Public Trust v Fraei - [2023] NZHC 2796

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-808

[2023] NZHC 2796

IN THE MATTER OF An application for obtaining a grant of probate in solemn form in the estate of NEIL THOMAS NANKIVELL

UNDER

Rule 27.6 and Part 5 of the High Court Rules 2016

BETWEEN

PUBLIC TRUST as executor of the estate of Neill Thomas Nankivell

Applicant

AND

PUBLIC TRUST and SUZANNE

FRANCES FRAEI as trustees of the NTN Family Trust

First Respondent

AND

KAY MARIE CLARKE

Second Respondent

AND

DIANE LILLIAN NANKIVELL

Third Respondent

AND

CATHERINE ANN NANKIVELL

Fourth Respondent

AND

SUZANNE FRANCES FRAEI

Fifth Respondent

AND

PUBLIC TRUST AND SUZANNE

FRANCES FRAEI as trustees of the SFN Family Trust

Sixth Respondent

Hearing: On the papers

Counsel:

F C Monteiro and P E Baine for applicant.

E J Horner for second, third and fourth respondents. L H Pratley for first and sixth respondents.

Judgment:

6 October 2023

PUBLIC TRUST v FRAEI & ORS [2023] NZHC 2796 [6 October 2023]

JUDGMENT OF GRICE J

Introduction

[1] On 19 December 2022, the Public Trust as executor (the applicant) brought an application (the application) seeking probate in solemn form of the wills of Mr Neil Thomas Nankivell (the deceased), pursuant to r 27.6 of the High Court Rules 2016. At all times the applicant has abided the decision of the Court and propounded six wills as alternatives. This judgment deals with testamentary capacity.

[2]Radich J in a minute of 13 June 2023 directed that:

(a)submissions be filed to enable the Court to properly consider the application, and

(b)the application be dealt with on the papers, as the parties consented to the grant.

[3] The parties all agree that the probate in solemn form should be granted in respect of the will dated 10 April 2008, as indicated by memoranda.

[4] I set out the background and legal position to the application. I have been greatly assisted by the applicant’s detailed submissions. The respondents indicate they agree with the applicant’s submissions and therefore have not repeated the background and legal position.

Background

[5] Mr Nankivell died on 5 November 2018. He left behind six duly attested wills executed between 1993 and 2010, all of which appointed the Public Trust as executor. An issue as to testamentary capacity arose after Mr Nankivell’s death over which of his wills was his last valid will.

[6]Mr Nankivell made the following wills with the Public Trust:

(a)4 February 2010;

(b) 21 July 2009;

(c)10 April 2008;

(d)22 December 2006;

(e)29 November 2006; and

(f)25 February 1993.

[7] Mr Nankivell’s ex-wife (Ms Fraei, the second respondent) and his three adult children (the third, fourth and fifth respondents respectively), each plead that the last valid will was that dated 10 April 2008. In addition, they agree to a division of the estate regardless of which will is to be granted probate. No capacity issues were raised or noted at the time the wills were executed.

[8] Mr…

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 Fraei

Details

AGLC: Public Trust v Fraei [2023] NZHC 2796
Case: [2023] NZHC 2796
Decision Date: 6 October 2023

CaseChat Overview and Summary

The case before the High Court of New Zealand involved an application for the grant of probate in solemn form for the estate of Neil Thomas Nankivell. The applicant, Public Trust as executor, sought to have the will dated 10 April 2008 admitted to probate, while the respondents, including Suzanne Frances Fraei and other family members, contested the validity of the will on grounds of the deceased's testamentary capacity. The primary legal issue was whether Mr Nankivell had the requisite mental capacity to execute the will dated 10 April 2008. The court had to consider the medical evidence regarding Mr Nankivell's cognitive state at the time the will was executed and whether he possessed the necessary understanding and faculties to make a valid will.

The court found that the evidence demonstrated Mr Nankivell had early onset dementia, which may have manifested as early as 2001. However, the court was satisfied that Mr Nankivell had sufficient capacity to make his wills before January 2009, particularly the will dated 10 April 2008. The court noted that the changes in the will were minor and logical, and the will was executed before the rapid decline in Mr Nankivell's cognitive ability. Consequently, the court concluded that the will dated 10 April 2008 was executed with the required testamentary capacity. The court dismissed the contentions of the respondents regarding the capacity of the deceased at the time of executing this will.

In its judgment, the court also addressed the application for costs submitted by the Public Trust. The respondents opposed the costs application, seeking leave to file affidavits in support of their opposition. The court allowed the respondents a limited period to file their affidavits and directed that the costs application be dealt with by the Duty Judge. The court's final orders included the grant of probate in solemn form for the will dated 10 April 2008 and the direction for the respondents to file their affidavits regarding the costs application within the specified timeframe.

Orders