IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-1183
[2021] NZHC 3620
IN THE MATTER OF The Estate of AILEEN AGNES BIRDLING BETWEEN
PUBLIC TRUST
Applicant
AND
AILEEN ELIZABETH COUTTS
First Respondent
PAUL DOUGLAS BIRDLING
Second RespondentKEVIN STUART BIRDLING
Third RespondentDONNA CHRISTINE CURTIS
Fourth RespondentBARRY ALAN BIRDLING
Fifth RespondentMARK GREGORY BIRDLING
Sixth Respondent
On the papers Counsel:
C Stanley and N D Moore for the applicant
Judgment:
23 December 2021
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 23 December 2021 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
PUBLIC TRUST v COUTTS [2021] NZHC 3620 [23 December 2021]
[1] Aileen Agnes Birdling died on 16 September 2019. The Public Trust, as executor, has applied for probate in solemn form of a will of Ms Birdling dated 22 March 2017 (the 2017 will) or, alternatively, her previous will dated 5 February 2008 (the 2008 will).1
[2] The respondents are Ms Birdling’s six children. They are the beneficiaries of both wills. They have all been served with the proceedings, including the affidavits filed in support of the application. None of the respondents have filed a notice of opposition or statement of defence. They have not taken any steps in relation to the application. The application is to be dealt with on the papers by way of formal proof.
Background facts
[3]The assets of the estate have been valued at approximately $120,000.
[4] Under the 2008 will, Ms Birdling’s estate was to be divided in three ways. First, all her personal effects, including jewellery and watches, were left to her daughter Aileen Elizabeth Coutts (Aileen). Second, a loan from Aileen and her husband, Desmond Coutts, of $12,000 (or any part still owing) would be repaid. A gift of $500 was also provided for in lieu of interest if the loan was still owing at the time of death. Finally, the residue of the estate was to be divided equally between each of Ms Birdling’s surviving children.
[5] The 2017 will provided for a different distribution of the assets of the estate. First, Ms Birdling’s son Paul Douglas Birdling (Paul) and Aileen would each receive a cash gift of $30,000. All personal effects, including jewellery and watches, were to go to another daughter, Donna Christine Curtis (Donna). The residue of the estate was to be divided equally among four of her six children. They were Donna, Kevin Stuart Birdling (Kevin), Barry Alan Birdling (Barry) and Mark Gregory Birdling (Mark).
[6] There was also a draft will prepared in 2014 (the draft 2014 will). It was prepared on the basis of instructions from Ms Birdling but never executed. The terms
1 High Court Rules 2016, r 27.6.
of this draft will provided for her personal effects, including jewellery and watches, to be left to Aileen.…
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- AGLC
- Public Trust v Coutts [2021] NZHC 3620
- Case
- [2021] NZHC 3620
- Decision Date
CaseChat Overview and Summary
The court examined the medical history and diagnosis of Ms Birdling. She was diagnosed with moderate dementia in April 2016, eleven months before executing the 2017 will. Dr. Gary Cheung, a medical expert, concluded that she lacked the capacity to make the 2017 will based on her condition at the time. The court found that the evidence strongly supported the conclusion that Ms Birdling did not have the necessary capacity to make the 2017 will. Although there was some evidence suggesting she might have had capacity in 2008, the court was satisfied that there was no tenable issue regarding her capacity at that time. The 2008 will was therefore admitted for probate.
The court granted the application for probate in solemn form of the 2008 will, dated 5 February 2008, and made an order to that effect.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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