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]

/2

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 executor, provide gifts of $2,000 to each of the deceased’s grandchildren and gift specific items of jewellery to the deceased’s daughters Rosemary Dowds and Angela Hill. Similarly, under both wills, the residue and the remaining household chattels are left to the deceased’s five children equally.

[6]                  On the issue of capacity, Ms Fellows states that the Public Trust have secured the deceased’s medical records dating back to 1 January 2009. She confirms that there is nothing set out in those notes to suggest the deceased lacked testamentary capacity when executing the 2 July 2009 will. Ms Fellows explains however that, from 2018 onwards, it became evident that the deceased started experiencing memory loss and the early onset of dementia. She refers to a Montreal Cognitive Assessment test on 10 May 2018 where the deceased scored 15 out of 30 and the completion of the same test again on 29 October 2018 where she had a slight improvement in score, 17 out of 30.

[7]                  Six months after that test, on 2 May 2019, the deceased signed the 2019 will. Yet on 8 May 2019, less than a week later, she was certified as unfit by her medical practitioner for the purposes of activating an enduring power of attorney. According to Ms Fellows, from that point forward, the deceased’s dementia progressively worsened. By November 2019, she was moved from her home into a dementia care unit in Katikati where she continued to live until passing away on 31 October 2021.

[8]                  As to the issue of consents, Ms Fellows explains that the Public Trust has liaised with the deceased’s children and her granddaughter, Ms Smith, who was to originally receive the tapestry under the 2009 will. All have consented to either the 2009 or 2019 will being admitted to probate given that it makes no real difference to the distribution of the estate as to which will applies. Ms Fellows also confirms that the deceased’s children and her granddaughter, Ms Smith, have consented to the application being determined on the papers.

[9]                  Regarding service, Ms Fellows confirms that an interlocutory application for an order dispensing with service on the respondents has been filed. Copies of the draft proceedings to the respondents have already been provided to them along with the suggestion that they seek independent legal advice before signing any consent. Ms Fellows underscores that the Public Trust does not consider that there would be value

in serving the proceedings on the respondents when they have already consented to the application for probate in solemn form.

The application

[10]              The Public Trust has chosen to bring its application for probate in solemn form under r 27.6 of the High Court Rules 2016. It does so for two reasons. First, concerns that the deceased lacked testamentary capacity at the time she executed the 2019 will. Secondly, that dispositions made under that will were procured because of undue influence - an allegation now retracted.

[11]              Procedurally, the respondents to this application are the deceased’s five children and her granddaughter, Ms Smith, as persons entitled to a grant if the Public Trust does not obtain its grant.1 The Warwick White Family Trust and the Stewart White Family Trust have not been added as respondents, despite being beneficiaries under both of the deceased’s wills, as Warwick White and Stuart White are already named as parties in their personal capacity.

[12]              The Public Trust pleads that both wills were drafted and witnessed by members of its staff who were competent and familiar in dealing with wills and elderly clients. It says that there were no concerns recorded by any of its staff about the deceased’s capacity at the time of taking instructions or witnessing either wills.

[13]              Mr Cairns for the Public Trust submits that, from the deceased’s medical records, it appears that she most likely did not have testamentary capacity when she executed the 2019 will. Counsel contends however that there is no evidence to suggest that the deceased lacked capacity when she signed her 2009 will. Accordingly, in view of the issues raised as to capacity and undue influence, the Public Trust says that it is appropriate for the Court to determine on the papers which will should be admitted to probate in solemn form.

1      High Court Rules 2016, r 27.7.(2)(a).

Discussion

[14]Banks v Goodfellow confirmed the core elements for testamentary capacity:2

As to the testator’s capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them…

[15]              Thus, a testator “must be of sound mind, memory and understanding”.3 As the Court of Appeal said in Woodward v Smith, reformulating what was said in Banks v Goodfellow, it is essential that a will maker be free of any disorder of the mind which would pervert their sense of right or prevent the exercise of their natural facilities.4 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.5

[16]              Plainly, the deceased’s medical history leading up to the execution of the 2019 will raises lack of capacity as a tenable issue. While the onus is on the Public Trust to satisfy the Court that the deceased had capacity, it has submitted instead that it is likely that she did not when she executed the 2019 will. Given the deceased’s earlier experience of considerable memory loss, the early onset of her dementia and the results of her cognitive assessments prior to executing the 2019 will, I consider it more probable than not that she lacked capacity when that will was executed.

[17]              That then leaves the 2009 will as the only possible last valid will of the deceased. As a facially rational will, and in the absence of evidence raising lack of capacity as a tenable issue when the deceased executed that will, she is assumed to have had testamentary capacity when that will was executed. As the allegation of undue influence has been retracted, and is, in any event, superfluous given my finding that the 2019 will is invalid for lack of testamentary capacity, I take that issue no

2      Banks v Goodfellow (1870) LR 5 QB 549 at 567.

3      Re Rhodes (dec’d) HC Wellington CP25/02, 7 March 2002 at [38].

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

5      Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [20] and Bishop v O’Dea [1999] 18 FRNZ 492 (CA) at [3].

further. In conclusion, I confirm that the 2019 will is invalid and that the 2009 will is valid.

Costs

[18]              The Public Trust, being duty bound, placed the two wills before the Court for determination as to which should be granted probate in solemn form.6 It has correctly not taken an adversarial stance other than to appropriately assist the Court to decide which of the two wills should be probated. Accordingly, I consider that the Public Trust’s costs have been properly incurred and should be met from the estate.

Decision

[19]              An order is now issued as sought in the application for a grant of probate in solemn form for the will of the Ethne Isobel Krause dated 2 July 2009.

[20]The Public Trust’s costs for this proceeding are to be met from her estate.

Harvey J

6      Public Trust v Dollimore [2019] NZHC 607 at [39]. See also Re Young, Hobbs v Christchurch City [1968] NZLR 1178 (SC) at 1179 and Re Watson [2014] NZHC 874 at [10]-[13].