time the 2006 will was executed, there is also a lack of evidence affirming Mr Robinson’s capacity at the relevant time. I am simply left with the medical notes from October 2006 which indicate moderate cognitive impairment,

16     Re: Estate of Luckie [2024] NZHC 1365 at [17]; Public Trust v Dollimore [2018] NZHC 3316;

Public Trust v White [2012] NZHC 230.

but normal executive function and a standardised will questionnaire filled out by the public trust advisor. I acknowledge that Mr Robinson may well have understood fully the contents and effect of the 2006 will. However, there is also no evidence that would establish Mr Robinson adequately understood the provisions of the will.

[25]   I note that Public Trust, as the applicant, bears the onus of establishing that Mr Robinson had testamentary capacity when the 2006 will was executed.17 Given the absence of positive evidence, I cannot be satisfied on the balance of probabilities that Mr Robinson had the requisite testamentary capacity at the time the 2006 will was executed. As a result, the 2001 will, which was made when no issue as to capacity arose, must be the will that is admitted to probate.

[26]   The decision to grant probate in solemn form in respect of the 2001 will cannot be said to cause any injustice. The dispositions in both wills are uncontested and there is no opposition to the grant of probate by any of the beneficiaries. Public Trust has maintained an appropriately neutral stance in the proceeding. Further, Mr Robinson’s updated 2006 will was not a significant departure from his previous 2001 will. Public Trust has acknowledged that the administration of the estate would be unlikely to differ in practice under either will.

Result

[27]I make a grant of probate in solemn form of the will dated 5 December 2001.

Grau J

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Applicant

17     Woodward v Smith HC Napier CIV-2004-441-706, 8 February 2008 at [10]; Public Trustee v Bick

[1973] 1 NZLR 301; Peters v Morris 19/5/87, CA99185.