Public Trust v Andrews

[2024] NZHC 1236

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-76

[2024] NZHC 1236

IN THE MATTER

of the Estate of Mervyn Stanley John Andrews

BETWEEN

PUBLIC TRUST as proposed Administrator or Executor of the Estate of Mervyn Stanley John Andrews

Applicant

AND

DESMOND CHARLES ARTHUR ANDREWS

First Respondent

MAURICE RICHARD MERVYN ANDREWS

Second Respondent

continued over

Hearing:

Further Submissions:

20 February 2024

29 February 2024

Appearances:

G M Cairns for Applicant

Judgment:

17 May 2024

JUDGMENT OF PRESTON J

This judgment was delivered by me on 17 May 2024 at    pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date……………

PUBLIC TRUST v ANDREWS [2024] NZHC 1236 [17 May 2024]

THERESA JOSEPHINE MARGARET MCKAY, STANLEY ROBERT MCKAY and
YBT NOMINEES LIMITED, as trustees of the MCKAY FAMILY TRUST

Third Respondents

DANIEL ROBERT MCKAY

Fourth Respondent

CAMERON JOHN MCKAY

Fifth Respondent

REBECCA HANNAH MCKAY

Sixth Respondent

Introduction

[1]                  Mervyn Stanley John Andrews (the deceased) died on or about 20 November 2021. The Public Trust as executor applies to the Court for a grant of probate in solemn form of the deceased’s last will, dated 5 July 2019 or, in the alternative, of his previous will dated 20 March 2009. The Public Trust is named as executor and trustee under both wills.

[2]                  The 2019 will provides for a gift of household goods including jewellery and watches to be shared equally between the deceased’s children Desmond Charles Arthur Andrews (Desmond), Maurice Richard Mervyn Andrews (Maurice) and Theresa Josephine Margaret McKay (Theresa). The residue of the estate is to be divided in four equal shares: between Desmond, Maurice and Theresa’s family trust (McKay Family Trust); and the remaining share to be divided equally between Theresa's three children Daniel Robert McKay, Cameron John McKay and Rebecca Hannah McKay.

[3]                  The 2009 will differs from the subsequent 2019 will in that the residue is left in three equal shares to Desmond, Maurice and the McKay Family Trust.

[4]                  The application was brought in solemn form as, although there is no dispute the deceased had testamentary capacity when he executed the 2009 will, some concerns had been raised about the deceased’s capacity when he executed the 2019 will.

[5]                  The proceedings were served on the respondents.1 No party filed a statement of defence or an appearance and the hearing was set down for formal proof.2

Background and retrospective certificate of testamentary capacity

[6]                  On 5 July 2019 Nicholas Roach, an associate trustee employed by the Public Trust took instructions from the deceased and witnessed the signing of his last will. The deceased died on or about 20 November 2021. On 9 December 2021 Maurice lodged a caveat over the estate.

[7]                  On 17 March 2022 Maurice through a solicitor wrote to Public Trust. The letter explained that Maurice was “surprised and concerned when he became aware of [the 2019 will] and, in particular was concerned to learn of the inclusion of the McKay grandchildren as beneficiaries”. It noted that the inclusion of three of the McKay grandchildren reduces Maurice’s share of the estate from 1/3 to 1/4.

[8]                  Further, the letter advised that Maurice considered the deceased lacked testamentary capacity when he made the 2019 will, for the following reasons:

(a)the deceased suffered from dementia at the time he executed the will;

(b)Dr Astrid Windfuhr, his GP had assessed his mental capacity for the purposes of activating his enduring powers of attorney in relation to property and personal care and welfare. Dr Windfuhr signed two certificates which certified the deceased as mentally incapable; and

1      Associate Judge Paulsen also directed that, as the deceased’s daughter Theresa McKay has an interest in her own right in the 2019 will she was to be personally served, also.

2      Following the formal proof hearing, the Court heard application as to costs on the application, from counsel for Public Trust and from the second respondent Mr Maurice Andrews. Mr Andrews had leave to file submissions and be heard as to costs, only: Order of Associate Judge Paulsen  18 August 2023.

(c)A diagnosis of “advanced old age dementia” implies that the deceased had been suffering from dementia for some period of time (in being in an advanced state).

[9]                  After receipt of the letter, the Public Trust obtained a retrospective assessment of testamentary capacity from Dr Windfuhr, a medical practitioner whose scope includes the assessment of mental capacity.   The deceased had been a patient of     Dr Windfuhr since 2006.

[10]              The assessment, dated 15 November 2022, advised Dr Windfuhr’s opinion that the deceased had testamentary capacity when he made his last will on 5 July 2019.

[11]              For reasons discussed below, it is convenient to set out the nature of the certificate in full. The retrospective assessment was completed by Dr Windfuhr on a standard form, as follows:

I [Dr Astrid Windfuhr] a medical practitioner … certify that [the deceased] was a patient of mine from 18/9/2006 …16 yrs.

I have been asked by Public Trust to make a retrospective assessment of the testamentary capacity of Mervyn Stanley John Andrews at the time he made his last [w]ill on 5th July 2019.

In my opinion as at 5th July 2019, Mervyn Stanley John Andrews:

·Would/ Would not have understood what a [w]ill is and what its consequences are.

·Would/ Would not have known the nature and extent of his/her assets and liabilities.

·Would/ Would not have known the names and relationships of his/her close relatives and would have been able to assess their claims to his/her estate.

·Was/was not free from any disorder of the mind that might distort feelings or judgements relevant to making a will.

*Please delete options above as required.

In my opinion Mervyn Stanley John Andrews had/ did not have testamentary capacity to make his will on 5th July 2019.

My scope of practice includes the assessment of mental capacity. DATED: [15/11/2022]

SIGNATURE [Signature of Dr Windfuhr]

[12]              The deleted portions upon the original document had been struck through by Dr Windfuhr by hand. As can be seen, one of the options above the final opinion paragraph was not marked by Dr Windfuhr.

[13]              On 25 November 2022 the Public Trust sent Dr Windfuhr’s retrospective assessment to Maurice, through his lawyer, together with the deceased’s medical records and other information which had been requested in the lawyer’s letter.

[14]              The Public Trust did not receive any further communications from Maurice Andrews’ lawyer, but Maurice personally continued to dispute the medical position and in December 2022 wrote to Public Trust advising that he did not intend to remove the caveat over the estate. Maurice later renewed the caveat.

[15]              The Public Trust subsequently filed application for probate in solemn form, putting both wills before the Court. It filed evidence in support from specialist trustee Kevin Louis and from Mr Roach. As Mr Louis explained:

Public Trust applies for probate in solemn form, so that Maurice is able to raise the issue of Mr Andrews capacity, which Public Trust understands is the basis for the caveat over the estate.

Public Trust takes a neutral position, but applies for probate of Mr Andrews will dated 5 July 2019. However, it is also the named executor also [sic] under the will dated 20 March 2009 and, in the event that the Court determines that the 5 July 2019 will is invalid for lack of testamentary capacity it will seek probate under that will, or as the Court otherwise directs.

[16]              Mr Louis in that affidavit also recorded that in June 2023 the Public Trust's lawyers had sought Dr Windfuhr’s comment as to why she did not delete out an option in part of the retrospective assessment certificate. Dr Windfuhr subsequently corrected that comment, advising the Public Trust that that part of her certificate should have indicated that the deceased "was not free from any disorder of the mind that might distort feelings or judgements relevant to making a will".

[17]              There was no change however to the doctor’s opinion that the deceased had mental capacity as at 5 July 2019 when he made his last will.

Confirmation of Dr Windfuhr’s opinion

[18]As noted, no party filed a statement of defence in the probate proceedings.

[19]              However, prior to the formal proof hearing, the Public Trust sought further clarification from Dr Windfuhr given the potential ambiguity arising from her advice noted in [11] above. Mr Louis filed an updated affidavit setting out correspondence between the Public Trust and the doctor. However, there was an apparent typographical error in the correspondence, relating to the date of the last will.

[20]              I granted leave for counsel to confirm the position. Mr Cairns for Public Trust subsequently by memorandum provided Dr Windfuhr’s written confirmation that, despite the deceased having a degree of old age dementia which may have impaired his judgement relevant to making his last will, she believes that the deceased held the requisite testamentary capacity at the time of executing his last will on 5 July 2019.

Discussion

[21]              The Public Trust puts both wills before the Court and properly adopts a neutral stance as to which should prevail.

[22]              The issue for the Court is whether the deceased had testamentary capacity at the time he made the 2019 will. Mr Cairns for Public Trust submits that the evidence establishes that, on the balance of probabilities, he did.

Legal principles: testamentary capacity

[23]              The principles relating to the Court’s assessment of testamentary capacity are well settled. To establish testamentary capacity, it must be shown that the will-maker:3

(a)Understands he or she is making a will and the effect of doing so;

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

(b)the extent of the property being disposed of;

(c)the moral claims to which he or she ought to give effect when making the testamentary disposition; and

(d)was free from any disorder of the mind that might distort feelings or judgment relevant to making a will.

[24]              Mental soundness is a question of degree.4 The mere existence of a delusion or partial unsoundness of the mind not affecting the general faculties and not operating on the mind of the will-maker regarding testamentary dispositions does not render the will-maker incapable of disposing of their property by will.5 In that event, the party propounding the will must show that at the time of its making, the testator was free from the delusion or its influences, or that it was of such a character that it could not reasonably be supposed to affect the disposition of the will-maker's property.

[25]              Testamentary capacity “does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all”.6 The will-maker's mind may be affected, but there may be enough mental capacity left to understand and make a sound assessment of all those things and circumstances which enter the nature of a rational, fair and just will.7 Further, if a will is rational on its face and has been properly executed, it is presumed to have been made by a person of competent understanding. However, if there are factors telling against that presumption, the Court must decide against the validity of the will unless the evidence, on the whole, is sufficient to establish that the will-maker was of sound mind when the will was signed.

4      Earles and others Dobbie's Probate and Administration Practice (6th ed, Wellington, LexisNexis, 2014) at [49.7.8].

5      Re White (dec'd) [1951] 1 NZLR 393 (CA).

6      Woodward v Smith [2009] NZCA 215 at [19]; paraphrasing the decision of the Court in Banks v Goodfellow 91870) LR 5 QB 549 at 565-8.

7 At [19].

[26]              Medical evidence will be given due weight. There is a clear difference between a medical practitioner providing a retrospective medical opinion based on medical records having not known the person at all, in comparison to a general medical practitioner who knew the person as a patient. Where the medical evidence is equivocal or the will-maker had a fluctuating level of capacity, the Court is entitled to place weight on the observations and views of the persons who took the will-maker's instructions.8 The Court will typically place greater reliance on the views of an experienced officer (professional) who had previous dealings with the will-maker. Conversely, the views of an inexperienced officer who had no prior dealings with the will-maker ought to carry less weight.9

Decision

[27]              Applying these principles, I weigh the following matters in considering whether, on the balance of probabilities, the deceased had testamentary capacity when he made the 2019 will.

[28]              First, although there was a potential ambiguity on the face of Dr Windfuhr’s retrospective assessment, her ultimate opinion expressed in the document was that the deceased had testamentary capacity on 5 July 2019. In preparation of the proceedings, Public Trust appropriately sought clarification of the omitted clause. While this was not finally addressed until shortly following the hearing, relevantly the doctor’s opinion as to capacity remained unchanged, notwithstanding the confirmation of the existence of the deceased’s condition of old-age dementia. I note that the deceased had attained 87 years at the time of the further will instructions to Public Trust and that at that time Dr Windfuhr had been treating him as a patient for some 13 years. He remained living in his own home, together with his son Maurice. Further, it appears from the medical notes to which Maurice referred in correspondence that the deceased’s old-age dementia progressed in the period proximate to his death, aged 90.

8      See generally, Woodward v Smith, above n 6; Public Trust v Dollimore [2018] NZHC 3316; Public Trust v White [2012] NZHC 230; Leppien v Public Trustee HC Nelson CP21/00, 26 July 2002.

9      See generally Public Trust v Atwool [2020] NZHC 1228.

[29]              This Court has held that dementia alone does not negate a finding of testamentary capacity.10 In Simpson v Kirkwood the deceased had lived with dementia for several years prior to her death. The Court found capacity established at the time of the last will having regard to the substantial similarity with two earlier wills, made before the dementia diagnosis. There was evidence of consistent intention and the will came as no surprise. The lawyer present at the signing of her last will had no concerns in respect to her capacity, describing her as "reasonably lucid" in a file note. While no case is on all fours, features of the case before me similarly tend to confirm the retrospective opinion the deceased had testamentary capacity on 5 July 2019.

[30]              First, a questionnaire was completed during the course of the attendance with Mr Roach at Public Trust on 5 July 2019. This document runs to 13 pages and, after addressing preliminary information such as address and personal details, records the deceased’s instructions in preparation of the will including the gifts under it to each of his children. It is evident that the deceased understood he was making a change to the residuary beneficiaries in his previous will and that this may result in the relevant grandchildren - Daniel Robert McKay, Cameron John McKay and Rebecca Hannah McKay - inheriting twice. He indicated as much in a note upon the questionnaire, recorded following confirmation that the deceased received an explanation in relation to the Family Protection Act 1955, as follows:

I have provided a ¼ share of my residuary estate to those of my grandchildren who have helped me a lot and go out of their way to help out. I understand these grandchildren may inherit twice, if their parent has died before me, but this is my wish.

I have made the age contingency for all of my grandchildren to be 30 years and I wish all of them to be able to use this prior to that age but only to purchase a property for their use.

[31]The note was formalised in a Statement to Accompany the will.

10     Simpson v Kirkwood [2019] NZHC 454; Public Trust v McGrail [2023] NZHC 1824.

[32]              Second, apart from the gift of household effects to his children, the difference between the deceased’s two wills primarily relates to the residuary beneficiaries. In the 2019 will, the residuary estate is to be divided equally in four shares, with the fourth share to be split equally between Theresa's three children. While this has a relatively significant impact on the residuary beneficiaries' share of the estate, I accept the change the deceased requested to the legacies is logical in light of the reason he gave for providing for the three named grandchildren.

[33]              Third, the Public Trust officer taking the deceased’s instructions, Mr Roach, did not seek a medical certificate regarding capacity at the time of the new will. While Mr Roach’s experience with the Public Trust at the time was only modest he had the benefit of having completed internal Public Trust training in respect to wills and how to take instructions. Perhaps unsurprisingly, Mr Roach now has no specific recollection of meeting the deceased. However, his usual practice at that time if he suspected any issues regarding a will-maker’s mental capacity was to request they provide a medical certificate from their doctor confirming testamentary capacity before proceeding to draft and execute the will. Mr Roach has reviewed his time sheet entries and he made no entries requesting a testamentary capacity certificate. He therefore believes that he did not suspect that the deceased may have had issues with his mental capacity at that time. Otherwise, he would have made a file note accordingly. I note that even had Mr Roach suspected that there was some level of capacity concern, he would have been obliged to proceed with dealing with the will instructions at that point in time.11 However, his omission to take any step to seek evidence of capacity supports his evidence that he had no concerns at the time.

[34]              Considering all these matters together, I am satisfied the evidence establishes the deceased had testamentary capacity when he made his 2019 will.

Result

[35]              I grant the application for probate in solemn form of the will of Mervyn Stanley John Andrews dated 5 July 2019. An order to that effect is made.

11     Sandman v McKay & Ors [2019] NZSC 41.

[36]              I received submissions in relation to costs from the Public Trust and from Maurice Andrews – given leave to appear for that purpose – and deal with that application by separate judgment.

………………………………………

Preston J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt Copy to: Mr Maurice Andrews