Public Trust v White - [2012] NZHC 230

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-5287 [2012] NZHC 230

IN THE MATTER OF the will of MINA ANN WHITE late of
Auckland, Retired, Deceased

BETWEEN THE PUBLIC TRUST Plaintiff

ANDETHEL MINA WHITE AND GRAEME LYNDON WHITE
Defendants

Hearing: 20-22 February 2012

Counsel: A Gilchrist for the Plaintiff
GHJ Brant and R Robertson for the Defendants

Judgment: 8 June 2012

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 8 June 2012 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

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

Solicitors / Counsel:
Mr A R Gilchrist, Barrister, Auckland
Mr T Tso, Public Trust, Wellington
Mr GHJ Brant / Ms R J Robertson, Stace Hammond, Solicitors, Hamilton

THE PUBLIC TRUST V WHITE HC AK CIV-2011-404-5287 [8 June 2012]

Introduction

[1] The plaintiff, as executor of the vast will of Mina Ann White, known as Ann White, seeks probate in solemn form. This is because the defendants contend that, when Ann White made the will, she lacked testamentary capacity. The defendants also contend that she was subject to undue influence in relation to the will.

[2] The defendant Ethel White is Ann White’s mother. The defendant Graeme White is Ann White’s brother. As a matter of convenience, and intending no discourtesy, I will refer to members of the White family by their first names. This includes another brother, Ian, who gave evidence.

[3] Counsel are in broad agreement as to the applicable legal principles in respect of testamentary capacity and undue influence. Subject to one point of principle raised by Mr Brant for the defendants, the significant issues, as in most cases of this sort, are issues of fact.

[4] There are two broad issues in relation to testamentary capacity. The first arises from the fact that, when Ann gave instructions to a Public Trust officer to prepare her final will, and when she signed the will, in February 2010, she was dying from cancer. The broad issue arising from this is whether the effects of the cancer, together with the effects of various forms of medication, or the absence of medication, resulted in Ann’s not having testamentary capacity at the relevant time. The second broad issue is whether the provisions of the will, when put into factual context, including provisions of earlier wills, indicate a lack of testamentary capacity.

[5] In respect of undue influence, the primary issue is whether there is any evidence of relevant influence at all.

Testamentary capacity : relevant legal principles

[6] The principles were summarised by the Court of Appeal in Bishop v O’Dea1

as follows:

Legal principles

[3] 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: Re White [1951] NZLR 393

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 [2012] NZHC 230
Case: [2012] NZHC 230
Decision Date: 8 June 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the Public Trust sought to obtain probate of the will of Mina Ann White in solemn form, on the basis that there were challenges to her testamentary capacity and claims of undue influence. The defendants, Ethel White, Ann's mother, and Graeme White, Ann's brother, opposed the application. The primary issue was whether Ann White had testamentary capacity when she made the will, and whether there was any undue influence. The Court found that there was no evidence to support the claims of the defendants. The Court found that there was clear and compelling evidence that Ann White had testamentary capacity when she made the will, and that there was no undue influence. The Court granted the application for probate in solemn form.

Orders