Public Trust v White - [2023] NZHC 1608

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2023-470-000063

[2023] NZHC 1608

IN THE MATTER of the Estate of Ethne Isobel Krause

BETWEEN

PUBLIC TRUST

Plaintiff

AND

WARWICK IAN WHITE

First Defendant

STEWART LINDSAY WHITE
Second Defendant A

GRAEME CONWAY WHITE
Third Defendant

ANGELA MAY WHITE
Fourth Defendant

continued: …/2

Hearing: On the papers

Counsel:

G M Cairns and J J Pietras for Plaintiff

Judgment:

27 June 2023

JUDGMENT OF HARVEY J

This judgment was delivered by me on 27 June 2023 at 2pm pursuant to r 11.5 of the High Court Rules.

Date: …………………..
(Deputy) Registrar

Solicitors: Thomas Dewar Sziranyi Letts, Lower Hutt

PUBLIC TRUST v WHITE [2023] NZHC 1608 [27 June 2023]

CIV-2023-470-000063

ROSEMARY ANNE DOWDS
Fifth Defendant

AMANDA SMITH (NEE HILL)
Sixth Defendant

Introduction

[1] Ethne Isobel Krause died on 31 October 2021 aged 96. During her lifetime she signed 14 wills but for present purposes, only two are relevant: one dated 2 July 2009 and another dated 2 May 2019. The two wills are identical, save for the disposal of two personal items, a small round carved table with wood inlay and a tapestry. Under the 2009 will, the table and the tapestry are bequeathed to the deceased’s son Graeme White and her granddaughter, Amanda Smith respectively. The 2019 will divides all household goods equally amongst the deceased’s children.

[2] The Public Trust, being the intended executor of both wills, puts for the Court’s determination the issue of which of the two should be admitted to probate in solemn form. It does so due to the uncertainty concerning whether the deceased had testamentary capacity at the time she executed the 2019 will, and because of a now retracted allegation that the deceased’s decision to no longer gift Ms Smith her tapestry under her 2019 will was because of her son’s undue influence. The Public Trust also applies for orders dispensing with service of the substantive application on the respondents, as they have all consented to it. As they have consented, orders dispensing with service are granted.

[3]The issue for determination is which of the two wills should be probated?

Background

[4] In support of the application is an affidavit from Cassandra Fellows, an employee of the Public Trust and statements of consent to the application by the beneficiaries of the estate. Ms Fellows’ affidavit explains the contents of the 2009 and 2019 wills, the now retracted allegation of undue influence, the deceased’s medical background which gives rise to doubt about her testamentary capacity, and the consent of the deceased’s beneficiaries to the application. Regarding the wills, Ms Fellows explains the deceased’s estate is relatively modest, with net assets of approximately
$507,408, along with a handful of household chattels.

[5] She also confirms, as foreshadowed, that the Public Trust holds 14 of the deceased’s wills but highlights that only two – the 2009 and 2019 wills – are relevant.

Both wills appoint the Public Trust as…

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 White

Details

AGLC: Public Trust v White [2023] NZHC 1608
Case: [2023] NZHC 1608
Decision Date: 27 June 2023

CaseChat Overview and Summary

The case of Public Trust v White involves the estate of Ethne Isobel Krause, who passed away on 31 October 2021. The Public Trust, acting as the executor, seeks to determine which of the two wills executed by Krause should be admitted to probate in solemn form. The wills in question are dated 2 July 2009 and 2 May 2019, with the latter differing only in the bequest of a small round carved table with wood inlay and a tapestry. The 2009 will designates the table to the son Graeme White and the tapestry to the granddaughter Amanda Smith, while the 2019 will divides all household goods equally among Krause's children. The Public Trust raises concerns about Krause's testamentary capacity at the time of executing the 2019 will and a now-retracted allegation of undue influence by her son. The primary issue before the Court is to decide which of the two wills should be admitted to probate in solemn form.

The court examined the medical history of Krause, noting her memory loss and early onset of dementia, particularly after 2018. The court found that Krause's cognitive assessments in May 2018 and October 2018 indicated significant memory issues, with scores of 15 and 17 out of 30, respectively. Despite these findings, Krause executed the 2019 will on 2 May 2019, only six months after the second assessment. However, less than a week later, Krause was certified as unfit by her medical practitioner for the purposes of activating an enduring power of attorney, indicating a rapid decline in her mental capacity. The court concluded that it is more probable than not that Krause lacked the necessary testamentary capacity when she executed the 2019 will.

The court determined that the 2009 will is the only valid last will of Krause. The 2019 will, having been executed when Krause likely lacked testamentary capacity, is invalid. The allegation of undue influence has been retracted and is deemed superfluous due to the court's finding on testamentary capacity. The court ordered that probate in solemn form be granted for the will dated 2 July 2009. The Public Trust's costs for this proceeding are to be met from Krause's estate.

Orders