Public Trust v Niemann - [2024] NZHC 934

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002268

[2024] NZHC 934

IN THE MATTER of the Estate of ROSE LAURA FAUSER of Auckland, Retired (Deceased)

BETWEEN

PUBLIC TRUST

Plaintiff

AND

RAELENE NIEMANN

First Defendant

PHOEBE LILLIAN URLICH
Second Defendant

ALONA MAUD COVICH

Third Defendant

PUBLIC TRUST, as Executor of the Estate of ALAN RAYMOND FAUSER

Fourth Defendant

Hearing: 18 April 2024

Appearances:

G M Cairns for Plaintiff

A W Johnson for Defendants

Judgment:

26 April 2024

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 26 April 2023 at 12.00 pm pursuant to r 11.5 of the High Court Rules 2016.

……………………………… Registrar/Deputy Registrar

Solicitors:Thomas Dewar Sziranyi Letts, Lower Hutt Martelli McKegg, Auckland

PUBLIC TRUST v NIEMANN [2024] NZHC 934 [26 April 2024]

[1] Public Trust is the named executor of two wills executed by Mrs Rose Fauser. It applies for grant of probate in solemn form for the will dated 6 April 2016 (Last Will). If the Court determines Mrs Fauser did not have the requisite capacity to make the Last Will, Public Trust seeks a grant of probate of Mrs Fauser’s earlier will, dated 6 October 2010 (Previous Will). The Public Trust brought the proceeding because of a potential challenge to Mrs Fauser’s testamentary capacity when she made the Last Will on 6 April 2016.

[2] The second and third defendants, Ms Phoebe Urlich and Ms Alona Covich, filed notices of appearance. They reserved their rights in the event that another person became a party to the proceeding or took any step against their interest. No such steps have been taken.

[3] Accordingly, I heard the Public Trust’s application in a formal proof hearing. Mr Cairns for the Public Trust advised that the present value of the estate is in the vicinity of $110,000.

The wills

[4] Public Trust is named as executor in both the Last Will and the Previous Will which have been put before the Court.

[5]Mrs Fauser’s Last Will gives:

(a)a one third share of the estate to her husband’s sister, Ms Raelene Niemann (the first defendant);

(b)a one third share of the estate to her sister, Ms Urlich; and

(c)a one third share of the estate to her late brother’s wife, Ms Covich.1

1 The Last Will refers to Ms Covich as being Mrs Fauser’s husband’s wife. This is patent error. Moreover, it is clear from the drafting notes that Mrs Fauser was well aware that Ms Covich was her late brother’s wife.

[6] The Previous Will gives the entire estate to Mrs Fauser’s husband, Mr Alan Fauser, if he survives her by 30 days. If he does not, by the terms of the Previous Will the estate goes to Ms Niemann and Mrs Fauser’s brother, Mr Ivan Covich. However, Mr Covich had died by the time Mrs Fauser prepared the Last Will. Hence as at the time Mrs Fauser executed her Last Will, the substitutional gift under the Previous…

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.

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Details

Case: [2024] NZHC 934
Decision Date: 26 April 2024

CaseChat Overview and Summary

The High Court of New Zealand considered a matter concerning the testamentary capacity of Mrs Rose Laura Fauser when she executed her will on 6 April 2016. Public Trust, as the named executor of Mrs Fauser's will, applied for a grant of probate in solemn form for the Last Will. In the event the Court found Mrs Fauser lacked the requisite capacity to execute the Last Will, Public Trust sought a grant of probate for the Previous Will dated 6 October 2010. The defendants, Raelene Niemann, Phoebe Lillian Urlich, and Alona Maud Covich, reserved their rights but did not take any action against the proceeding. The central legal issue was whether Mrs Fauser had testamentary capacity when she executed her Last Will on 6 April 2016. Testamentary capacity requires a sufficient understanding of the act of making a will, the effect of doing so, the extent of the property being disposed of, the moral claims to which the will-maker ought to give effect, and freedom from any disorder of the mind that might distort feelings or judgement relevant to making a will. The court gave weight to the medical evidence but also considered the views of the Public Trust officer who witnessed the execution of the will and had previous dealings with Mrs Fauser. The officer did not raise concerns about Mrs Fauser's capacity when she executed the will. The court found that the changes in the Last Will were rational and reasonable and that the general practitioner's retrospective opinion that Mrs Fauser lacked capacity was not determinative. The court concluded that, on the balance of probabilities, Mrs Fauser had testamentary capacity when she executed the Last Will.

The High Court granted probate in solemn form to Mrs Fauser's Last Will dated 6 April 2016.

Orders