Public Trust v McGrail - [2023] NZHC 1825

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2023-483-016

[2023] NZHC 1825

IN THE MATTER OF The Estate of the late PAMELA ADRIENNE McCULLOCH

AND IN THE MATTER OF

An application for Probate in Solemn Form

BETWEEN

PUBLIC TRUST

Plaintiff

AND

LYNETTE McGRAIL

First Defendant

AND

BRIAN JOHNSON

Second Defendant

Hearing: On the Papers

Appearances:

G M Cairns for Plaintiff

Judgment:

13 July 2023

JUDGMENT OF CULL J

[1] Pamela Adrienne McCulloch died on 17 June 2022 at a rest home. The Public Trust, as executor of her estate, has applied for probate in solemn form of Ms McCulloch’s will dated 1 September 2021 (the September Will) or, alternatively, her previous Will dated 10 May 2021 (the May Will).

[2]The Wills are the same, save for two relatively minor differences:

(a) In the May Will, Ms McCulloch gifted Lynette McGrail, the first defendant,
$20,000, whereas in the September Will, Ms McCulloch reduced this gift

Est of McCulloch [2023] NZHC 1825 [13 July 2023]

to $10,000. The Public Trust submits Ms McCulloch made this reduction because Ms McGrail could no longer look after her dogs when Ms McCulloch moved into the rest home.

(b) In the May Will, Ms McCulloch gifted Brian Johnson, the second defendant, $5000, which in the September Will increases to $20,000. The Public Trust submits Ms McCulloch increased Mr Johnson’s legacy because he would now be looking after her dogs.

[3] The Public Trust now asks for the Court’s determination as to which of the two Wills should be admitted to probate in solemn form because of some uncertainty arising as to whether the deceased has testamentary capacity at the time she executed the September Will.

[4] The first and second defendants and each of the residuary beneficiaries have consented to the Public Trust’s application under either the May Will or the September Will and have confirmed that they will not be filing a statement of defence or participating in these proceedings unless directed by the Court. All consented to the application being determined on the papers in the interests of efficiency and saving costs to the estate.

[5]The issue for determination is which of the two Wills should receive probate?

Background

[6] The Public Trust has placed both Wills before the Court on the basis of “suspected capacity issues” with the September Will. Ms McCulloch entered rest home care in August 2021. Ms McCulloch died in June 2022, and her death certificate lists dementia as a cause of her death.

[7] The Public Trustee, Mr Stevenson, took instructions from Ms McCulloch in relation to the signing of both Wills. He is an experienced trustee who has been taking Will instructions for around 39 years. At the signing of the May Will, Mr Stevenson took the precaution of ensuring that the deceased attended her general practitioner, Dr

Deon Hazelhurst, for a mini-ACE medical assessment. Ms McCulloch showed no obvious signs of medical impairment at that time.

[8] Ms…

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 McGrail

Details

AGLC: Public Trust v McGrail [2023] NZHC 1825
Case: [2023] NZHC 1825
Decision Date: 13 July 2023

CaseChat Overview and Summary

The case before the High Court of New Zealand involves an application for probate in solemn form by the Public Trust, as executor of the estate of Pamela Adrienne McCulloch. The dispute concerns the validity of either the will dated 10 May 2021 (the May Will) or the will dated 1 September 2021 (the September Will). The key issue before the court was whether McCulloch had testamentary capacity at the time she executed the September Will, given the existence of medical evidence suggesting she lacked capacity by then.

The court was required to decide whether McCulloch had the requisite testamentary capacity when she executed the September Will. This involved assessing the evidence presented by the Public Trust, including the medical opinions of Dr Chris Jacques and Dr Kenealy, as well as the testimony of Mr Stevenson, the Public Trustee who had taken McCulloch’s instructions for both wills. The court needed to determine whether McCulloch’s cognitive decline, if any, at the time of signing the September Will, was sufficient to invalidate the will.

The court found that while there was evidence suggesting McCulloch may not have had testamentary capacity at the time of signing the September Will, it was not conclusive. The change in the will, which involved minor amendments to gifts to reflect the changed circumstances regarding the care of McCulloch’s dogs, was rational and explicable. The court accepted that the change did not significantly impact the residuary beneficiaries’ share of the estate and was consistent with McCulloch’s known wishes and intentions. The court was also persuaded by Mr Stevenson’s experienced opinion that McCulloch had capacity at the time of signing the will. Therefore, the court concluded that it was more probable than not that McCulloch had testamentary capacity when she signed the September Will, and it granted probate in solemn form of that will. The Public Trust's costs were to be met from McCulloch's estate.

Orders