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…
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