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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Public Trust v Andrews

Details

AGLC: Public Trust v Andrews [2024] NZHC 1236
Case: [2024] NZHC 1236
Decision Date: 17 May 2024

CaseChat Overview and Summary

The case before the High Court of New Zealand, Dunedin Registry, involves the application by the Public Trust to grant probate in solemn form of the last will of Mervyn Stanley John Andrews, dated 5 July 2019, or alternatively, his previous will dated 20 March 2009. The applicants seek to administer the estate as executors named in both wills. The application was brought in solemn form due to concerns raised about the deceased's capacity when he executed the 2019 will. The respondents, including Desmond Charles Arthur Andrews, Maurice Richard Mervyn Andrews, and others, did not file statements of defence or appearances.

The central legal issue the court had to decide was whether the deceased had testamentary capacity when he executed his last will on 5 July 2019. The court examined the retrospective assessment of Dr Astrid Windfuhr, who opined that the deceased had testamentary capacity despite his advanced old age dementia. The Public Trust also provided evidence from Mr Nicholas Roach, the officer who took the deceased's instructions for the will, who did not suspect any issues with the deceased's mental capacity at the time.

The court considered the well-established principles of testamentary capacity, including the requirement for the deceased to understand the nature and effect of making a will, the extent of the property being disposed of, the moral claims of relatives, and the absence of any disorder of the mind affecting the will-maker's judgment. The court also noted that dementia alone does not negate testamentary capacity if the deceased can still understand and make a rational disposition of their property. The court found that the deceased's understanding of the will, the logical nature of the changes made in the 2019 will, and the absence of any concerns from Mr Roach about the deceased's capacity all supported the conclusion that the deceased had testamentary capacity when he executed the will. Therefore, the court granted the application for probate in solemn form of the will dated 5 July 2019.

Orders