Public Trust v Coutts - [2021] NZHC 3620

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 Respondent

KEVIN STUART BIRDLING
Third Respondent

DONNA CHRISTINE CURTIS
Fourth Respondent

BARRY ALAN BIRDLING
Fifth Respondent

MARK 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.…

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 Coutts

Details

AGLC: Public Trust v Coutts [2021] NZHC 3620
Case: [2021] NZHC 3620
Decision Date: 23 December 2021

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide which of two wills, dated 2008 and 2017, should be admitted for probate. The applicant, Public Trust, argued there were doubts about whether the deceased, Aileen Agnes Birdling, had testamentary capacity when she executed the 2017 will. The respondents, Ms Birdling’s six children, did not oppose the application. The court needed to determine whether Ms Birdling had testamentary capacity when she executed the 2017 will and, if not, whether the 2008 will should be admitted for probate.

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