Public Trust v Di Somma

[2021] NZHC 3531

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001556

[2021] NZHC 3531

IN THE MATTER OF

the Estate of NINA ESTERNIA WILLSON also known as NINA BIANCA WILSON

BETWEEN

PUBLIC TRUST

Plaintiff

AND

VIRGINIA LOUISE DI SOMMA, CARIN JOHN WILSON, MILTON ANDREW WILSON and JANINA ROCHELLE POLANSKY

Defendants

Hearing:

On the papers

Counsel:

A Gilchrist for Plaintiff

No appearance by or on behalf of Defendants

Judgment:

17 December 2021

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 17 December 2021 at 12:45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel:            A Gilchrist, Southern Cross Chambers, Auckland

PUBLIC TRUST v DI SOMMA [2021] NZHC 3531 [17 December 2021]

[1]    Nina  Esternia  Wilson  (also  known  as  Nina   Bianca  Wilson),   died   on 27 September 2019. She was 100 years old. Two sons and two daughters survived her. The deceased left three wills – dated 2 June 2000, 22 February 2008 and 19 June 2008. The Public Trust is named as the executor and trustee of all three wills. The Public Trust now applies for an order granting probate of the deceased’s will dated   2 June 2000. The deceased’s children have been served with the proceeding. They have chosen not to take part in the proceeding which can accordingly be dealt with by way of formal proof.

Factual background

[2]    The Public Trust has applied for probate of the earliest of the three wills because of concerns about the deceased’s mental capacity when she made the two later wills in 2008. The death certificate notes the deceased’s cause of death as being “End Stage Alzheimers Dementia 3 Years”. Because of this cause of death, the Public Trust initiated enquiries about the deceased’s mental capacity when she made the two later wills in 2008.

[3]    On 27 July 2009, Dr Andrew Sidwell, a Consultant Geriatrician with the Canterbury District Health Board issued a Health Practitioners Certificate of Mental Incapacity for Enduring Power of Attorney in relation to Personal Care and Welfare in respect of the deceased. In his report, Dr Sidwell stated that on 27 July 2009 he assessed the deceased, the donor of the enduring power of attorney in relation to property dated 15 October 1999, to ascertain her mental capacity. In his opinion, the deceased was mentally incapable. She lacked capacity to foresee the consequences of decisions, specifically about her place of domicile, and had marked short term memory impairment.

[4]    A year earlier, on 6 June 2008, Lee Andrews, a Senior Occupational Therapist with the Older Persons Mental Health Community Team at Princess Margaret Hospital in Christchurch, completed a comprehensive report on the deceased following four home visits in March and April 2008 and undertaking a number of different assessments. Mr Andrews assessed the deceased as having a level of 4.4 on an assessment tool named Allen’s Cognitive Level Screen. He stated that level 4.4

indicated mild to moderate functional decline with significant deficits in abstract thinking abilities, increased difficulty with problem solving and with considering consequences. Abstract thought processes, including memory, judgment, reasoning and planning ahead, showed obvious impairments. Persons on level 4.4 have significant difficulty with reading, writing and calculating. Complex daily tasks (managing finances, job performance, driving, meal preparation, shopping, or following complex medication schedules) are performed with obvious difficulty or error. The inability to consider the needs of others is common as the person loses sight of the larger picture. Mr Andrews noted that the caregiver guideline for persons on level 4.4 recommended 24 hour supervision.

[5]    Mr Andrews also recorded advice from the deceased’s daughter that the deceased was no longer able to carryout the following activities: balance a cheque book, assemble business affairs or papers, play a game of skill or work on a hobby, keep track of current events, pay attention to, understand/discuss a TV show, book or magazine, remember appointments, family occasions and travel out of the neighbourhood/arrange to catch a bus. Mr Andrews’ conclusion was that, based on the assessment findings, the deceased was clearly struggling to manage a wide range of activities of daily living due to her cognitive and functional decline.

Discussion

[6]    I am of the view that the report from Mr Andrews is of considerable use in assessing the deceased’s mental capacity in 2008. That assessment shows the deceased struggling with a wide range of tasks, consistent with significant cognitive decline. That puts her testamentary capacity in question. There are, however, no such concerns in relation to the deceased’s will dated 2 June 2000. That is a relatively simple and straightforward will. There are no specific bequests and the residue of her estate is to be divided equally between her four children. Although the two subsequent wills did not vary greatly from the will dated 2 June 2000, I am satisfied on the basis of the evidence before the Court, to the requisite standard, that the deceased did lack testamentary capacity when she made her 2008 wills.

[7]    I therefore make an order granting probate in solemn form in respect of the will of Nina Esternia Wilson dated 2 June 2000.

Woolford J