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 Nankivell was well known to Public Trust officers as a customer. Ms Birch had extensive experience with dementia patients, in particular through the period 2006 until the end of 2009. Ms Birch attests that in her view Mr Nankivell “retained the requisite mental capacity to give valid instructions and to execute all the documents he did with me, despite his early onset dementia”. Notwithstanding Ms Birch was aware of Mr Nankivell’s early onset dementia from 2007, she noticed no significant change in his understanding, behaviours or intentions over that period.

[9]                 Some two years after executing his 2010 will, on 14 April 2012 Mr Nankivell went into care for early onset dementia. On 21 July 2016, Dr Romain Kuhm provided a certificate that Mr Nankivell lacked capacity to make and communicate decisions in relation to the management of his personal welfare, property and finances.

[10]Public Trust became Mr Nankivell’s property attorney on 16 September 2016.

[11]Mr Nankivell died on 5 November 2018.

[12]             Subsequent investigations raised concerns as to Mr Nankivell’s capacity at the time the wills were made, after a letter was obtained showing that in June 2007 the deceased was seen by a neurologist who concluded that “there seems no doubt that he [Mr Nankivell] has a dementing illness and that it is likely to be Alzheimer’s disease”.

[13]             In 2007 a neurologist concluded that Mr Nankivell was suffering from Alzheimer’s dementia. However, although there had been a global functioning reduction for two to four years, according to a neurologist it appeared the rapid decline in Mr Nankivell’s condition occurred between 2008 to 2009.

[14]             In  an  assessment  on  6  January   2009,  concern  was  expressed   about   Mr Nankivell’s overall condition, where his mini mental state examination score was 13/30. Mr Nankivell had “deficits in global function and could not write a sentence, copy a design or draw clock faces”. Dr Matthews, a geriatrician, concluded that “there is clear indication from the reports that this period was associated with a marked decline in cognition”.

[15]             In  an  assessment  by  an  occupational  therapist  on  23  February  2010,  Mr Nankivell was scored 3.2 out of 6.0 (the worst score being 1.0 and intact being 6.0). It was assessed that Mr Nankivell by then required a caregiver 60 per cent of the time.

[16]             On 14 January 2012, Mr Nankivell’s dementia was gradually worsening and a care plan was made by a dementia facility.

[17]             By 27 October 2016, Mr Nankivell was in full time care, with his dementia being very advanced. At that stage it was determined that he lacked capacity to make and communicate decisions in relation to the management of his personal welfare, property and finances.

[18]             Given the cognitive state timeline, Dr Matthews prepared a post facto assessment indicating as follows:

1)The will made in 1993 is unlikely to have been compromised by any cognitive impairment.

2)By the time the second will on 29 November 2006 was made, his dementia condition was well underway and one needs to start questioning testamentary capacity.

3)There is clear evidence that any wills made beyond the assessment on 6 January 2009 would, in my opinion, not have been conducted with testamentary capacity.

4)That  wills made  on 29 November  2006, 22 December  2006 and  10 April 2008 questionable in terms of the deceased testamentary capacity but reports would suggest there were elements of function that could give testamentary capacity as per the definition. I would regard this phase as being equivocal for testamentary capacity.

The law

[19]             The Public Trust in its memorandum outlined the legal position, which I adopt. The law is well established, with Loosley v Powell setting out the onus and standard of proof as set out in Bishop v O’Dea where testamentary capacity is in doubt as follows:1

[4]        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.

[5]        That onus must be discharged on the balance of probabilities. Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.

[20]             As the Public Trust submitted, the principles relating to the assessment of testamentary capacity are not in dispute and were restated by the Court of Appeal in Loosley as follows:2

[19]      The principles relating to the assessment of testamentary capacity are well-settled, and were set out by this Court in Woodward v Smith. There, this Court re-stated the principles laid down in the often-cited judgment of Banks v Goodfellow:

(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.

1      Bishop v O'Dea (1999) 18 FRNZ 492 (CA), as cited in Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [20].

2      Loosley v Powell, above n 1 (citations omitted).

(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.

…
(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.
Analysis

[21]             The medical evidence suggests that the deceased’s early onset dementia may have arisen as early as 2001, so raises lack of capacity as an arguable point in relation to all but the 25 February 1990 will.

[22]             The evidence supports the conclusion that prior to January 2009, the deceased had sufficient capacity to make his wills and did so in preparation for his impending cognitive decline.

[23]             In those circumstances, I am satisfied that the 10 April 2008 will, for which Ms Birch took instructions on 7 December 2007, was executed while the testator had the required testamentary capacity. That will was executed prior to the testator’s rapid decline in cognitive ability, the changes to the will were not erratic, illogical or irrational or unexplained in the period 2006 to 2008. There were mainly minor changes to the will. The main changes in the 10 April 2008 will were to remove Sean Gordon from the will, to make a direct gift of the residue of the estate to the trusts, to forgive debt, and to remove the protector clause when Ms Fraei had replaced the testator as protector in the family trust.

[24]             However, I consider the 2009–2010 wills cannot be said to have been executed with testamentary capacity given the medical evidence.

[25]             In conclusion, I am satisfied that the will dated 10 April 2008 was executed with the required testamentary capacity. The usual process involving the required application for grant of probate and supporting affidavits must of course be now followed.

Costs

[26]The Public Trust has made an application for costs seeking the sum of

$26,387.69 comprising $23,916 in fees and $2,471.69 in disbursements (GST exclusive) as set out in invoices attached to a memorandum dated 15 August 2023.

[27]             The second, third and fourth respondents have opposed the costs application and seek leave to file affidavits in support of their opposition to costs.

[28]             The fifth respondent indicates there is no issue as to costs between the second, third, fourth and fifth respondents. However, the first respondent does not oppose the application by the second, third and fourth respondents to file evidence on costs. The

first respondent reserves her position pending determination of that opposition to costs application.

[29]             It is not normal in matters such as cost applications that affidavits be required to be filed. However, in the circumstances I direct:

(a)A memorandum in opposition to the application for costs together with supporting affidavits (strictly limited to the costs issue) be filed and served by the respondents on or before 10 days from the date of this judgment.

(b)A memorandum in response together with any affidavits (if required) to be filed and served within a further five days.

(c)The application be dealt with as directed by the Duty Judge.

Grice J

Solicitors:

Wilson Harle, Auckland

Mahoney Horner Lawyers, Wellington Lance Pratley Law, Wellington