Public Trust v Dollimore
[2018] NZHC 3316
•14 December 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV 2016-485-548
[2018] NZHC 3316
BETWEEN PUBLIC TRUST
Plaintiff
AND
ANNA DEANE DOLLIMORE
First Defendant
AND
MICHELLE PATRICIA SOWMAN
Second Defendant
Hearing: 12-16 November 2018 Counsel:
J O Upton QC for Plaintiff
A J D Bamford and L S B Acland for First Defendant A Douglass and A C Crehan for Second Defendant
Judgment:
14 December 2018
JUDGMENT OF SIMON FRANCE J
Introduction
[1] At issue is the validity of a will executed by the late Ms Annette Dollimore in January 2010. The issues are testamentary capacity and undue influence. The legal context is unusual.
[2] Ms Dollimore made wills in February 2009 and January 2010. On each occasion Public Trust took the instructions, prepared the will and attended on its execution. Under each will Public Trust is the executor. Following Ms Dollimore’s death in 2015, Public Trust came into information which caused it to doubt whether Ms Dollimore had testamentary capacity in 2010. Accordingly, it has filed these proceedings seeking to have the earlier 2009 will admitted to probate, and a declaration that the 2010 will is invalid.
PUBLIC TRUST v DOLLIMORE [2018] NZHC 3316 [14 December 2018]
[3] The second defendant, Mrs Michelle Sowman, is critical of this approach arguing that the obligation of Public Trust is to place both wills before the Court and otherwise be neutral. Mrs Sowman is the primary beneficiary of the changes between the two wills. Under the 2009 will she personally takes nothing. Under the 2010 will she receives half of the estate. Mrs Sowman has counterclaimed seeking a declaration as to the validity of the 2010 will.
[4] Public Trust in its pleading alleges incapacity and undue influence. It has, however, advanced only testamentary capacity. The first defendant, Ms Anna Dollimore, is a great niece of the testator. She represents the generation who were the primary beneficiaries under the 2009 will and who are largely ignored under the 2010 will. The first defendant has admitted the Public Trust’s pleading on both incapacity and undue influence. The carriage of that latter argument has rested with the first defendant.
[5] The parties are agreed that the correctness of Public Trust’s approach is a matter that is best left to the costs context. I accede to that and proceed to resolve the case as presented.
[6] Finally, I note a pleadings point. The second defendant counter-claimed alleging the 2010 will was valid and seeking a declaration to that effect. Whilst the plaintiff filed a defence to the counterclaim, the first defendant did not. Ms Douglass contends the first defendant must be taken to have accepted the counterclaim. However, there is no practical merit to the point. First, the first defendant has already pleaded, by its defence to the plaintiff’s claim, that the 2010 will was the product of undue influence and signed by a person lacking capacity. Second, the plaintiff has filed a defence and resolution of the case between the plaintiff and second defendant must produce an outcome that applies equally between the first defendant and second defendant. The 2010 will is either valid or it is not.
Relevant law
Testamentary incapacity
[7] I adopt the following statement from Woodward v Smith, noting the principles were recently affirmed in Loosley v Powell where the Court observed they were guiding propositions rather than a formula.1 The Woodward passage reads:2
(1)Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.
(2)It is essential to the exercise of such a power that a testator:
[i]understands the nature of the act and its effects; and also the extent of the property of which he is disposing;
[ii]is able to comprehend and appreciate the claims to which he ought to give effect;
[iii]be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
(3)Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But:
[i]though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.
[ii]it is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.
(4)It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
1 Woodward v Smith [2009] NZCA 215; Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19].
2 Woodward, above n 1, at [19].
(5)In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
(6)A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
(7)Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all.
(8)Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.
(9)But if that standard is not met, he will lack capacity.
[8] On several occasions during the hearing, the so-called presumption of capacity, and the burden of proof were raised. This focus no doubt reflects a recognition that the case could be seen as finely balanced. It is accordingly convenient to cite a statement of the principles as given by Tipping J in Bishop v O’Dea.3 The last two paragraphs are repetitive of Woodward, but helpful to the issues in the present case:
[1]In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity: Re White [1951] NZLR 393 (CA) and Peters v Morris (CA99/85: judgment 19 May 1987).
[2]If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have testamentary capacity rests on those who seek probate of the will: Public Trustee v Bick [1973] 1 NZLR 301 and Peters v Morris (supra).
3 Bishop v O’Dea CA 120/99, 20 October 1999 at [7].
[3]That onus must be discharged on the balance of probabilities: Watkins v Public Trustee [1960] NZLR 326 (CA). Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.
[4]In order to establish capacity, when in issue, those seeking probate must demonstrate the maker of the will had sufficient understanding of three things:
(a)that he or she was making a will and the effect of doing so (“the nature of the act and its effects”)
(b)the extent of the property being disposed of
(c)the moral claims to which he or she ought to give effect when making the testamentary dispositions.
These three matters derive from the leading authority of Banks v Goodfellow (1870) LR 5 QB 549 as cited by this Court in Ranby v Hooker (Court of Appeal, Wellington, CA 172/96, 16 September 1997) and in Peters v Morris (supra).
[5]If incapacity before the making of the will has been established, those seeking probate must show the will was made after recovery or during a lucid interval. In such a case the will is regarded with particular distrust and there is, in the first instance, a strong presumption against it, particularly if it displays lack of moral responsibility in the nature of the dispositions: 4 Halsbury’s Laws of England, Vol 17 at para 904.
Undue influence
[9] The first defendant identified extracts from two cases as representing the relevant law for undue influence. The second defendant similarly relied upon the first passage which is from Re Dudley (deceased):4
(a)The key question is whether, because of extraneous pressure from others, the will-maker has signed a will contrary to his or her own wishes.
(b)Persuasion which has left the final choice to the will-maker is not undue influence. Where there is evidence of strong influence or pressure, the Court will approach the question of the will-maker’s own wishes with suspicion. However, if satisfied that the will-maker’s wishes have not been overborne, and that in the end he or she wanted the will in that form, the Court must uphold the will. In those circumstances the ultimate source of the will is not the external pressures but the exercise of the will-maker’s own free judgment.
4 Re Dudley HC Auckland P1042/92, 14 May 1993 at 11–12. These passages were cited in Mahon v Mahon [2016] NZCA 642 at [14].
(c)The onus of proof lies upon the proponent of undue influence. However direct evidence of undue influence is not to be expected. These cases usually turn upon the strength of the circumstantial evidence. The question is whether from all the surrounding circumstances, with particular emphasis upon the result of the will and the circumstances in which it was actually executed, undue influence is to be inferred.
(d)For this purpose all the circumstances bearing directly or indirectly upon the free will of the will-maker at the time of execution are relevant. These include illness, pain and suffering, physical weakness and mental deterioration falling short of testamentary incapacity. They also include dependency upon others in legal, business, social, medical and/or domestic matters. One should view with special care any powerful need, obligation, or vulnerability on the part of the deceased which others might be in a position to exploit.
(e)However, it is not enough to show that others had the means and opportunity to unduly influence the deceased and that there has been a recent testamentary disposition in their favour. The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.
[10]The second extract is from Norton v Carey:5
Influence will be “undue” if shown to have precluded “independent and informed judgment”: Lloyds Bank v Bundy at 342 per Sir Eric Sachs; Zamet v Hyman [1961] 1 WLR 1442, at 1446 per Lord Evershed MR; Bank of Credit and Commerce v Aboody at 968. Influence is “undue” if it operates to deprive the person influenced of independent and informed judgment irrespective of the motives of the person possessing the influence.
What is undue is necessarily a question of degree and will turn on all the circumstances. In the case of some relationships (particularly those fiduciary in character) the circumstance of personal benefit without independent advice may be strong evidence of undue influence: see the discussion drawing on the cases where fiduciary duties are owed in CIBC Mortgages plc v Pitt at 209 per Lord Browne-Wilkinson. So too, an otherwise unexpected outcome may be powerful evidence from which influence which is undue can be inferred in the absence of other explanation. In cases where a disposition is to a family member something more may be required. If undue influence is established, however, clear disadvantage or unfairness in result is not required to be shown: CIBC Mortgages plc v Pitt.
What has to be proved in cases of actual undue influence is the converse of that by which in cases of presumed undue influence a defendant can rebut the presumption. It is for the plaintiff to show that the transaction was not “the result of the free exercise of independent will”: (Inche Noriah v Sheik Allie Bin Omar) at 135 per Lord Hailsham LC.
5 Norton v Carey HC Auckland M191/95, 1 July 1996 at 54–55.
All the circumstances in which the will was made are relevant in establishing the fact of such influence. They include those which in the case of inter vivos dispositions would give rise to presumption. …
Background
[11] Ms Dollimore gave instructions to Public Trust on 22 January 2010 and executed the will on 26 January 2010. On both dates, she was a resident of a dementia facility in Nelson. Dementia had first been diagnosed in November 2009. The Public Trust officer who took the instructions was unaware of the dementia. No assessment of capacity beyond that inherent in taking will instructions was undertaken on either day.
[12] Ms Dollimore had lived on her own in Wellington until November 2009. She never married, and had no children. Following the diagnosis of dementia, it was agreed she would move to a retirement facility in Nelson, where a large proportion of the wider Dollimore family lived. An analysis of the events surrounding the making of the will conveniently divides into three time periods, the first of which covers Ms Dollimore’s shift to Nelson on 28 November 2009, and her first few weeks in Nelson. The focus here is on observations of her physical and mental health, and the testamentary wishes she was expressing. The second period is from early January 2010 through to the time immediately before her signing the will, which is the period which most raises doubts about capacity. The third period covers the events with Public Trust. Along the way some factual disputes will be resolved. Also, some factual matters need to be covered that are relevant more to the undue influence claim than the testamentary capacity issue.
[13] By way of background to the undue influence claim, from the time of the assessment of dementia, Mrs Michelle Sowman, the second defendant, assumed responsibility for Ms Dollimore’s care. Enduring Powers of Attorney were executed in her favour and generally Mrs Sowman did all that was needed to help Ms Dollimore. Within what appears now a very divided family, it remains common ground that Mrs Sowman was very caring and did everything she could for her aunt who needed that sort of help from someone. However, the undue influence claim stems from this very relationship with Ms Dollimore. When Ms Dollimore made a new will in 2010, she altered the previous dispositions to the family such that Mrs Sowman went from
getting nothing in 2009 to being left half the estate in 2010. The period of alleged influence would seem to be from mid-November 2009 to the giving of new will instructions on 22 January 2010.
Events up to 10 January 2010
[14] In 2009, Ms Dollimore was a single woman aged 73. She had been living in a flat she owned in Karori, Wellington. She was self-sufficient, and had a number of investments managed by a financial adviser and friend, Mrs Judy Penlington. Ms Dollimore had been a university teacher and was well educated.
[15] In August 2009, Ms Dollimore’s brother visited from Canada. He was concerned about Ms Dollimore’s condition, initiated contact with her doctor and as a consequence of that, a formal needs assessment was undertaken. Mrs Penlington advises that she had been concerned for some time prior to August. She describes a deterioration in Ms Dollimore over the preceding two years. Over that period initial arrangements between them had changed because Ms Dollimore could no longer get herself to Mrs Penlington’s premises. Accordingly, Mrs Penlington now visited Ms Dollimore. She felt Ms Dollimore over that time was becoming more “odd and irrational”. Mrs Penlington’s last visit was in August 2009, at the same time as Ms Dollimore’s brother was over from Canada. Mrs Penlington considered Ms Dollimore then to be particularly bad, not lucid and with a poor ability to recall.
[16] In November 2009 Dr Duncan, a psychiatrist with expertise in the care of older persons, visited Ms Dollimore to assess her. The purpose of these assessments is to gauge the capacity of the person and whether they can live at home, or need to move to a facility of some sort. Present were Ms Judy Harvey, a long-time friend of Ms Dollimore, and Michelle Sowman. Mrs Sowman had been asked to attend by Ms Dollimore’s brother who had telephoned her in advance of the assessment.
[17] A Mini Mental State Examination (MMSE) produced a score of 21/30. Dr Duncan considered Ms Dollimore had dementia and she needed to be entered into the care system. He felt, however, that initially she should have the opportunity to remain at home with support. It was noted Ms Dollimore seemed not to be eating well
and had lost considerable weight. When she arrived in Nelson a short time after, Ms Dollimore was frail and weighed only 42 kg.
[18] It is relevant to note at this point that Dr Duncan had obviously been able to converse with Ms Dollimore. As is not uncommon her long-term memory was better than her short-term recall. The primary concern at that time seemed to be around her level of self-care. No doubt there was a recognition that the presence of a dementia meant matters would only progress, at whatever pace, in one direction. This was another reason for entering Ms Dolliman into the system. Mrs Sowman was advised it could not be known what the rate of decline would be, so Ms Dollimore needed to get her affairs in order. The purpose of the home support at this stage, however, was to ensure she did things like eat a daily meal.
[19] Subsequent to the meeting Mrs Sowman discussed options with Ms Dollimore. The choices appeared to be remaining where she was, or moving to a retirement home either in Wellington or Nelson. The reason for Nelson was that it was the primary area of residence for the Dollimore family, although obviously not all members of the family still resided there. Mrs Sowman says that, to her surprise, Ms Dollimore chose Nelson.
[20] The onus then fell on Mrs Sowman and her husband to make that happen. This required finding a suitable retirement home in Nelson, then assisting Mrs Dollimore to move, and then selling her house in Wellington. It is clear Ms Dollimore could not manage this on her own. As well as a compromised mental health, she had become very frail.
[21] Mrs Sowman and her husband were both working full time so had to fit in these tasks as best they could. The focus was on finding Nelson accommodation but also arranging moving furniture and effects. Initially the latter seemed to be a road block because movers were fully booked. However, at short notice an option came up and so Ms Dollimore moved at the end of November. Mr and Mrs Sowman drove to Wellington, packed up personal effects into their car, put Ms Dollimore on a plane, and themselves drove back to Nelson.
[22] Ms Dollimore was met at the airport by her sister-in-law, Valerie Dollimore. She gave evidence for the plaintiff. The idea was that Ms Dollimore and Valerie would stay at the Sowmans’ house until they got back and then Ms Dollimore could move to the retirement home that had been selected.
[23] Valerie Dollimore says Ms Dollimore was very frail when she arrived. She describes on one occasion over the period Ms Dollimore coming into the kitchen saying that the dress she was carrying did not fit anymore. It was in fact Mrs Sowman’s wedding dress.
[24] A retirement unit at a local facility named Kensington Court had been identified as suitable. That did not occur. Memories in relation to why vary between Valerie Dollimore and Mrs Sowman. I prefer Mrs Sowman’s evidence in these situations. It was she who did all the leg work for Ms Dollimore and was most on top of it all. She generally impressed me with her recall. In noting this, I have not overlooked that there are claims of undue influence against her. Also, that she is the primary beneficiary of the last will and that, as Mr Upton QC noted, she sat through all the evidence, including her own witnesses, prior to herself testifying. A general acceptance of her recall is not to say that I accept the reliability of all Mrs Sowman’s evidence. Rather, it is a statement I consider her a truthful witness, and as regards the events around Ms Dollimore’s arrival and placement in a retirement facility, I preferred her recollection to that of Mrs Valerie Dollimore.
[25] Ms Dollimore stayed with the Sowmans for a short time until things were sorted at Kensington Court. Mrs Valerie Dollimore believes Kensington Court immediately rejected Ms Dollimore as suitable for a self-care unit. Mrs Sowman disagrees, saying that Ms Dollimore spent a few days in a self-care unit as a tenant before Kensington Court advised she needed placement in more of a rest home room.
[26] A considerable amount of what Mrs Sowman had to do for Ms Dollimore required legal assistance. There would be the sale of the Wellington property and the purchase (as it was initially intended) of a Nelson retirement unit. Mrs Sowman approached a local firm who had a branch office near her, and thereafter used them.
[27] It was suggested, and came to pass, that Ms Dollimore sign enduring powers of attorney in relation to her affairs where Mrs Sowman was made the attorney. This was done at the lawyer’s office on 1 December 2009, and the effect of the Powers of Attorney was explained to Ms Dollimore. The lawyer then certified that Ms Dollimore was, in her assessment, mentally capable.
[28] This is I consider a second marker concerning Ms Dollimore’s mental capacity at this time following on from Dr Duncan’s November assessment. The lawyer, Ms Anissa Bain, was satisfied Ms Dollimore understood the effect of enduring powers of attorney, and was able to sign them. This was at a time when Ms Dollimore was otherwise at her worst in terms of the period covered by the trial. She was malnourished and frail and undoubtedly at a low ebb. The evidence shows she improved markedly once in a care environment, where she was encouraged to eat more regularly and was generally looked after.
[29] Reporting of other possible indicia around this time comes from family members who had contact with Ms Dollimore. Those having concerns about Ms Dollimore and her capacity at the time were her sister-in-law Valerie, Valerie’s son, Mark, and his daughter Anna, the first defendant. Recollection of timing of the events they describe is not good. However, to impose a chronological context on their evidence, the overall evidence establishes that Ms Dollimore stayed a short time in early December 2009 at the Sowmans (probably five to six days) and then moved to Kensington Court. It seems that she, Valerie and the Sowmans would thereafter regularly go to lunch. On these occasions Ms Dollimore would be picked up by the Sowmans from Kensington Court. The lunches are likely to have happened on the weekend because the Sowmans were working. Valerie Dollimore recalled four or five such lunches. That seems to have been Valerie Dollimore’s only contact with Ms Dollimore once she moved to Kensington Court. Also, over Christmas/New Year there were family events, some of which it seems Ms Dollimore attended.
[30] Mrs Valerie Dollimore says that generally on these occasions Ms Dollimore was not “all there”. She recalls her parroting, as Valerie Dollimore describes it, a statement that she wanted to leave everything to Michelle. (Others also recall Ms Dollimore saying this, although without the parroting aspect.)
Mrs Valerie Dollimore says that sometime in this period Michelle Sowman asked her to take Ms Dollimore into the Public Trust to make a new will. Valerie Dollimore made up an excuse so as to be unable to do, but says it was because she was uncomfortable with the idea of taking an unwell woman to make a new will. Michelle Sowman denies this and says it was Valerie Dollimore who kept reminding Michelle to take Ms Dollimore to do a will.
[31] Valerie Dollimore, in common with other family members, says Michelle acted as a block on visiting Ms Dollimore. She discouraged it and said Ms Dollimore would not recognise people. Again, Michelle disputes this, and says she would have welcomed others visiting. They did not.
[32] Ms Anna Dollimore recalled an occasion, around Christmas/New Year it seems, when Ms Dollimore was at a family lunch. To Anna Dollimore, Ms Dollimore seemed very frail and childlike and had to be helped to do everything. She also details being discouraged from visiting Ms Dollimore. As does Mr Mark Dollimore, whose evidence otherwise was not of particular relevance or assistance.
[33] Disclosing a contrary view to this picture of Ms Dollimore, Mr and Mrs Sowman recounted Ms Dollimore having much better conversation capacities over this period than other family members recalled. Under pressure Mr Sowman struggled to give Mr Upton details of these conversations but I accept it is now eight years ago, and the best one can expect is generalities. Both were clear that conversations were possible. There is an email in mid-December 2009 from Mrs Sowman to the lawyer saying that Ms Dollimore’s state was improving with care, and Mrs Sowman could now have conversations with her.
[34] The evidence from other sources is sparse. No witnesses were called from Kensington Court for this period. On 8 December Dr Pippa Harrison visited Ms Dollimore at Kensington Court where she was now resident. Ms Dollimore showed signs of agitation, and of hearing noises when all in fact was quiet. She is described as “quietly spoken” and “oriented in person and place, but not time”.
[35] On 9 December Ms Bain, the lawyer Mrs Sowman was using for Ms Dollimore, emailed Mrs Sowman about some documents, observing that Mrs Sowman would likely need to sign them under the Power of Attorney. However, two days later Mrs Sowman replied to the email saying that she thought Ms Dollimore would be able to sign it herself – “she’s a lot better I’m sure you will see an improvement”. And then on 14 December Mrs Sowman sent Ms Bain the email earlier mentioned, observing that she had had Ms Dollimore out on the weekend. She believed she was feeling a lot better – “I can have a conversation with her now.”
[36] There is next a letter from the Health Board’s Specialist Services for Older People. A specialist nurse, Ms Helena Fox, had visited Ms Dollimore on 12 December. It is noted that at this time Ms Dollimore was having delusional thoughts and believed she could smell urine coming from other rooms.
[37] The report noted that Ms Dollimore was independent with her self-care but observed staff have not yet had much opportunity to assess the reality and effectiveness of that self-care. It seems Ms Dollimore initially showed confusion at Kensington Court, especially at night but that this was settling down. Ms Dollimore had scored 15/30 on an MMSE, which is a quite reduced figure from November.6
[38] Notes are not available from Kensington Court over this period. Those that are available start around 11 January 2010, which is the next time period.
[39] As a general assessment, I conclude Ms Dollimore was, as the experts agree, suffering from dementia. She was plainly generally unwell when she arrived in Nelson and physically improved quite quickly with care. I accept the Sowman’s evidence of conversations. Overall, the objective evidence suggests that into early January 2010 Ms Dollimore retained capacity. The lawyer thought she had it on 1 December 2009 and none of the subsequent material suggests a significant change. Certainly, there were times when capacity may have been temporarily missing but context matters. Moving from living on your own in your own place to a rest home environment is very
6 The experts disagreed about this figure. MMSE is usually a score out of 30. Ms Fox’s report says 15/20. Dr Casey thought it a misprint. Dr Duncan said you could not be sure as sometimes the test is incomplete. I consider it will almost certainly be a typo, and would expect the report to have explained if it was recording only a partial test.
unsettling. It will often induce anxiety and confusion as it is a major upheaval; new places and new sounds all need adjusting to. Caution is needed before translating these difficulties with adjusting into evidence of a more general decline.
The build up to giving will instructions on 22 January
[40] It is an odd feature of this case that Ms Dollimore seemed interested in changing her will from early on. Mrs Sowman says that Ms Dollimore was asking about it when they were communicating in November prior to her move to Nelson. The oddity about this is that Ms Dollimore’s existing will had only been completed in February of 2009, so only a few months previously.
[41] There are features of the 2009 will that might logically prompt a desire to change as a consequence of moving from Wellington to Nelson. For example, the 2009 will provides for her ashes to be scattered over her parents’ plot in a Wellington cemetery, and for the service to be conducted by a clergy member from her Karori Anglican parish. That church in the 2009 will also receive a specific gift of $40,000. Other than that, nothing in the existing will really explains the seeming insistence on Ms Dollimore’s part of wanting to make a change. Notwithstanding this, it is common ground that over late December and early January Ms Dollimore regularly expressed a wish to leave everything to Michelle, something that would be a change from the 2009 will.
[42] As noted, an issue between Mrs Valerie Dollimore and Mrs Sowman is who of them was pushing for Ms Dollimore to get to the Public Trust. Again, I prefer Mrs Sowman’s recollection. It is to be recalled that at this point relationships within the family were cordial. Everyone it seems recognised that Mrs Sowman was putting in a tremendous amount of effort and was being very kind to Ms Dollimore. The fact that Ms Dollimore had in 2009 left something to most of the family was seemingly not known to anyone. There would have been no concern at this point within the family that a new will along the lines Ms Dollimore was talking about might mean a significant new benefit to Mrs Sowman or a loss to them. So, the environment was conducive to people helping Ms Dollimore to change her will. Valerie Dollimore says Ms Dollimore was going on about giving everything to Michelle, and it is consistent
with this context existing at that time that Valerie Dollimore would encourage Michelle to take Ms Dollimore to Public Trust.
[43] Returning to Ms Dollimore’s welfare, things did not go smoothly over this period. An issue developed with Ms Dollimore wandering off from her retirement facility. It was not a secure facility, but seemingly Ms Dollimore had not told anyone that she was going, or where. The wandering caused concern, and on one occasion a police alert. On one such excursion Ms Dollimore had got lost, but had enough wits about her to ask a dairy owner to call the retirement home to collect her. On another occasion, again lost, she got into someone’s car. As it happens, the driver was the husband of a worker at the retirement home and so he took her back.
[44] This conduct caused the retirement home to initiate an assessment designed to change Ms Dollimore’s approved level of care. It seems Kensington Court was worried about its ability to keep her safe and wanted her reassessed for dementia level three care, meaning a secure facility.
[45] The level of care assessment occurred on the afternoon of 14 January 2010. However, before detailing that, it is necessary to record an equally significant event that occurred earlier that morning. Mrs Sowman had taken Ms Dollimore in to see Ms Bain, her lawyer, in order to make a new will. Ms Bain had by then requested and obtained Ms Dollimore’s file from Public Trust so was in a position to do so. Mrs Sowman said she took Ms Dollimore to the lawyer rather than Public Trust simply because the lawyer’s branch office was more convenient than taking Ms Dollimore into Public Trust in the town centre. I accept that explanation.
[46] The will instruction did not go well. It was appropriately only between Ms Bain and Ms Dollimore. Each had seen the other only once before, on December 1 when the Powers of Attorney were signed. However, on this occasion Ms Bain formed the view that Ms Dollimore lacked testamentary capacity and so declined to take instructions. Her file note of the interview reads in full:
RE: ANNETTE DOLLIMORE
I met with Annette this morning with a view to preparing a new Will for her. I spoke to Annette and she was sounding particularly vague and is being moved from the Kensington Court units to a secure facility as she is wandering. [Note: I believe this information came from Michelle the previous day.]
I asked her about her Will and she could not remember who she prepared it with or where we had uplifted it from and nor could she remember what was in her Will. I asked her what she wanted to put in her Will now and she said she would like to leave everything to Michelle with the balance being distributed amongst her nieces and nephews. I told her that this is quite contrary to what she had previously had and what about her other nieces and nephews and she said she couldn’t remember their names and couldn’t remember leaving them any legacy. I explained that not remembering their names was not in itself a problem however I needed to be sure that she understood the actual effect of what she wanted to do and to that end we would require a medical certificate confirming that she had testamentary capacity to execute a new Will or a Codicil.
I discussed the matter with Jill Sharland and also with Clare Boss both of whom agreed a Codicil simply including Michelle and leaving the $40,000 may be the preferable way to go depending on the doctors view and also Annette’s instructions. I said to Annette I would go and visit her as soon as a doctor was able to give us some sort of certification.
Anissa Bain PARTNER
14 January 2010
[47] This was on the morning of 14 January. Mrs Seymour then took Ms Dollimore back to her retirement facility where the care assessment of her occurred that afternoon. This was undertaken by Dr Simon McGuire, a general practitioner experienced in Older Persons’ Mental Health. Dr McGuire confirmed Ms Dollimore needed a higher level of secure care, and certified her to the appropriate level.
[48] Little turns on it but I record Mrs Sowman was very critical of this episode. She felt the assessment was cursory and a fait accompli, and that Ms Dollimore had not been given a proper chance to answer questions. She was unhappy with the tone of the assessment, and indeed complained about it afterward. That aside, of importance to the present discussion is to note that the motivation for the assessment was not mental health but the perceived risks around Ms Dollimore wandering.
Obviously, dementia is linked to that wandering but the assessment was not motivated by any general deterioration in Ms Dollimore’s condition or well-being.
[49] At the assessment Mrs Sowman apparently asked Dr McGuire whether Ms Dollimore had testamentary capacity. Dr McGuire saw this question as coming out of left field and as being an odd inquiry. He says he sensed an ulterior motive. However, I observe he was not aware that Ms Bain had earlier that morning declined to take will instructions, something Mrs Sowman was obviously aware of. For a lay person not understanding what might be involved in a formal capacity assessment, I regard it as an understandable thing to ask a doctor who is undertaking an assessment (albeit of a different nature).
[50] Dr McGuire responded to the effect that Ms Dollimore did not have capacity to sign documents and he confirmed as such in writing the next day. This assessment of testamentary in capacity was the subject of much attention at the trial. The criticism is that Dr McGuire did not do a proper assessment which focused on Ms Dollimore’s capacity to do the task in issue, namely make a will. He was assessing her generally for a completely different purpose.
[51] Dr McGuire accepts that is so and notes he only made it because he was asked. That said, he maintains his opinion which he says is based on:
(a)the previous assessment by the registered nurse, Helena Fox;
(b)information from Kensington Court staff;
(c)Ms Dollimore’s wanderings;
(d)Ms Dollimore’s lack of judgment in getting into a stranger’s car;
(e)Ms Dollimore’s paranoia (delusional thoughts); and
(f)the pattern of her MMSE scores – 24/30 in November, 15/30 in December and 17/30 with Dr McGuire in January.
[52] I observe it is not clear how many of these factors other than (e) and (f) say much about the capacity to make a will. However, having regard also to the opinions of the other medical experts, I consider the situation is that 14 January was clearly a bad day for Ms Dollimore. Two independent persons, interacting with her from different viewpoints, both formed a view that she did not have testamentary capacity. Dr McGuire’s assessment reinforces Ms Bain’s. I put it that way because it was Ms Bain who was focused on the issue of testamentary capacity and no doubt asked questions of Ms Dollimore specifically with that in mind. Dr McGuire’s later assessment simply confirms it was not a good day.
[53] Beyond that, and considering its significance in terms of capacity on 22 January, I give some weight to Dr McGuire’s assessment because he is experienced with the elderly. However, that is tempered by the fact he was not really focused on testamentary capacity and as he says, the question came from left field. His cannot be accepted as an informed assessment that changes the context subsequent to 14 January.
[54] Two other observations can be made. First, it is not surprising Ms Dollimore was struggling by the time Dr McGuire assessed her in the afternoon. She had already been out to the lawyers. For someone in her general condition it would have been a big and unsettling day. Second, in her evidence Ms Bain second guessed her assessment of 14 January. She worried that she had been influenced by the prior knowledge of the likely shift to dementia care. It was a concern she had at the time as Ms Bain suggested a different person from the firm see Ms Dollimore and make an assessment.
[55] My conclusion is that the events of 14 January certainly show there will be days, and this was one of them, when Ms Dollimore would lack capacity. The question naturally arises whether, if Ms Dollimore lacked capacity on 14 January, could she possibly have it on 22 January and 26 January? Before analysing what happened on those days, I turn to the expert evidence about dementia, and the idea of fluctuating capacity.
The expert medical opinion
[56] The two experts were Dr Jane Casey and Dr Crawford Duncan. Each is an expert in Older Person Psychiatry and is experienced in the areas relevant to trial. Dr Duncan assessed Ms Dollimore in November 2009 in Wellington. Otherwise their opinions on testamentary capacity are the product of reviewing the material.
[57] The experts produced a joint statement. The following are the matters on which there is common ground:
7.In our Expert Opinion, Miss Dollimore had the diagnosis of Dementia, probable Alzheimer’s disease, of a mild-moderate severity, with behavioural and psychological symptoms.
8.There was no formal comprehensive medical assessment of testamentary capacity at or around the signing of the Will, dated 26 January 2010.
9.The assessment of capacity is task specific, situation specific and time specific. Dementia may influence the process of decision making (defined as a person’s competency) and is an indication for the need to address the content of decision making (defined as a person’s capacity), such as testamentary capacity.
[58]Dr Casey who is of the view Ms Dollimore lacked capacity, then states:
12. Cognitive states can fluctuate but with varied prevalence across different Dementias. In Alzheimer’s Disease, reports of good days and bad days are said to be at around 20%. Research shows that cognitive fluctuations do not occur to a significant degree in cognitive domains which are essential to achieving testamentary capacity, such as episodic memory and frontal executive function. Miss Dollimore was observed to be ‘clean and well-dressed’ and ‘not confused and disoriented with the move’, to the Dementia Unit, on 21 January 2010. It cannot be assumed that these superficial observations or what might be said to be a ‘good day’ then means that Miss Dollimore had reached the requisite level of capacity to execute a Will.
[59] Dr Duncan feels that Ms Dollimore could have had capacity in the sense that the level of dementia does not of itself mean incapacity. No assessment was done on the day, and the Public Trust officer was experienced. Given these factors, he considers the presumption of capacity should prevail:
19.Miss Dollimore’s dementia was mild to moderate in severity, which indicates her competency for making decisions may be compromised but not sufficient to conclude that Miss Dollimore lacked testamentary capacity. The impression gained is that the behaviour and psychological changes associated with Miss Dollimore’s dementia described by Dr McGuire, that had the consequences of influencing her level of care, (following Miss Dollimore’s transfer from living in her own home in Wellington to require residential care in a dementia care unit) in themselves do not establish that Miss Dollimore lacked testamentary capacity.
20.The assumption is that a person has capacity until proven otherwise, there has been no assessment or consistent observation that establishes Miss Dollimore lacked Testamentary Capacity; in my opinion the assumption has not been proven otherwise and that it is possible Miss Dollimore had Testamentary Capacity on 22 January 2010 (when she gave her will instructions) and on 26 January 2010 (when she signed her will).
[60] It is clear that both experts felt uncertainty because of the lack of focused assessment on the day or near it. A difference lies in the extent to which each accepts the possibility of fluctuation, and the scale of such fluctuation. It comes back, in that sense, to the events of 14 January – how much of a marker is that?
[61] Dr Casey considers Ms Dollimore’s dementia to be sourced in Alzheimer’s, which is a type of dementia with less fluctuations. In her view with this type of dementia the “good days” do not in reality reflect substantively better moments from a capacity viewpoint. They are short term and short lived. Improved chattiness, for example, does not mean improved cognitive ability.
[62] Dr Casey identified a single digit score on the MMSE as meaning testamentary capacity is highly improbable. This is consistent with the general theme of both experts that Ms Dollimore (scores 21, 15, 17) is in the range of may have capacity or may not. In noting this I am not suggesting MMSE is a tool that can determine capacity, just that its results are consistent with the joint opinion that Ms Dollimore’s condition was such that she was neither sure to have capacity, nor sure not to have it.
[63] Dr Duncan explained a level of reticence as to diagnosing the cause or source of dementia. He prefers to describe the presence of dementia and considers the impacts on a particular person, and on their capacity, require individualised assessment. Dr Duncan accepts some patterns of behaviour and deficit are associated
with different types of dementias. An example for Alzheimer’s is sundowning, when people get more muddled and irritable as the day progresses. Equally there are different patterns associated with delirium.
[64] Concerning Ms Dollimore, Dr Duncan noted facility records describing good and bad days and observed that “perhaps” her decision-making ability would change on the good days. In his report, and again in evidence, Dr Duncan confirmed his view it was “possible” Ms Dollimore had capacity.
[65] Finally, in relation to the evidence of Dr Duncan, in cross-examination various items of evidence about Ms Dollimore were put to him of which he was unaware at the time of giving his opinion. They are what were termed collateral items which could inform the assessment, the inference being Dr Duncan’s opinion could or should be different if he knew of them. My evaluation of Dr Duncan’s evidence is not affected by this. None of these collateral matters was of a type, nor claimed to be of a type, that of itself would point to incapacity. Dr Duncan’s view would remain that:
(a)medically Ms Dollimore could have capacity given the level of dementia;
(b)nothing points irrevocably to incapacity; and
(c)the will was taken by an experienced Public Trust officer who detected no difficulties.
The matters of which he was unaware all fall into the second of these three points so do not alter his opinion.
The pattern of wills
[66] The last background matter to consider before returning to the events around 22 January 2010 is an overview of the wills. When assessing Ms Dollimore’s capacity to make the 2010 will, what changes were being made? I note that there was no one to whom Ms Dollimore owed moral duties.
[67]Three wills are available. In 2005 the overall distribution was:
(a)monetary gifts of equal amount to Ms Dollimore’s local church, her brother Gordon, her great niece Paula (Paula is Mrs Sowman’s daughter) and the Red Cross;
(b)paintings, ornaments, china and silverware to Gordon;
(c)all other household effects to Salvation Army; and
(d)residue split equally amongst eight, being a niece Sandra, five of the six from the next generation, and the only two children of the third generation, being Paula’s children.
[68] Overall therefore, there was a mixture of family and non-family, with the bulk of the estate going to the children of Ms Dollimore’s nieces and nephews. Relevant to what happened in 2010, it can be noted that in 2005 Paula received a specific monetary gift. She was the only one of that generation not to share in the residue, but instead her two children each took an equal share of the residue. The relevant observation is that Paula is treated differently.
[69] The next will is 2009. The motivation for it, perhaps, was the death in 2008 of Ms Dollimore’s brother Gordon. The 2009 will is quite similar to the 2005. A nephew, Mark Dollimore, replaces Gordon each time he had appeared in the 2005 will. The gift to the Red Cross is gone. There is no change to the residue.
[70] Before detailing the 2010 will, it can be noted that Mrs Michelle Sowman did not feature in either the 2005 or 2009 wills. She is not, however, alone in this. Originally three of her siblings – Mark, Wayne and Darryle also did not feature although their children did. This changed in 2009 only to the extent Mark now took Gordon’s specific gifts, but Michelle, Wayne and Darryle did not take either under the 2005 or 2009 wills. As will be shown, all of them, not just Michelle, appear in the 2010 will.
[71] The 2010 will represents a generational shift. Recalling that Ms Dollimore had for some weeks been talking about leaving it all to Michelle, that did not happen but a much simpler will emerged which focused on the first generation rather than their offspring:
(a)the specific gifts all disappear. That means the gifts to the Church, to Paula and to Mark. Also, a specific financial gift to Paula’s children is deleted;
(b)the whole of the estate is divided amongst the siblings – 50 percent to Michelle, and 50 per cent amongst the other four plus Paula. This means the inclusion for the first time of Michelle, Darryle and Wayne. There are gift overs to the children of these beneficiaries.
[72] It is not easy to assess the difference in dollar terms from 2009 to 2010 if it is assessed on a family unit basis rather than individuals. For example, while Michelle Sowman now takes half, lost to her family unit are gifts of $40,000 to her daughter, plus whatever amount was in a savings account that was left to Michelle’s grandchildren, plus the loss of a quarter of the residue to the same two children. The Mark Dollimore family unit loses a $40,000 gift and the gift of the paintings and ornaments, both previously gifts to him, and three eighths of the estate to his children. The same unit acquires 10 per cent of a larger residue, but overall takes much less. And so on. Finally, I note that Paula is again the odd one out. The six beneficiaries in 2010 are the five nieces and nephews, and one great niece, Paula.
[73] On its face, the 2010 will represents a significant change but not anything inexplicable. It is a move back in generations, an abandoning of any specific gifts including one to a Parish Ms Dollimore has now left, and within the beneficiaries a weighting in favour of the niece who has assumed her day to day care, and is undoubtedly now the closest person in her life. In a perfect world and in the context of this type of case, one would like to have a record of the thinking behind it, but that is not available. What can be said is that, ignoring previous iterations and looking at the 2010 will standing alone, it is entirely rational. It leaves the entire estate to the
nearest generation of her family, and within that has an understandable preference for Michelle.
The making of the will
[74] Sometime before 22 January 2010 Mrs Sowman decided she would take Ms Dollimore to Public Trust to make a will. By way of background, it is to be remembered that by this stage Ms Bain had raised concerns about capacity and said a medical certificate was needed. Further, Dr McGuire had said she did not have testamentary capacity.
[75] On 18 January Mrs Sowman emailed Ms Bain and set out where things were at with Ms Dollimore’s care. She had by then been moved to Tasman Park, a secure facility. Mrs Sowman asked what could now be done about the will. Ms Bain replied:
I discussed the matter with a colleague who works in our Wills and Estate department and suggested that I prepare a codicil for Annette to sign which includes you in the will with the same legacy as your brother. Jill would then visit Annette and make her own assessment (without all of the background knowledge) to determine whether she feels Annette would be capable of signing a new will. I think this is the best we can do in the circumstances. What are your thoughts?
[76] I note two aspects to this. There is no advice to Mrs Sowman about needing to get, or how to get, a formal assessment done by a specialist. Second, there is a suggestion that another assessment could be made by a person from the firm. I see this as significant because going to the Public Trust, as Mrs Sowman did, is the functional equivalent of the suggestion in the email that a legal executive could visit and make a further assessment. (I observe of course that the legal executive would be rather more informed of the background than Public Trust were.)
[77] On 18 January Mrs Sowman made the appointment for Ms Dollimore to see the Public Trust. On 21 January Mrs Sowman advised Ms Bain that was what she was doing. Ms Bain was supportive. In evidence, Ms Bain said she believed Public Trust would do an assessment and, as noted, she was not convinced about her own earlier assessment.
[78] The other relevant event prior to meeting with Public Trust was a doctor’s appointment on 21 January. Ms Dollimore had been taken to see her doctor. The relevant part of the doctor’s note reads:
Clean/well dressed – chatty – compliant with exam – not confused or disoriented with move.
[79] The plaintiff and first defendant would read this down as not being any sort of assessment and that is so, but it does speak for itself. Ms Dollimore was clearly able to converse with the doctor who was able to discuss with her the recent move to Tasman Park.
[80] And so to the Public Trust meeting on 22 January. Mrs Sowman took her. The Public Trust officer, Mr Strange, had no previous connection with the file and observed in evidence there is often little time to prepare. It is convenient to describe what happened first by the available objective evidence and what is common ground.
[81] Ms Dollimore met with Mr Strange alone. After an unknown period of time, Mrs Sowman was asked to join them. Someone said at that point when Mrs Sowman arrived that Ms Dollimore wanted to leave everything to Mrs Sowman. Mrs Sowman recalls it was Mr Strange. He does not directly recall this but disputes he would say this, and considers it must be Ms Dollimore who informed Michelle. Mrs Sowman responded that leaving her all the estate was too much and asked about other family members. She suggested half to her. The will instructions were adjusted. Mr Strange did not meet with Ms Dollimore separately after these changes.
[82] Looking at the product of this session, I have noted already the changes as regards the dispositions. Concerning other matters, the only change was that there was no longer any request for a member of the Karori Anglican Parish clergy to conduct the service.
[83] Mr Strange made a single page of hand written notes during the meeting. They read:
(a)1131098 – this is Ms Dollimore’s Public Trust number;
(b)EPA and PPPT are written, both with a tick. The first is a reference to enduring Powers of Attorney. The second is what Mr Strange described as “Prepaid general trust”;
(c)Annette Dollimore;
(d)21 Best Place, Stoke;
(e)sold home in Wellington – sold in February 19/1, 420K;
(f)shares and investments with (Judy Penlington);
(g)no children;
There is then a line dividing the page;
(h)estate 2 equal parts:
(i)one part to niece Michelle Sowman;
(ii)one part among nephew Mark, nephew Wayne, niece Darryle, niece Sandra Dollimore; great niece Paula;
(iii)gift over to respective children for all beneficiaries.
[84] If all this information were correct and sourced in Ms Dollimore in my view there could be no real doubt that she had testamentary capacity on the day. This is especially so when the instructions have been taken by a very experienced Public Trust officer who plainly saw no reasons for concern on the day. Unfortunately, the matter is not so straight forward.
[85] I preface the following observations and analysis by noting that the relevant events took place eight years ago, so recall is likely to be difficult. That said, Mr Strange, in my view, oscillated in his evidence between on the one hand what he thought was actual recollection and on the other projecting onto the situation what he believes would have happened based on his normal practice. I did not find him a reliable witness. He changed his evidence frequently. For example, in his brief, he said he had no particular memory of the meeting. Yet by trial he did, explaining that the contrary wording in his brief had been intended to convey that he recalled parts of the meeting but there was nothing out of the usual. I observe this latter point of nothing out of the ordinary, increases the likelihood that his original statement is correct. Namely, that he remembers little of an interview eight years, and many will instructions, ago.
[86] The evidence was riddled with other inconsistencies and changed positions, some in critical areas. Another example is that Public Trust use an electronic will instruction form. The idea is that the Public Trust officer populates the electronic form as the interview goes. This completed form then becomes the basis for someone else to draft the will. If it is an existing client, then the form should already contain the will instructions from the previous will. These provide the basis for updating.
[87] Mr Strange initially said the form would have been open during the interview and used to inform him of the background. However, he later admitted he prefers to just take notes and amend the form later. This was a complete contradiction from earlier evidence on a pivotal point.
[88] Another example of unreliability is evidenced by his notes. There is no record on his notes of Ms Dollimore’s apparent initial instruction to leave everything to Michelle. All that is noted is the revised version once Mrs Sowman was in the room. Equally how other changes were made to the instruction form, when there is no equivalent entry on his handwritten notes, is unclear.
[89] Mr Strange was a witness who tended to agree with propositions. I do not have confidence all his answers were considered. For example, he answered a series of questions put to him by Mr Bamford about a document he was ostensibly looking at.
It later transpired this was a completely different document from that Mr Bamford was working off yet he just answered the questions anyway.
[90] Mr Strange was not assisted in his evidence by deficits in Public Trust’s records. The Court was provided with a written print out of the completed 2005 electronic will instruction form and also the completed 2010 form. However, there were only two pages available of the 2009 form. The rest had seemingly been lost. So too was a standard declaration about the will that would have been signed by Ms Dollimore in 2010 that was unable to be located.
[91] Against that background I turn to some of the issues. First, and significantly, 21 Best Place, Stoke was not Ms Dollimore’s address. It was Mrs Sowman’s. Ms Dollimore had lived there for five days in early December but not otherwise. Mr Strange is insistent Ms Dollimore gave it to him; Mrs Sowman denies she provided it. So, accepting that common evidence, Ms Dollimore would appear confused. Her real address was Tasman Park, a dementia facility and obviously a serious red flag for Mr Strange had he known. As Mr Upton put it to Mrs Sowman – either Ms Dollimore gave it and she was confused, or Mrs Sowman gave it, and it was a coverup to hide where Ms Dollimore really was.
[92] Another oddity is that in the electronic form, once completed, the recorded phone number is that of Mrs Sowman. Where did that come from and when was it added? Mrs Sowman accepts that Ms Dollimore would not know the number and obviously Mr Strange, if it was he that added it later, did not know it. It is not included in his handwritten notes. It may be in other Public Trust records since Mrs Sowman made the appointment, for example, but that is not known.
[127] It is further submitted Mrs Sowman isolated Ms Dollimore from others. Several family members say they were discouraged or prevented by Mrs Sowman from visiting Ms Dollimore. The taking of Ms Dollimore to Public Trust rather than back to the lawyer is instanced as another example of isolating her and ensuring decision makers lacked the necessary information. And it is submitted the evidence suggests that Ms Bain was always acting on Mrs Sowman’s instructions, not Ms Dollimore’s.
[128] Some of these points have already been addressed but for completeness I take them in sequence.
[129] The evidence about Mrs Sowman’s knowledge of the 2009 will is unclear. The first opportunity to know its contents would be once Ms Bain received the file from Public Trust in early January 2010. The first possible time Ms Sowman herself saw the information was 13 January. It is not clear that she did on this date. Well before that date Ms Dollimore was already talking about leaving everything to Michelle. Recalling that the 14 January meeting with Ms Bain was to make the will, I do not accept the evidence supports Mrs Sowman being motivated by her knowledge of the contents of the 2009 will. The process to make a new will occurred before Mrs Sowman knew of the 2009 will. I accept that the changing of the will process was because it was something Ms Dollimore was asking to do. It was not part of some plan on Mrs Sowman’s part.
[130] For reasons already discussed I also consider any characterisation of the changes in the will that simply says Mrs Sowman went from nothing to half is too simplistic. The 2009 will skipped a generation of which Mrs Sowman was part. Her siblings were also ignored other than Mark who for some reason took some specific gifts previously earmarked for his now deceased father. Four siblings all appeared in the will for the first time in 2010. Mrs Sowman was just one of those four. If a focus on wider family units is legitimate, Mrs Sowman’s family unit had done as well as any other under the 2009 will. In fact, marginally better.
[131] Another point of direct dispute, and part of the isolation proposition, is the idea that Mrs Sowman actively discouraged the family from visiting. I do not accept this is so, and consider the family are (not dishonestly) re-imagining words of caution as something more strident. The question can simply be asked – how could Mrs Sowman prevent anyone from visiting? There is no suggestion she arranged a block at the rest home reception, nor any evidence about family members actually ever trying to visit Ms Dollimore. Mark Dollimore gave some evidence about sneaking in unseen to one of the later places where Ms Dollimore resided. This is well after the period being discussed in this case. As it happens, a charge nurse from that facility registered surprise and doubt this could be achieved but it is not necessary to resolve it. I also note Mrs Valerie Dollimore was included in the weekend jaunts and lunches that occurred when Ms Dollimore was at Kensington Court. This is another factor pointing against deliberate isolation.
[132] More generally, the idea that Mrs Sowman would deprive Ms Dollimore of visitors is completely inconsistent with her own family’s acceptance of the care and love Mrs Sowman showed for Ms Dollimore. The contemporaneous emails Mrs Sowman sent to the lawyer display her genuine care and concern for Ms Dollimore. It shines through. Overall, I do not accept Mrs Sowman would have actively discouraged visitors.13
13 Mr Upton submits Mrs Valerie Dollimore was not directly challenged on this aspect of her evidence. I have not overlooked this but it does not cause me to alter my conclusion that Mrs Valerie Dollimore is incorrect on this and with hindsight is viewing the exchanges through a different and incorrect lens.
[133] Overall, I accept that a context of potential influence exists. Mrs Sowman was caregiver (in a loose sense), held the power of attorney, and took most decisions. Ms Dollimore wanted to give Mrs Sowman all of her estate. This was obviously a legally fraught situation and is another situation where, in my view, better advice could have created some protections for Mrs Sowman. But again, they did not happen and this issue now needs addressing.
[134] My assessment, however, is that Mrs Sowman was not motivated in any sense by personal gain. I further note that from early on, and realistically well before influence could have had effect, Ms Dollimore was already saying to people she wanted to leave everything to Michelle. If Mrs Sowman was secretly influencing Ms Dollimore, the secrecy part was not working. Everyone knew about what Ms Dollimore wanted to do.
[135] I consider when assessing undue influence, it is relevant to think about the two entities to whom Mrs Sowman took Ms Dollimore to make a will – a lawyer and Public Trust. These are independent entities, trusted in the community, and both with obvious experience in the area. They are a very unlikely choice for someone allegedly trying to engineer a personal benefit.
[136] There is little evidence to suggest Ms Dollimore was deprived of the ability to bring independent and informed judgment to her will. Many in the family knew of her desire to leave everything to Michelle, and none seemed to have sought to discuss this with her. There is no evidence of Michelle discussing Ms Dollimore’s testamentary wishes with her and indeed there is evidence to the contrary.14 On the occasion it arose at lunch when only Mrs Sowman’s family was there, Mrs Sowman shut the topic down. Ms Dollimore gave her instructions to a Public Trust officer who was alone with her when she instructed him that she wanted to leave everything to Michelle. Finally, I repeat my assessment that the will is rational, and sensible in terms of family relationships and Michelle Sowman’s greater efforts to help Ms Dollimore.
[137]I accordingly reject the claim of undue influence.
14 Paula Jonson’s evidence.
Orders
[138] The second defendant’s application for a declaration that the 2010 will of Ms Annette Dollimore is valid is granted.
[139] The plaintiff’s application for probate of the 2009 will of Ms Annette Dollimore is declined.
[140] The parties, if agreement is not reached, are to agree a timetable for the filing of submissions concerning costs. It is recognised the timetable will be affected by the vacation period. I will deal with costs on the papers unless I need to hear further from the parties.
Simon France J
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