Public Trust v Atwool

[2020] NZHC 1228

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-000041

[2020] NZHC 1228

IN THE MATTER

An application of obtaining a grant of probate in solemn form in the Estate of BERNERS COURTENAY ATWOOL

BETWEEN

PUBLIC TRUST

Plaintiff

AND

MARY ELEANOR ATWOOL, NICOLA RUTH ATWOOL, ANTHONY

COURTENAY ATWOOL AND DAVID BERNERS ATWOOL
First Defendants

AND

JOANNA RACHEL MERWOOD- SALISBURY, KIM ELIZABETH WHITEMAN, LAURA JANE

SOUTHGATE, KELLEE MARIE ESLER, SARAH LEE O’LEARY AND TRACEY LOUISE ATWOOL

Second Defendants

Hearing:

On the papers

Appearances:

H M Scott for Plaintiff

No appearance for Defendants

Judgment:

4 June 2020

JUDGMENT OF MANDER J

This judgment was delivered by me on 4 June 2020 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 4 June 2020

PUBLIC TRUST v ATWOOL [2020] NZHC 1228 [4 June 2020]

[1]    Berners Courtenay Atwool died on 11 September 2017. The Public Trust, as executor, has applied for probate in solemn form of a will of Mr Atwool dated       22 January 2010 (the 2010 will) or, alternatively, his previous will dated 29 June 2007 (the 2007 will).1

[2]    The application must be in solemn form because doubt has been raised as to Mr Atwool’s testamentary capacity at the time he signed the 2010 will.

[3]    The defendants are Mr Atwool’s four children and their children, Mr Atwool’s grandchildren. They have all been served with the proceedings, including the affidavits filed in support of the application. None of the defendants have filed a statement of defence, nor taken any step in opposition to the Public Trust’s application.

Background facts

[4]    Under the 2007 will, Mr Atwool’s home was to be left  on  trust  to  the Public Trust for use by his wife, Pauline Atwool. If Mrs Atwool were to die or otherwise lose her entitlement, the home was to be divided equally between their four children. The residue of the estate was also left to Mrs Atwool. In the event that gift failed and Mrs Atwool pre-deceased her husband, the residue was to be divided into five shares, with one share going to each of the four children and the final share to be divided equally between Mr Atwool’s grandchildren.

[5]    Mr Atwool attended an appointment with Malcolm Williams, who was a trustee employed by the Public Trust, on 20 January 2010. He advised Mr Williams that he wished to update his will because his wife had died, and he wished to directly divide his estate equally between his four children. The 2010 will was to that effect and was signed two days later, with Mr Williams and another employee of the  Public Trust witnessing its execution.

[6]    The Public Trust applied for probate in common form for the 2010 will in October 2017. However, it was directed by the Court to apply in solemn form because there was a reference in Mr Atwool’s death certificate to him having suffered from

1      High Court Rules 2016, r 27.6.

dementia for eight years prior to his death. It was noted this gave rise to doubt as to whether Mr Atwool thoroughly understood the will and had full knowledge of its contents at the time it was signed. Evidence was required that Mr Atwool had full possession of his mental faculties at that time. The Public Trust subsequently sought evidence of Mr Atwool’s testamentary capacity at the time the 2010 will was executed.

[7]    Mr Atwool’s medical practitioner in 2010 was Dr Geoffrey Vause. At the request of the Public Trust he provided a letter based on medical notes he had made at the relevant time. Dr Vause stated that Mr Atwool was suffering from depression associated with both his Parkinson’s Disease and the recent death of his wife. When Dr Vause visited Mr Atwool on 1 December 2009, he found his “mental state to be reasonable” and that Mr Atwool was “well in touch with reality and issues”.   On   27 January 2010, Dr Vause had noted that Mr Atwool was “ruminating”, and had “anxiety problems”. He was “fixating on bladder and sleeping”. When he next saw Mr Atwool on 18 March 2010, Dr Vause noted his affect was a lot better and he was more animated, probably as a result of changes to his medication.

[8]    After reviewing his notes, Dr Vause advised he had “significant concern” as to Mr Atwool’s mental capacity at the relevant time, particularly for complex considerations that might be involved in drafting a will.

[9]    The Public Trust requested clarification from Dr Vause as to Mr Atwool’s testamentary capacity. In a further letter, Dr Vause stated that it was difficult to be definitive because Mr Atwool’s neurological and mental state was “fluctuant” at the time and he did not conduct any formal testing. While confirming that Mr Atwool had neurological and associated mental dysfunction, he was unable retrospectively to make an absolute statement about the degree to which that may have affected his testamentary capacity.

[10]   The Public Trust has also provided an affidavit from Mr Williams, who prepared and witnessed the 2010 will. Understandably, Mr Williams could not recall the meeting in detail, but stated that he would not have proceeded if he had detected any signs of dementia. The changes Mr Atwool wished to make appeared logical.  Mr Atwool had full knowledge of the contents of the will when he returned to sign it

and confirmed to Mr Williams that he thoroughly understood it. In Mr Williams’ opinion, Mr Atwool had the necessary testamentary capacity.

Application for probate in solemn form

[11]   The Public Trust seeks an order for probate in solemn form of the 2010 will, or alternatively, of the 2007 will. It properly takes a neutral stance regarding whether its application should succeed.

[12]   However, Mrs Scott, counsel for the Public Trust, submitted that the authorities support the affording of weight to the observations and views  of  experienced  Public Trust officers where as in the present situation, an individual is considered to have a possible fluctuating level of capacity and there is no contemporaneous focused medical assessment at the time the will was executed.

[13]   In the present case, it was submitted that regard could be had to Mr Williams’ experience as a Public Trust officer when weighing the reliance to be placed on his evidence. Counsel cited a number of cases where the Court, when assessing an issue of testamentary capacity, had taken into account the evidence of the officer who had dealt with the testator, especially where the officer had a number of years’ experience.2 Mr Williams had over 16 years’ experience with the Public Trust before he retired, and some 11 years at the time he dealt with Mr Atwool in January 2010.

Decision

[14]   In Public Trust v Dollimore, Simon France J summarised the principles of testamentary capacity as follows:3

[96]Capacity involves, and I here I blend Bishop and Woodward:⁴

(a)an understanding of what it means to be making a will;

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

2      Woodward v Smith [2009] NZCA 215; Public Trust v Dollimore [2018] NZHC 3316; Public Trust v White [2012] NZHC 230; Leppien v Public Trustee High Court Nelson CP21/00, 26 July 2002.

3      Public Trust v Dollimore, above n 2.

4      Bishop v O’Dea (1999) 18 FRNZ 492 (CA) at [4]; and Woodward v Smith, above n 2, at [19].

(c)an appreciation of any moral claims to which the testator should give effect; and

(d)the absence of any disorder of the mind which would poison affections or distort a testator’s sense of right.

[97]      The cases also make it clear this is not to be too exacting a standard. It is a requirement, as the Court of Appeal in Woodward says, to have an understanding of the task “in its simple form”.⁵ Finally, I note the final observation of Bishop that if there is general incapacity, it will be a more difficult task to establish a lucid moment. Reference is then made to the contents of the will, and whether they raise concerns.

[15]   Dr Vause’s “significant concern” as to Mr Atwool’s testamentary capacity in January 2010 gives proper reason to pause when considering whether probate should be granted. As a medical practitioner, and Mr Atwool’s general practitioner at the time until he moved to Dunedin in August 2011, his opinion must be given considerable weight.

[16]   However, while Dr Vause’s notes indicate a potential lack of capacity, they, as he himself acknowledges, cannot be  interpreted  as  an  unequivocal  finding  that Mr Atwool was not sufficiently competent. Dr Vause confirmed this by his refusal to make any definitive assessment.   In the month before the 2010 will was signed,     Dr Vause described Mr Atwool’s mental state as “reasonable and well in touch with reality and issues”. While that state appears to have declined somewhat by the end of January 2010, Dr Vause’s notes describe issues of anxiety and fixation, rather than any specific concern that Mr Atwool had lost mental capacity. By March 2010, Dr Vause had noticed a marked improvement in Mr Atwool’s affect and mood. It should also be noted that Mr Atwool remained alive for a further seven and a half years and no concern appears to have arisen during that time that he did not have capacity at the time the will was executed in January 2010.

[17]   While the apparent fluctuation in Mr Atwool’s mental state does raise the issue of testamentary capacity, I do not consider the concerns raised by Dr Vause are sufficient to support a finding that Mr Atwool did not understand the contents and effect of the 2010 will, or that there is any basis  to  suggest,  in  the  words  of Simon France J, that his affections had been “poisoned” or his “sense of right”

5 At [19].

distorted.6 Mr Williams’ evidence is helpful in this regard. Having worked as a Public Trustee officer for some 11 years at the time the 2010 will was prepared and signed, and some 16 years overall, Mr Williams has had ample experience in dealing with the elderly and of the need to establish capacity when preparing wills on their behalf.7 While Mr Williams’ evidence must be considered in light of the fact he is not a medical expert, I am satisfied he would not have proceeded with the will if he had any concerns about Mr Atwool’s testamentary capacity. His evidence was that he would not have proceeded with the meeting if he had detected any sign of dementia and that he must have been happy with Mr Atwool’s ability to give instructions about his will.

[18]   Furthermore, and as noted by Mr Williams, the changes Mr Atwool requested for his will were logical. The 2007 will left his estate to his wife and, in the event she predeceased him, to his children. Given she had recently passed away, he wished to update the will so his estate was left directly to his children in equal shares. All four of Mr Atwool’s children were given equal entitlements under the 2007 will, with the only difference being that under the earlier will, his grandchildren were as a group also to receive an equal share in the residue of the estate if the gift to Mrs Atwool failed. Under the 2010 will, the grandchildren would only receive a share if the gift to their parents failed. The 2010 amendments were sensible and logical and raise no concern about Mr Atwool’s ability to understand the content and effect of his will. Those changes effectively retained an equal and fair division of the estate between the    four branches of the family.

[19]   The present case has some similarities with the situation this Court dealt with in Public Trust v White.8 In that case, a number of witnesses including a Public Trust officer considered the deceased had testamentary capacity. This was challenged by evidence from a doctor who provided an opinion based on a review of medical records. Ultimately, the Court was not persuaded by the doctor’s conclusion. The Court referred to the Public Trust officer’s evidence as being “central” as she was the person who took the testator’s instructions and was present when the will was signed.9 It was noted that the officer had 12 years’ experience. However, it should be acknowledged

6      Public Trust v Dollimore, above n 2, at [96].

7      Woodward v Smith, above n 2, at [68].

8      Public Trust v White, above n 2.

9 At [33].

that the officer’s evidence was also consistent with a number of other witnesses (including two doctors and a nurse) that was taken into account in determining testamentary capacity.

[20]   Similarly, in Leppien v Public Trustee, this Court considered the evidence of two Public Trust officers in determining that the testator had capacity.10 Two officers, one with only some 12 months’ experience, but another with 13 years’ experience in the preparation of wills provided evidence. The Court accepted there was nothing observed by the least experienced employee to suggest a lack of capacity.11 Significantly, the other Public Trust officer, with his extensive experience was considered by the Court to be an important witness upon whom it was able to place reliance.

[21]   Having considered and compared the two wills, the information provided by Dr Vause from his notes made around the time of the 2010 will, and Mr Williams’ evidence, I am satisfied on the balance of probabilities that at the time the 2010 will was executed Mr Atwool had testamentary capacity.

Result

[22]   The  application   for   probate   in   solemn   form   of   the   will   of   Berners Courtenay Atwool dated 22 January 2010 is granted and an order to that effect is made.

Solicitors:

Galloway Cook Allan, Dunedin Anderson Lloyd, Dunedin

10     Leppien v Public Trustee, above 2.

11 At [102].