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 McCulloch instructed Mr Stevenson about the change of her Will on 16 August 2021. Mr Stevenson attended execution of her September Will two weeks later on 1 September 2021. Mr Johnson was also present at the August meeting. Ms McCulloch told Mr Stevenson that the reason for the change was because, regrettably, Ms McGrail was unable to take her dogs, and at the same time she wanted to increase Mr Johnson’s legacy because he had agreed to care for both of her dogs.

[9]                 Mr Stevenson said that her instructions were clear, and that he had no concerns at that time in respect to the deceased’s capacity. Mr Stevenson understood the changes to make sense, particularly with his historical knowledge of the importance of Ms McCulloch’s dogs to her, and so he did not consider obtaining an updated medical assessment, given Dr Hazelhurst assessed her as having testamentary capacity just three months prior. At the signing of the September Will, Mr Stevenson had no reason to believe that her capacity was diminished (he was not informed of the medical visit by Dr Chris Jacques the day prior, discussed below). The rest home nurse, Ms Meg Coe, was also present when the deceased signed her last Will and did not express any testamentary capacity concerns.

The medical evidence

[10]              Dr Chris Jacques, the rest  home  doctor,  first  visited  Ms  McCulloch  on  31 August 2021, and was concerned about her cognition and that she may have dementia. In his notes, Dr Jacques wrote “Does have some clear signs of cognitive impairment” and “I will defer [EPOA forms] for now until I know Pam a bit better but suspect we will need to sign these at some point”. This visit occurred one day prior to Ms McCulloch’s signing of the September Will on the 1 September.

[11]              A week later, Dr Jacques assessed Ms McCulloch on 7 September 2021 and concluded that Ms McCulloch is mentally incapable because she lacks the capacity to make a decision about “any aspects of her personal care/welfare” which he attributed to dementia. Ms McCulloch’s EPOAs were activated following this assessment. On

signing the EPOA-related forms, Dr Jacques noted “because he/she is not wholly competent to manage his/her own affairs in relation to his/her property” and “Unable to weigh up pros/cons of any issues [or] make informed decisions”.

[12]Dr Jacques has since confirmed to a Senior Solicitor for the Public Trust:

I have reviewed my rest home notes. I saw Pamela on admission to the rest home 31/8/21. Given that this was my first day meeting her, I didn’t complete any formal paperwork on this day. One week later, I completed forms 4/5 to deem her incompetent. Based on this, my best judgement is that on 1/9/21, on the day of signing her will, she was probably not competent to do this.

[13]              Dr Kenealy has subsequently provided a retrospective capacity opinion based on the deceased’s medical notes, including the above notes from Dr Jacques, and the following nursing notes:

(a)   The nursing notes of 11 August 2021 state ‘Pam bit confused this morning’ and ‘she state she can’t remember that (in reference to activities… just completed)’.

(b)   The nursing notes of 23 August 2021 state ‘Pam stated she is missing her dogs but knows she needs to be in care due to the risk of falling’.

[14]              Dr Kenealy concluded that “no will signed after the assessment of 31 August 2021 can be clear of any doubt as to the capacity of Pamela McCulloch at the date of signing it.”

The application

[15]              The Public Trust has made this application under r 27.6 of the High Court Rules 2016. It takes an appropriately neutral stance as to which Will should prevail. However, Mr Cairns for the Public Trust submits that there is sufficient evidence to satisfy the Court that, on the balance of probabilities, Ms McCulloch had testamentary capacity when she executed the September Will.

Applicable legal principles

[16]              The applicable legal principles to the Court’s assessment of testamentary capacity are well settled. The Court of Appeal in Woodward v Smith,1 paraphrasing from Banks v Goodfellow,2 noted that the testator must understand the nature of the act and its effect, and the extent of the property which the testator is disposing, and be free from any disorder of the mind that would, for example, pervert the testator’s sense of right, or influence their Will in disposing of property in a way which, had the mind been sound, would not have been disposed. In particular, the Court said:3

(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.

[17]              In Loosley v Powell,4 the Court of Appeal discussed the onus and standard of proof where testamentary capacity was in doubt, citing the following from Bishop v O’Dea:5

(a)    In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity.

1      Woodward v Smith [2009] NZCA 215 at [19].

2      Banks v Goodfellow (1870) LR 5 QB 549.

3      Woodward v Smith, above n 2, at [19].

4      Loosley v Powell [2018] NZCA 3 at [19]–[25].

5      Bishop v O'Dea (1999) 18 FRNZ 492 (CA) at [3]–[5] (citations omitted).

(b)    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.

(c)    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.

[18]              Where there is doubt about the issue of testamentary capacity, such that the “issue [is] left hanging in the balance” testamentary capacity would not be established.6

Discussion

[19]              In accordance with the above principles, the Public Trust has the onus of satisfying me on the balance of probabilities that Ms McCulloch has capacity at the time of signing the September Will. Also relevant is her capacity at the time of providing instructions to Mr Stevenson on 16 August 2021.7 The Public Trust raises no issue as to her capacity as at the date of signing the May Will as the medical evidence confirms that she had testamentary capacity at that time.

[20]              The Public Trust cites Simpson v Kirkwood,8 in which this Court granted probate to a testator’s last Will, notwithstanding that it was made while the testator had dementia. The testator had testamentary capacity on the basis that the last Will was substantially similar to the two earlier Wills before she was diagnosed with dementia. There was nothing about the last Will that was “surprising” and there was evidence of consistency of intention. The lawyer present at the signing of the last Will had no concern as to her testamentary capacity, observing in a file note that the testator was “reasonably lucid.”9 Those circumstances are very similar to the present case.

6      Public Trust v Coutts [2021] NZHC 3620.

7      See Parker v Felgate (1883) 8 PD 171 which held that if, when instructions were given by a will- maker, that will-maker had testamentary capacity, the will can be valid notwithstanding a loss in testamentary capacity by the time of execution of the will. Parker v Felgate was accepted by the High Court in Tansley v Trustees Executors and Agency Co of New Zealand HC Wellington CP698/92, 17 March 1994 at 5; and Re Prasad [2012] NZHC 1489 at [97(e)].

8      Simpson v Kirkwood [2019] NZHC 454.

9 At [9].

[21]              The medical evidence here, from Dr Jacques and Dr Kenealy raises the issue as to Ms McCulloch’s capacity at the time of her instructing and signing the September Will. Dr Jacques’ concluded she ‘probably’ did not have capacity, and Dr Kenealy could not conclude that she did have capacity, clear of any doubt on the basis of her medical records. This medical evidence is not conclusive. Neither doctor assessed Ms McCulloch’s testamentary capacity on either 16 August 2021, or 1 September 2021, when she signed the latter Will.

[22]              Notwithstanding the doubt expressed in the medical evidence, I am satisfied on the balance of probabilities, that is, it is more probable than not, that Ms McCulloch had testamentary capacity on these two critical dates. In particular, it is compelling that the change to the Will is both rational and fair given the change in the circumstances of Ms McGrail, who could no longer look after Ms McCulloch’s dogs. The change is also relatively minor and explicable.

[23]              The September Will merely amends Ms McCulloch’s provision of a gift to two persons, to reflect the change in circumstances relating to the care of Ms McCulloch’s dogs, when she entered the rest home. I accept, as the Public Trust submits, that the minor change in legacies is logical, and the difference does not have any significant impact on the residuary beneficiaries’ share of the estate.

[24]              I have given significant weight to the views of Mr Stevenson, who knew Ms McCulloch for many years; had previously taken her Will instructions; and is experienced in this field. Mr Stevenson, and the nurse present, both made a reasonable assumption as to testamentary capacity, given the minimal change between the two Wills.

[25]              For these reasons, I am satisfied that Ms McCulloch had testamentary capacity on 1 September 2021, and that the September Will is valid.

Costs

[26]              The Public Trust, in accordance with their duty, placed the two Wills before the Court for determination as to which Will should be granted probate in solemn

form.10 The Public Trust has not taken an adversarial stance, and it was reasonable for it to consider that Ms McCulloch’s testamentary capacity was in issue. The Public Trust’s costs for this proceeding are to be met from the estate of Ms McCulloch.

Result

[27]              I grant probate in solemn form of the Will of Pamela Adrienne McCulloch dated 1 September 2021 and an order to that effect is made.

[28]The Public Trusts costs are to be met from her estate.

Cull J

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt, for plaintiff

10     Public Trust v Dollimore [2019] NZHC 607 at [39].