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…

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 Atwool

Details

AGLC: Public Trust v Atwool [2020] NZHC 1228
Case: [2020] NZHC 1228
Decision Date: 4 June 2020

CaseChat Overview and Summary

The High Court was asked to decide whether Berners Courtenay Atwool had testamentary capacity when he executed his will in 2010. The Public Trust sought an order for probate in solemn form of the 2010 will or, alternatively, of the 2007 will. The issue was whether Mr Atwool had the mental capacity to execute his will in 2010. The Court had to decide if Mr Atwool had testamentary capacity when he executed the 2010 will. This involved considering the evidence of Dr Geoffrey Vause, Mr Atwool's general practitioner, and Malcolm Williams, a Public Trust officer. Dr Vause expressed significant concerns about Mr Atwool's mental capacity, but could not make a definitive assessment. Mr Williams, however, had 11 years of experience at the time he prepared the will and was satisfied that Mr Atwool had testamentary capacity. The Court found that Mr Williams' experience and evidence were persuasive and that Mr Atwool had testamentary capacity when he executed the 2010 will. The Court granted the Public Trust's application for probate in solemn form of the 2010 will.

The Court ordered that the 2010 will of Berners Courtenay Atwool be granted probate in solemn form.

Orders