Public Trust v Dollimore - [2018] NZHC 3316

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…

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 Dollimore

Details

AGLC: Public Trust v Dollimore [2018] NZHC 3316
Case: [2018] NZHC 3316
Decision Date: 14 December 2018

CaseChat Overview and Summary

This case involved a dispute regarding the validity of a will executed by the late Ms Annette Dollimore in January 2010. The primary issues were testamentary capacity and undue influence. Public Trust, the executor under both the 2009 and 2010 wills, sought to have the 2009 will admitted to probate and a declaration that the 2010 will was invalid. The second defendant, Mrs Michelle Patricia Sowman, argued that Public Trust should have placed both wills before the court and remained neutral. Public Trust alleged incapacity and undue influence, but only advanced the argument of incapacity. The first defendant, Ms Anna Deane Dollimore, admitted the Public Trust's pleading on both incapacity and undue influence. The court found that Ms Dollimore likely lacked testamentary capacity on the day she signed the 2010 will, but it was not satisfied that she lacked capacity on the day she gave instructions or the day she signed it. The court rejected the claim of undue influence, finding that Mrs Sowman was not motivated by personal gain and that Ms Dollimore was able to bring independent and informed judgment to her will. The court granted the second defendant's application for a declaration that the 2010 will of Ms Annette Dollimore was valid and declined the plaintiff's application for probate of the 2009 will. The parties were to agree on a timetable for the filing of submissions concerning costs.

Orders