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 (CA) and Peters v Morris 19/5/87, CA99/85.

[4]       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: Public Trustee v Bick [1973] 1 NZLR 301 and Peters v Morris (supra).

[5]       That  onus  must  be  discharged  on  the  balance  of  probabilities: Watkins v Public Trustee [1960] NZLR 326 (CA). Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.

[6]       In order to establish capacity, when in issue, those seeking probate must demonstrate the maker of the will had sufficient understanding of three things:

(a)       That he or she was making a will and the effect of doing so ("the nature of the act and its effects");

(b)       The extent of the property being disposed of; and

(c)       The moral claims to which he or she ought to give effect when making the testamentary dispositions.

These three matters derive from the leading authority of Banks v Goodfellow (1870) LR 5 QB 549 as cited by this Court in Ranby v Hooker 16/9/97, CA172/96, and in Peters v Morris (supra).

[7]       If incapacity before the making of the will has been established, those seeking probate must show the will was made after recovery or during a lucid interval. In such a case the will is regarded with particular distrust and there is, in the first instance, a strong presumption against it, particularly if it displays lack of moral responsibility in the nature of the dispositions: 4

Halsbury's Laws of England, vol17 at para 904.

1 Bishop v O’Dea (1999) 18 FRNZ 492 (CA) at 493-494 per Tipping J.

[7]      The plaintiff accepted that lack of capacity was raised as a tenable issue.  It is for this reason that the plaintiff has sought probate in solemn form.  I apprehend that this decision was based in considerable measure on the evidence of Dr Alan Farnell. Before the proceeding was issued Dr Farnell, at the request of the defendants, provided an opinion based principally on consideration of Ann’s medical records.

[8]      Mr Brant, for the defendants, submitted that the observation in Bishop v O’Dea at [7] has relevance in this case.  I am satisfied, having regard to all relevant evidence, that it is not a point that requires particular consideration.

[9]      Mr Brant conceded in closing that the plaintiff had met the onus on it of establishing the first two of the three elements noted at [6] in Bishop v O’Dea.  I am satisfied that that was a proper and responsible concession.  In consequence, it is not in issue that Ann understood that she was making a will and the effect of doing so, and that she understood the extent of the property she was disposing of.  The issue in this case, in relation to testamentary capacity, is whether the plaintiff has established the third element: that Ann had sufficient understanding of the moral claims to which she ought to give effect when making the will.

[10]     Reasonably founded moral claims of others correspond to moral obligations of the testator.   In this case the defendants contend that the primary testamentary moral obligation of Ann was to her mother.  The question then is whether, on the facts of this case, assuming Ethel had a moral claim to at least a share of her daughter’s estate, Ann understood that there was such a claim.   The question is whether there was sufficient understanding of the claim.  The question is not whether the claim was met, or whether provisions actually made were reasonable.

[11]     Mr Brant submitted, on the question of understanding of moral claims:

… [B]ecause matters of moral claim and the corresponding duty are matters of natural instinct and affection, the third element [in Bishop v O’Dea at [6]] is principally driven by matters of emotion and relationship as opposed to cognitive ability as required in [the first two elements in Bishop v O’Dea].

[12]     I do not agree.  “Cognitive ability”, which may be taken to be a synonym for “sufficient  understanding”,  is  the  critical  consideration.     Mr  Brant  was  not submitting that cognitive ability is irrelevant.  But the defendant’s case on this aspect was founded in substantial measure on a proposition that Ann should have been principally driven by emotion and relationship.  The submission flowing from this was that the fact of the relationship between Ann and her mother, coupled with emotion in that regard, should then have resulted in provision for Ethel; that the absence of such provision for Ethel, given the emotional and relationship drivers, is an indicator of lack of testamentary capacity.  “Emotion”, in the sense of bonds of affection, are part of what is contained in relationships which lead to moral obligations.  But this is different from a proposition that a testator’s assessment of moral obligations should be principally driven by emotion.   In Bosch v Perpetual

Trustee Co Ltd,2  a case under the New South Wales equivalent of what is now the

New Zealand Family Protection Act 1955, the Privy Council, when referring to the moral duty, said that it was to be assessed objectively on the basis that the testator was “wise and just, rather than fond and foolish”.  The observation derives from an earlier New Zealand case,3  and has been applied many times in subsequent New Zealand cases.  To a considerable extent, Mr Brant’s submission, which was central to the defendants’ case, is contrary to this test.  And in family protection cases it is the test for the court’s central enquiry as to whether the moral duty was breached. Such an enquiry is relevant to, but not central to, a case concerning testamentary

capacity.

[13]     Mr Brant used the word “relationship” in reference to family relationships, and in this case principally the relationship between Ann and her mother.   Family relationships will often be central to this part of the enquiry.  But that is not a matter of legal principle.  It is a question of fact.  If there are family relationships, there may also be other relationships.   And it may be that other relationships give  rise to stronger moral obligations or stronger moral claims than family relationships.

[14]     A will which does not make provision for those to whom the testator had moral obligations is evidence which needs to be weighed.  When weighed with other

2 Bosch v Perpetual Trustee Co Ltd [1938] AC 463; [1938] 2 All ER 1.

3 Allardice v Allardice (1910) 29 NZLR 959.

evidence it may mean that the person seeking probate will not meet the onus of proof of testamentary capacity.  Counsel referred to cases on the point.4   It is unnecessary to discuss the facts of the various cases.  They illustrate the application of the general principles to the particular facts in each case.  What they do indicate are some broad considerations which need to be borne in mind.  The question of moral obligation should not proceed on the basis of untested assumptions as to whom the testator may

have owed moral obligations.   If this is an issue, the court must make some assessment, but it is an assessment directed to the question of testamentary capacity. If there is evidence indicating that provision was not made for someone to whom there may have been a moral obligation, the relevance of this to the question of testamentary capacity will depend, amongst other things, on a broad assessment as to whether moral obligations were also owed to others.   The task for the court is to determine whether the testator had sufficient understanding of the moral claims that others may have had, not to determine whether provision should have been made for those others.

Factual background

[15]     Ann was born on 18 August 1946.   She was 63 when she died.   She is survived by her mother, Ethel, and her two brothers, Graeme and Ian.  Ann had no husband, other partner or children.

[16]     Graeme described his sister’s adult life as follows:

2.1Ann was a quiet person, very private and fiercely independent.  She was employed by the Inland Revenue Department and was, throughout her life, a very hard worker.  I would describe her as a workaholic.   She had high ethical standards and was quietly determined.  She was also highly stressed by the nature of her work and by some of her relationships with supervisors.

2.2Ann mainly socialized [sic] with a close circle of long term friends, including Raihi Taylor, who she had known since her schooldays. She kept fit with tramping, line dancing, walks and gardening.

4 Banks v Goodfellow (1870) LR 5 QB 549,563; Squires v Nijsse HC Auckland, CIV-2002-404-1618,

12 December 2003, Baragwanath J; Puru v Puru HC Auckland, CIV-2007-404-3881, 5 November
2008, Wylie J; Re Rhodes (deceased) (alt cit Stewart v Meads) HC Wellington, CP25/02, 7 March
2002, Hammond J; Bishop v O’Dea (1999) 18 FRNZ 492 (CA)at [21].

[17]     Ann was diagnosed with cancer of the colon in May 2006.  By January 2007 the cancer had moved to her liver and in May 2007 a large portion of her liver was removed.  By mid 2008 the cancer had moved to her lungs.

[18]     On 8 February 2010 it was confirmed that the cancer had moved to her lower spine.   There were a number of medical and related consultations in January and February 2010.   Some of these will require further consideration because the instructions for the final will were given to a Public Trust officer on 18 February

2010 and the final will was signed on 22 February 2010.  Evidence relating to her state of mind on these two dates is the evidence of most relevance in this case.  I will come back to the provisions of the will, and of two earlier wills.

[19]     On 18 February 2010 Ann also gave instructions to the Public Trust officer for preparation of an enduring power of attorney in favour of Graeme.  This was also signed on 22 February 2010.

[20]     Ann spent two weeks at the North Shore Hospice in April 2010 for pain relief.  She was admitted to the Hospice again on 10 June 2010.  She died there 13 days later.

The last will and two prior wills

[21]     There is evidence of three wills and instructions for those wills.  All of these wills were prepared by an officer of the Public Trust Office, as it was, or of the Public Trust.  The Public Trustee was appointed executor and trustee of the first two wills.

[22]     The first will is dated 18 December 1981.   Ann was aged 34.   The entire residue, after payment of debts and usual expenses, was left by Ann to her mother, then aged approximately 50.  There was a proviso that if Ethel did not survive Ann the residue was to go in equal shares to Ann’s nieces Joanna and Katrina White.  The instructions for preparation of the will include a note – “father dead – mother is in need”.

[23]     The second will is dated 19 June 1997. Ann was then aged 50 and her mother

74.  The entire residue was left to her mother, with a proviso that if Ethel died before Ann, the residue was to go equally to all of Ann’s nieces and nephews.  Three nieces born at that time were named.  They are children of Graeme and Ian.  There do not appear to be any relevant instructions or explanations from Ann in the records of the Public Trust Office.

[24]     When the final will was made on 22 February 2010 Ann was aged 63 and

Ethel was aged 89. The relevant disposing provisions of the will are as follows:

(a)      There are legacies of $25,000 to each of three named nieces and one named nephew provided each was living at Ann’s death and attained the age of 25 years, with gifts over to any children of those nieces and nephew.\

(b)      There are three legacies to friends: $50,000 to Raihi and Bruce Taylor,

$25,000 to Yvonne Skellern, and $25,000 to Jillian Johns.

(c)      Chattels, cars and personal effects are given to Graeme with a request, not imposing a trust, that he distribute these items amongst himself and family members as he sees fit.

(d)The residue, after payment of debts and usual expenses, is left as to one-half share to North Shore Hospice Trust and as to the other half share to Cancer Society of New Zealand Inc.   The residue is approximately $570,000.

[25]     The instructions for the final will were given by Ann to Margaret Davies on

18 February 2010.  Margaret Davies is a senior relationship adviser with the Public Trust.   Ms Davies’ evidence relating to Ann’s testamentary capacity is noted later. Ms Davies produced a copy of the will together with three documents prepared for the purposes of completing the will.  These documents are noted in the next three paragraphs.

[26]     There is a document headed “will instructions”, being the instructions taken by Ms Davies from Ann on 18 February 2010.   The document is a Public Trust standard form of four pages.   It sets out a range of information required to be obtained, with further pages for notes.  The handwritten part of the document is in the handwriting of Ms Davies.  It is not in issue that this records the instructions given by Ann. There is a clear record of the principal assets, with estimates of value, being Ann’s home at $350,000, bank deposits of $400,000, shares valued at $30,000, a car with no value stated, and bonus bonds of $300.  Personal particulars are recorded. There are funeral  instructions  for cremation  and  no  funeral  service.   The same funeral instructions were in the 1997 will.

[27]   Under “disposal of assets” there is a handwritten note recording clear instructions, as reflected in the final will.   Part 15 of the standard form has sub- headings  relating  to  “Family  Protection  Act”,  “Testamentary  Promises”  and “Property (Relationships) Act”.  In respect of the Family Protection Act it is recorded that this was explained to Ann.  There is a handwritten note: “Mother now removed Elderly/financially   independent”.      There   are   notations   that   there   were   no testamentary promises and that the Property (Relationships) Act had no application.

[28]     The final part of the standard form has two pages of notes made by Ms

Davies. The notes include the following:

Mother 89 – financially independent and elderly

…

Preference [for]5 friends – not brothers

Immediately following the  reference to  “friends  –  not brothers” there is  a note “$100,000”, followed by the names of the friends who received the legacies, with their addresses.   In respect of the gift of residue to the Cancer Society there is a handwritten note:

Without creating a binding trust it is my wish that this donation be used for bowel cancer awareness.

5 The word in the document has what appears to be shorthand, which I assume stands for “for” or a

similar word.

This provision is contained in the will in essentially the same terms.

[29]     The second document is what appears to be a computer generated record made on 19 February 2010.   It is headed “Questionnaire for the will of White, Mina A”.   At the end of the document it is recorded that the questionnaire was created by Margaret Davies on 19 February 2010.  It is a more formal record of the handwritten instructions inserted in the will instructions form just referred to.  It has some additional detail on a range of matters, all of which was provided by Ann, including things such as bonus bond numbers and a KiwiSaver reference.   In the section relating to the Family Protection Act 1955 there is a typed question: “Do you wish to record a note (which will not appear in your Will) of your reasons in case of a later claim under the Act?” with “no” indicated.

[30]     The third document is headed “Statement to Accompany my Will”.   It was signed by Ann.   It is dated 22 February 2010.   It again records that the Family Protection Act had been explained, that there had been no testamentary promise, and that information concerning the Property (Relationships) Act had been provided.

The witnesses and their evidence

Plaintiff’s witnesses

[31]     There were ten witnesses for the plaintiff.  It is unnecessary to refer to the evidence of one witness, Jane Haddock.   The remaining witnesses fall into two groups.   The first consists of four friends of Ann.   The second consists of five independent witnesses, with all of these bringing different types of expertise or experience bearing on the question of testamentary capacity: Margaret Davies, the Public Trust officer; Dr Eugeen Ong, a general medical practitioner; Dr Paul Thompson, an oncologist; Sasha Pilkington, a registered psychiatric nurse; and Bernadette Cheyne, chaplain at the North Shore Hospice.

[32]     All of these witnesses, apart from Ms Cheyne, provided clear evidence that, at around the time Ann White gave instructions for her final will and signed it, she did not display signs of any cognitive impairment or inability to understand things

relating to her own affairs or the affairs of others.  They gave positive evidence that she was mentally competent.

[33]     The evidence of Ms Davies is central because she took the instructions for the will and attended on Ann when she signed the will four days later.  Ms Davies had had 24 years experience as a relationship adviser at Trustees Executors Ltd and then the Public Trust, with 12 years experience, up to 2010, in taking instructions for and completing  wills.    She  said  she  clearly  remembered Ann  because  part  of  their conversation concerned the fact that Ann was making a new will because she was terminally ill.  Ms Davies said:

… We had a very open conversation about her situation and her struggle to come to terms with her illness being terminal and the treatment involved. She was lucid and clear in both her general discussions and in all of her instructions about her Will and her Estate.

Ann advised me that she was updating her Will to recognise close friends who she had a closer relationship with than her family.  She was removing her mother who she advised that, at 89 years of age, was financially secure. There was nothing in her demeanour, apparent health, or discussions that gave me any cause for one moment to challenge Ann’s understanding of what she was doing, her Estate, or her capacity to make the decisions that she proposed making.

…

Although not medically qualified, I have, over the last 12 years, prepared a number of Wills for various parties and have, on occasions, had some cause to question capacity.  Where capacity is or may be an issue, the Public Trust and prior to that Trustees Executors Limited would normally attend to obtaining a Medical Certificate before proceeding to finalisation of the Will. There was absolutely nothing in my dealings with Ann that led me to believe that this was an issue in this particular case. As far as I was concerned, there was no cause to doubt her capacity.

[34]     Dr Ong obtained medical qualifications in 1999 and commenced practice as a general practitioner in 2002.  Ann became his patient in January 2010.  He first saw her on 20 January 2010.  There were further consultations in 2010 on 2 February, 17

February (the day before the will instructions were given), 12 March, 30 March, 30

April and 25 May. [35]  Dr Ong said:

… I did not see her acting in a mentally impaired manner at any stage or at any time until she died.   In my professional opinion, the Deceased would have  been  fully  aware  of  what  she  was  doing  and  fully  aware  of  the decisions she was making, in February 2010; and indeed right up until she died.

…

I had never been concerned about the state of mind of the Deceased.  I found her to be clear, lucid and aware of what was happening.   It is true that towards the end … she was anxious and scared of dying.   However, even then, she was fully aware of what was happening and at no time ever gave any indication that she was not fully competent and aware of all of her actions.

She was always alert and able to discuss with me in a fully informed way about her pain management, how her treatment was progressing and in particular she was able to discuss and describe accurately the amount of pain relief she was taking.

[36]     Dr  Ong  referred  to  the  three  elements  of  testamentary  capacity  (as summarised in Bishop v O’Dea6), stating that he had been told that those three things must exist for a person to have testamentary capacity.  He then said:

I have been asked in my expert opinion as a doctor whether or not I consider the Deceased met the above test in February 2010.  From my experience and encounters with the Deceased I am fully satisfied and I have no reason to doubt that the Deceased would have known exactly what she was doing at the time she made her Will and, therefore, would have met the foregoing test.  On her visit to me in January 2010, her subsequent visit on 2 February

2010 and her later visits on all occasions she presented to me as a person fully in control of her mental faculties.

[37]     Dr Ong’s notes for the consultation on 17 February 2010 refer to the fact that Ann had been taking an additional dosage of morphine elixir and “has been a bit fuzzy in head with it”.   In cross-examination Dr Ong did not accept that this and other matters were indicative of some cognitive impairment.   He was also cross- examined on, amongst other things, a report written by a palliative care specialist at North Shore Hospice dated 28 January 2010.  It is a report of two and a half pages, but

the focus was on the conclusion, including the following:

6 See n 1 above.

Overall Ann has significant psychological distress which is making her pain control  quite  challenging …  the  Community Palliative  Care  Nurses  had discussed the possibility of an admission to the In-Patient Unit, primarily for psychological support. … She identified that she was felling depressed at times and in particular feeling cheated about losing the latter part of her life. She has not had any anti-depressants and it may be appropriate to consider anti-depressant treatment after further assessment.

Dr Ong did not accept propositions to the essential effect that matters of this nature recorded in this report, and in some of the other medical records he was referred to, required some modification of his conclusion that Ann had testamentary capacity.

[38]     Dr Thompson is the Clinical Director of the Medical Oncology Department at Auckland City Hospital and Auckland District Health Board.   He was one of the oncologists responsible for Ann’s treatment.   Dr Thompson said he saw Ann on “many occasions”.  This included clinic appointments on 11 February and 25 March

2010.  Reports concerning Ann were also sent to Dr Thompson.  These included, in particular, the report of 28  January 2010  (noted above at [37]) on which some considerable emphasis was placed by Mr Brant.

[39]     Dr Thompson said:

… There is nothing in my recollection of any of those visits, in any of my own notes of any meetings over this period, or in any notes of the other health practitioners who actually saw her around this time to suggest that she suffered from any form of mental incapacity when she made changes to her Will.

Had I had concerns about her mental capacity, I would have noted that in the notes. The fact that I did not means that I had no such concern.

Whilst Ann was clearly psychologically distressed with the realization [sic] of the terminal nature of her illness, I do not believe that that is a reason in and of itself to suggest that she was not of sound mind. …

In my experience, Ann was able to participate in very detailed discussions concerning her medical condition in the appointments both immediately before and after 18 February 2010, and there was no clinical sign of confusion, and certainly no reason to formally test her mental state at the time. …

[40]     When Dr Thompson saw Ann on 11 February, she was accompanied by her brother Graeme.  Dr Thompson said:

I certainly remember the appointment of 11 February 20107 well, as this was the first appointment of which Ann’s brother had come with her.  I reiterate that  there  was  nothing  to  suggest  that  she  had  any  degree  of  mental incapacity.  No issue was raised with me about her capacity by her brother.

[41]   Sasha Pilkington is a registered nurse.   She qualified as a registered comprehensive nurse in 1984.  After 18 months she moved to what she described as the psychiatric nursing field, where she has remained.   By 2010 she had therefore had around 24 years experience in psychiatric nursing, which in her case includes counselling, apart from what she described as “a brief period out of the workforce” when she had children.

[42]     From 2009 (possibly earlier) Ms Pilkington worked as a counsellor at the North Shore Hospice.  Ms Pilkington produced a copy of her diary notes of meetings and some telephone discussions she had with Ann.  The first recorded meeting was on 16 September 2009 when she met Ann and showed her around the hospice. There is a record of meetings in 2010 on the following dates: January 1; February 3 and 19; March 3 and 19; April 1, 8, 9 and 14; May 20; and June 3, 11 and 17.  There was a number of telephone discussions, including on 3, 11 and 12 February 2010.  Some of the latter may have been  meetings,  but  the diary entry simply records  that  Ms Pilkington spoke to Ann.

[43]     Ms  Pilkington  said  that  she  had  been  informed  that  Ann  had  given instructions for a new will on 18 February and signed the will on 22 February 2010. She continued:

Although it is not recorded in my diary notes, I do recall Ann telling me, on the 19 February 2010 meeting, that she had changed her will the previous day.  I have no doubt from my discussion with her that she knew what she had done, that she knew what was in her estate, and she knew the consequences of her actions.   I have no doubt that she had a steady and sound mind.  During this discussion, there was no confusion by her, and I believe that she was mentally alert.  I had no concerns about her capacity, and did not in any way think she was mentally incompetent. … She did mention to me that one of the reasons for the change [to her will] was that her mother was now older, and she felt that Graeme was well off, and she preferred to leave money to Ian’s children, rather than directly to him.   I think Ann felt that she had longer to live than she did, advising that she did

7 Dr Thompson’s affidavit in this paragraph recorded the date as 10 February 2010. In another paragraph he referred to 12 February 2010. In his evidence in court he confirmed the date as 11

February 2010. Nothing turns on these minor errors.

not think her mother would need anything because either Ann would outlive her mother, or if her mother outlived her, it would not be for a particularly long period.

[44]     The chaplain, Ms Cheyne, had no clear recollection of Ann at the hospice in February 2010.  She does recall meeting Ann at that time and believes that because she has no clear recollection this indicates that she did not have any concerns about Ann’s “capacity or mental state” at the time.  Ms Cheyne did have clear recollection of contact with Ann when she returned to the hospice in June 2010.  She said she spent a lot of time talking to Ann and said:

Throughout all of those discussions, I believe that she was quite lucid, and I had no doubts whatsoever about her capacity (save for the very last few days of her life immediately before she died).   I believe she fully understood herself, her illness, the consequences, and those around her … Over the years, I have dealt with many people as they face death, and had experience about peoples’ degree of control and lucidity.  I had no concerns at all about Ann’s capacity or understanding at any stage, other than the last few days immediately prior to her death.

[45]     The remaining witnesses for the plaintiff were Raihi Taylor, Jillian Johns, Yvonne Skellern and Alicia Tecson.   Ms Taylor had been a friend of Ann for 45 years.  Ms Johns and Ms Skellern had been friends of Ann for around 20 years.  Ms Tecson worked with Ann at the Inland Revenue Department from 2000.  Ann was Ms Tecson’s supervisor.  They also became friends.  Ms Taylor, with her husband, is the  beneficiary  of  the  gift  of  $50,000.    Ms  Johns  and  Ms  Skellern  are  the beneficiaries of the gifts of $25,000 each.

[46]     Ms Tecson, as a fellow employee, saw Ann daily during working hours for, as she put it, “almost a decade”. They also met occasionally outside of work. The three other friends saw Ann reasonably frequently, including during February 2010.  Ms Taylor said, for example, that they would have lunch weekly and, as Ann’s illness progressed, she spent more and more time with her at her home.  Ann’s friendship with Ms Johns and Ms Skellern was a shared friendship and the three of them met most weeks for lunch.  Ms Skellern said, referring to herself and to Ms Johns, that after Ann got cancer the two of them made sure that they saw Ann every week or, if that was not possible, contacted her by phone.

[47]     The evidence of all four witnesses was to the same essential effect: Ann was at all times, until the very end, mentally alert, competent and lucid; there was no deterioration in Ann’s mental capacity at any relevant time.

[48]     It  is  unnecessary  to  record  the  relevant  parts  of  the  evidence  of  these witnesses other than one part of the evidence of Ms Tecson.   I do so because Ms Tecson had lunch with Ann on 18 February, the day Ann gave instructions for the final will.  Ms Tecson said:

I recall that, in February 2010, I had lunch with her.  I cannot recall the exact date, but I do recall that when we had lunch, Ann advised me that she had just come from the Public Trust, where had had made arrangements with regard to her Will.  She was entirely lucid, and I had no concerns whatsoever about her capacity.

We had a detailed conversation about the pains and sickness that she was suffering, as well as other “normal” matters, including people that we knew. I had absolutely no concern or doubt whatsoever that she was in full control of all of her faculties, and knew exactly what she was doing.

Other than saying that she had just come from the Public Trust, she did not mention what she had done with regard to her Will – and I did not ask.

Defendant’s witnesses

[49]     The evidence for the defendants was from Ethel, Graeme and Ian White and

Dr Farnell.

[50]     The evidence of the Whites concerned two broad topics.  The first was direct evidence of Ann’s dealings with them which were said to indicate deterioration of her mental capacities.  The other broad category of evidence related to the provisions in the final will compared with provisions in the earlier wills, discussions Ann had with family members relating to provisions she intended to make and, connected with this, evidence relating to Ethel’s financial circumstances.  I will outline relevant aspects of this evidence when discussing my conclusions on the evidence as a whole.

[51]     Dr Farnell obtained medical qualifications from the University of Otago in

1973.  He was admitted as a Fellow of the Royal College of Anaesthetists in 1978 and as a Fellow of the Faculty of Palliative Medicine of the Royal Australian College

of Physicians in 2000.  Dr Farnell practices in the Waikato as a specialist in pain and palliative  care  and  as  an  anaesthetist.    He  is  a  visiting  consultant  in  palliative medicine and the clinical director of the chronic pain service for the Waikato District Health Board.   Dr Farnell bought a range of qualifications and experience to his evidence and, in particular, his qualifications and experience in caring for patients with terminal illnesses.

[52]     Dr Farnell was instructed as an expert witness on behalf of the defendants after Ann had died.  His evidence was based in part on his consideration of medical records, and other documentary evidence relating to Ann.  As Dr Farnell put it, his analysis focused primarily on records made or kept by Dr Ong, the North Shore Hospice and the oncology specialists at Auckland Hospital.   In preparing his evidence-in-chief, contained in an affidavit, Dr Farnell did not speak to Dr Ong, Dr Thompson, or any of the other doctors or nurses who made the records that were considered by him.  Nor did he speak to Ethel, Graeme or Ian White, any of the other witnesses for the plaintiffs, or any other person who had had dealings with Ann White at relevant times.  However, he had read an affidavit of Graeme which had been made by Graeme before this proceeding was issued, and which became part of Graeme’s evidence in this proceeding.   Dr Farnell did not expressly refer to this affidavit as one of the documents he referred to, but in the course of his evidence he refers to documents attached to Graeme’s affidavit.   Graeme’s first affidavit was sworn on 8 April 2011 (and there were affidavits of Ian and Ethel sworn on 4 and 8

April 2011 respectively).   Dr Farnell’s affidavit was sworn on 8 June 2011.   The

proceeding was commenced in August 2011.

[53]     Dr Farnell described his instructions as follows:

I was asked … to review the records of Ann’s medical condition at the time she made her Will, and to comment on factors revealed in those records which indicate her likely level of testamentary capacity at that time and whether   there   was  evidence  from  a   medical  perspective   of  “undue influence”.  I comment on medical factors and the effects on “personhood”. The latter phrase is a term which I use to describe personality or behavioural change which may be affected by medication, persuasion (even if well meaning) or inordinate life stresses.

[54]     Dr Farnell’s broad conclusions may conveniently be summarised in his own

words;

In reviewing the records I identified two areas for concern.   The first is medical evidence suggesting to me that Ann had diminished testamentary capacity at the time she made the Will.

The second is evidence of effect on “personhood”, including factors which are likely to have weighed on her mind unduly or disproportionately at the time she made her Will.   Such factors include the varying advice she was receiving throughout her illness and her own response to that advice, including  that  taken  from  alternative  health  practitioners.    Evidence  of adverse effect on personhood also includes evidence that the various drugs she was taking affected her reactions, modes and decision-making processes. The two areas, medical and personhood, interrelate and I do not specifically separate them in the sections which follow.

[55]     Dr Farnell then set out in detail, by reference to a range of records and other information, the reasons why he came to these conclusions.  These are conclusions based on, in particular, the nature of Ann White’s illness, the types of medication she was taken, the consequences of withdrawal from some medications where there was evidence of Ann’s ceasing medication abruptly, the effects of alternative medicines and in particular St John’s Wort, and indications from specific medical tests such as liver function tests.  The observations in respect of alternative medicines were in fact based not on medical records but documents which apparently came from providers of  alternative  medicines  or  therapies,  and  some  emails,  attached  to  Graeme’s affidavit.

[56]     Dr Farnell placed emphasis on the use of what is called a Mini Mental State

Examination.  He said:

In my experience doctors are generally reluctant to use these tests of mental state unless they feel there is good reason to do this.   Good reason would include a change of behaviour, behaviour which was out of the ordinary for the patient, excessive stress, anxiety or other affective symptoms.

For myself, as my experience has grown I have come to rely more and more on formal testing of mental status rather than on my own assessment.  We now have vast knowledge about the adverse effects of medication, disease, organ failure, family pressures and outside pressures on our patients.  Ann’s records indicate that she experienced many of those factors.  In my view, had Ann’s GP or the Hospice specialist medical staff known that Ann proposed to make a new Will they would have been on notice to ask her more about it to satisfy themselves that the change was not proposed due to any pressure or to medical complications such as delirium.

[57]     Dr  Farnell  questioned  evidence  of  Dr  Ong  in  an  affidavit  sworn  on  1

December 2010.  He also questioned Dr Ong’s expertise and experience.  Dr Farnell said:

I have read Dr Ong’s affidavit sworn on 30 November 2010 [being the date on  the  cover  sheet of the affidavit sworn  on 1  December  2010].   New Zealand general practitioners in New Zealand see an average of between 2 and 4 terminal patients per year.  Dr Ong had been in general practice for about 7 years when he met Ann.  In that time he may only have seen about

10 such patients. That level of experience may not have allowed him time to develop good awareness of the importance of noting issues such as capacity

to  make  important  decisions,  including  decisions  with  important  legal

consequences.

In light of the factors I outline above, I consider there is reason to doubt Ann had full testamentary capacity in late February 2010.  In my opinion, on first meeting a frail patient with advanced terminal illness, a prudent and experienced doctor would have formally tested for capacity, especially if they were aware that the patient was considering making major psycho- social  changes  such  as  changing  a  Will.    A simple  question  of  “why” regarding the “Will or other issues often helps.

While Dr Ong asserts in his affidavit that he considers Ann had testamentary capacity, there is no record that he administered the MMSE or any other test of mental state on any of Ann’s visits to him.  I do not therefore consider that he could with confidence state that she had the necessary capacity.

I do not consider that the complexity of Ann’s condition or her mental state are adequately portrayed in the GP’s notes over the period he attended her. The notes make no reference to many of the factors which I have identified as matters which would raise concern for an experienced specialist.   This may be a result of the fact that Ann became his patient at a late stage, when her behaviour was already affected by her illness and treatments.  He lacked the prior knowledge of her which her previous GP could have used as a basis for comparison.   That may explain the reason he missed cues such as the taking of alternative medication, refusal to take pain relief and pressure from friends, which might have prompted a more experienced doctor to assess cognitive function and screen for evidence of delirium.

[58]     Dr  Farnell  also  expressed  an  opinion  on  undue  influence.    In  Graeme’s affidavit there are some rather unconvincing suggestions that the provisions of Ann’s final will may have been the result of influence from Raihi Taylor.   Dr Farnell, clearly against this background, said:

The medical notes record occasional actions taken by a friend, Raihi Taylor who was listed as a carer but not as next of kin on Ann’s Hospice and oncology notes.  The actions could be seen as intrusive, particularly as Ms Taylor was not recorded as Ann’s next of kin.  This involvement in Ann’s treatment and decisions about her were recorded in the oncology notes as early as 2 December 2007.

On 8 February 2010 a Hospice staff member recorded that Ms Taylor had visited the Hospice to discuss Ann’s condition without advising Ann of her action. The staff member expressed a concern about issues of confidentiality in relation to that visit.

On 8 April 2010 a letter from the Hospice to Dr Ong records:

Ann  has  found  herself  a  little  bewildered  by  the  multitude  of different opinions offered her by friends, family and some medical practitioners also.

The influence of friends on a sensitised patient can acquire disproportionate weight.

At the time of Ann’s death the Hospice notes record that Ms Taylor was the cause of Ann’s family not being notified of Ann’s death until some hours after it occurred.   I annex marked “P” the Liverpool Care Pathway notes kept by the Hospice.   They record Ian White as the primary contact and Graeme White as secondary contact to be contacted at any time in the event of Ann’s impending death.  They do not record Raihi Taylor as having any right to be contacted in that event.  Despite that, the nursing notes recording Ann’s death state:

Raihi woken up to hear the news, she wishes to leave Ann until the morning.  She has gone back to her bed and will phone her brother about 7 am.   She said he is exhausted and needs to rest at the moment.

[59]     Dr Farnell concluded:

My review of the notes taken by medical professionals indicates to me that at the time Ann made her Will there were significant factors in her condition and  her  life  which  indicate  that  her  decision  making  processes  were impaired. Those are:

(a)       Her medical and psychological condition;

(b)      The conflicting therapeutic advice she was receiving from various sources

(c)       Her disturbed liver function raising the real possibility of periods of delirium;

(d)      The  level  of  pain  she  was  experiencing  and  her  refusal  to appropriately medicate for that;

(e)       Influence from friends.

Discussion : testamentary capacity

[60]     The direct evidence as to Ann White’s testamentary capacity, and her mental capacity generally, came from the nine witnesses for the plaintiff and the three

family members for the defendants.  There were no questions of credibility in respect of any of these witnesses.   I am also satisfied that there are no material issues of reliability in respect of the evidence of any of the witnesses; by this I mean that I am satisfied that they were not mistaken in their recollections of their dealings with Ann White and in their descriptions of her behaviour.  I am also satisfied that the interests of Raihi Taylor, Jillian Johns and Yvonne Skellern as beneficiaries do not diminish the reliability of their evidence.  There was a somewhat similar issue of self-interest raised in respect of Dr Thompson, which I discuss below.

[61]     What  I  consider  to  be  credible  and  reliable  evidence  for  the  plaintiffs establishes, through nine witnesses who had direct dealings with Ann, that she was mentally competent.   The positive conclusions of all of the witnesses, in different ways, and notwithstanding cross-examination, were that Ann White was mentally competent; they were not simply conclusions that there was an absence of evidence of possible mental impairment.   This direct evidence was not challenged to any material extent by the evidence of Ethel, Graeme and Ian in respect of their dealings with Ann.

[62]     Ethel, Graeme and Ian did give evidence, which I accept, establishing that Ann’s behaviour on occasions from around late 2009 was different from what it had been before.  However, my conclusion is that it was the behaviour of a woman who was becoming increasingly unwell, and subject to significant medication, or need for medication, but unaccompanied by any material evidence of mental deterioration. There were  descriptions  of  what  might  be  described  as  erratic  behaviour  when compared with Ann’s behaviour in the past.  I will refer to one example only.  This was Ann’s insistence that she drive herself to Rotorua for Christmas with her mother and other family members, when offers had been made to drive her, and that she left her purse in a café where she stopped on the way and then insisted on driving herself back to pick it up.  This behaviour, and other conduct referred to, in my judgment fell well short of providing indications of declining mental capacity.  There were a number of other matters referred to by the witnesses, and they did cover a range of conduct.  I acknowledge this, but it is unnecessary to go into the detail.

[63]     The evidence from the Whites must be weighed against the evidence of the plaintiff’s witnesses.   The Whites’ evidence does not diminish the weight of the direct evidence of the plaintiff to the effect that Ann had testamentary capacity.  This can properly be described as overwhelming evidence that Ann had testamentary capacity.

[64]     There is also the evidence of the Whites, and Mr Brant’s submissions in that regard, relating to the provisions of the final will compared with the earlier wills, evidence of the Whites of discussions Ann had with them relating to provisions she intended to make, which were different from the actual final provisions, and the related evidence concerning Ethel’s financial circumstances.

[65]     I am satisfied that Ethel’s financial circumstances are reasonably modest.  I am also satisfied that some money from her daughter would have been of help to her. However, I am also satisfied that Ethel does not have pressing financial needs. Ann’s  advice  to  Ms  Davies  that  Ethel  was  “financially  independent”  is  not inaccurate.

[66]     My conclusion in relation to this important part of the defence case is that Ann’s decision to make no provision for her mother is not, in the particular circumstances, indicative of a lack of reasonable understanding by Ann in respect of moral obligations she had.   The evidence establishes to the requisite standard that Ann had sufficient understanding of claims that might be made on her, or obligations that she might have, and made the provisions in the will with that understanding. There is the direct evidence from the Public Trust officer, Ms Davies, on this very topic.  This is the evidence contained in the will instructions.  The fact that Ann gave reasoned consideration to the provisions of her will, with that reasoning being unaffected by any relevant mental incapacity, is borne out by the evidence of the other witnesses for the plaintiff.  And this is not a case where the provisions of the will of themselves raise questions as to whether the testator was rational.   The provisions are rational.  They are plainly rational in respect of the gifts to friends. But they are also rational in respect of the gifts of residue, being the primary focus of the defence in this context.  The link between Ann and the objects of her gifts of residue are obvious.  In making those observations I am not intending to express any

opinion as to whether it was reasonable for Ann to fail to make some provision for her mother. That is not a matter requiring an assessment in this proceeding.

[67]     I am not persuaded by Dr Farnell’s evidence that the clear conclusion from the evidence considered to this point, being all of the direct evidence arising from dealings with Ann, needs to be modified.  The underpinning of Dr Farnell’s evidence was his opinion as to the ways in which circumstances, such as those affecting Ann, can lead to mental impairment of different kinds.  This includes mental impairments which, in a legal sense, would demonstrate that the person lacks testamentary capacity; or raise sufficient uncertainty as to whether the person had testamentary capacity, which is all the defendants need to do.

[68]     The validity of Dr Farnell’s general conclusions as to what can happen is not in issue.  What is critically in issue is whether what are possibilities were present in Ann as a matter of fact.  This does not mean that the onus was on the defendants to establish a lack of testamentary capacity.   What it means is that there was an evidential onus on the defendants, dependent at this point entirely on Dr Farnell’s evidence, to sufficiently demonstrate that the clear evidence of actual testamentary capacity, from all of the plaintiff’s witnesses, should nevertheless be doubted to a point where the onus on the plaintiff was not met; in other words, that possibilities as to what might occur were sufficiently borne out by the evidence as to what actually occurred.

[69]     Mr Brant submitted that a relevant distinction was to be drawn between the evidence of Drs Ong and Thompson on the one hand, and the evidence of Dr Farnell on the other.  The former was described as evidence as to fact given by professionals with expertise.  The latter was described as the evidence of an independent expert. Mr  Brant  also  submitted  that  there  is  an  “added  caveat”  in  the  case  of  Dr Thompson’s evidence because he is a director of the Auckland Cancer Society and, if the final will is upheld, the Cancer Society of New Zealand will receive approximately $285,000.  The distinction between the capacities in which Drs Ong and Thompson on the one hand and Dr Farnell on the other gave evidence is accurate in one sense of the word “independent”.   However, I am satisfied that there is nothing in this which warrants caution in respect of the reliability of the evidence of

Drs  Ong and Thompson,  including their opinions.    I am  also  satisfied  that  the reliability of Dr Thompson’s evidence is not diminished by the fact that he is a director of the Auckland Cancer Society.

[70]     In the face of Mr Bant’s submissions, it is relevant to note some more specific conclusions on Dr Farnell’s evidence.  It is also appropriate to do so because these conclusions  bear on  the  question  whether Dr  Farnell’s  evidence means  that  the plaintiff has failed to establish that Ann had testamentary capacity notwithstanding the weight of the evidence for the plaintiff otherwise establishing that she did have testamentary capacity.

[71]     I do not accept Dr Farnell’s criticism of Dr Ong’s conclusions based on propositions from Dr Farnell relating to Dr Ong’s experience.   In this regard it is relevant to record Dr Thompson’s response to this.  Dr Thompson said:

In my expert opinion, I do not believe that Dr Farnell had any grounds to suggest that Dr Ong is not sufficiently experienced, or had not known the patient long enough to make a judgment call as to her mental state.  Dr Ong had the benefit of examining and being with Ann, Dr Farnell did not.   Dr Ong  had  clearly  seen Ann  on  several  occasions  in  the  days  and  weeks leading up to 18/22 February 2010 when I have been informed, and believe, the operative Will, and assessment as to her mental capacity, needs to be made.

[72]     I accept Dr Thompson’s observations.  I also consider that it is surprising that Dr Farnell, asked to give evidence as an expert, did not discuss the matters of concern with Dr Ong.   The weight to be attached to Dr Farnell’s opinions is also diminished by the fact  that he did not  discuss his concerns with other medical practitioners actually involved in Ann’s treatment, including Dr Thompson.

[73]     At [54] above I have recorded Dr Farnell’s broad conclusions.  He identified two areas of concern.  He did not indicate that one of these carried more weight than the other.  The second area of concern was what Dr Farnell described as “evidence of effect  on  ‘personhood’”.    In  respect  of  that  rather  general  concept,  Dr  Farnell referred to what he stated was advice Ann received “throughout her illness”.   Dr Farnell’s conclusions in this regard are opinions based in reasonable measure on untested assertions of fact, and ones that must have come entirely from Graeme’s affidavit prepared in order to persuade the Public Trust to seek probate in solemn

form.  In my judgment this is not a solid foundation for the conclusions Dr Farnell reached.

[74]     Dr Farnell also adopted a somewhat adversarial approach on some matters, and sought to buttress his conclusions with argument on matters of fact which was not very persuasive.  This was demonstrated by Dr Farnell’s response to questions based on Ann’s instructions to Ms Davies for the will.  Dr Farnell said that this was not very informative because the instructions were not in Ann’s own handwriting. This part of the evidence was coupled with a rather inflexible position as to the importance of conducting a mini mental state examination, even if a doctor, such as Dr Ong, did not consider there was any need for such an examination.

[75]     Responses of this nature led to questions from me.   These questions were directed initially to an email written by Ann on the morning of 18 February 2010, before she went later that morning to give instructions to Ms Davies for the new will. This was an email to two friends.  I will set out the email in full, not only because it is relevant to my conclusions on Dr Farnell’s evidence, but also because it bears on the ultimate issue of testamentary capacity.  It is as follows:

Hi Sue & Reg,

Sorry I haven’t been in touch. You are often in my thoughts.

The results of the MRI were not good – as I understand it there is a 40 x 38 x

35 mm malignant, presumably metastatic mass at the level of the L2 vertebra with invasion into the bone marrow.

About the same time as the MRI my new doctor in Browns Bay (previously had a doctor in Takapuna) got in touch with Hospice and they have helped me a lot.   The doctor there got hold of the MRI report and prescribed morphine amongst other things and I at last had some relief.

With this evidence that I was not just a whining old bat my brother emailed the hospital to advise that he would be attending the next meeting with me. My brother – Graeme and his wife Jenny – came up on Thursday morning and Graeme and I went to the meeting on Thursday afternoon.  Basically I was offered – first priority – radiation to reduce the size of the tumor and therefore possibly the pain – later maybe chemo but with my history rather doubtful.  Privately there is another option but it only works for some so the first point for that is to send samples to Australia for testing.

At that meeting I understood that it would be three weeks before anything was likely to happen but next morning we had just finished breakfast when the phone went and asked if I could go across to the Radiation dept ASAP.

The registrar kept being called away so we spent until after lunch time there and I thought I would hear in about 2 weeks time but the phone went again Monday afternoon and I went across to the Radiation dept again Tuesday and got the tattoos etc to start the treatment on 25th.

I have enrolled for art and Tai Chi for this term in Browns Bay.  I do Tai Chi sitting down but after next week don’t know when and if I will be able to attend again. Keeping positive.

Meeting a friend for lunch today and then the public trust.   My younger brother does not like me talking about things like this but I have to be practical.

All the best always. Ann

[76]     At my request Dr Farnell read this. There was then the following:8

A.        Mmm. That's fairly impressive, isn't it.

Q.       Is there any indication on the face [of it] of a degree of – using my word – “incoherence” –

A.        Mmm, no there isn’t.

Q.       No. A.     No.

Q.        And that she’s on the – plainly the author of that on the day in

question isn’t she?

A.        I think that’s right.

Q.        Yes.

A.        It looks genuine.  Mmm.

Q.       And the task, as you will understand, for me, is going from the general –

A.        Mmm.

Q.        – which you are describing within your plain expertise –

A.        Mmm.

Q.        – to the specific with this particular person –

A.        Mmm.

Q.        – isn’t it?

8 Notes of evidence p 72, l 31 – p 73, l 25.

A.       Yes it is, yes. Q.   Mmm.

A.       I guess the exception is it was a pretty big dose of morphine, um, that she was given that day.

Q.       Sure.

A.       But that’s, that’s a fairly good document. Q.        Meaning that it’s plainly coherent isn’t it? A.        It looks – that looks coherent.

[77]     I am satisfied from this evidence, coupled with all the other evidence I have referred to, that Dr Farnell accepted that, notwithstanding the possibilities suggested by the range of information he referred to, the actuality with Ann was that she was mentally competent and, more specifically for this case, that she had testamentary capacity.

[78]     For all of these reasons, I am satisfied that Ann White had testamentary capacity when she gave instructions for her final will and when she executed that will.

Discussion : undue influence

[79]     The onus of proof of undue influence was on the defendants.  Although the standard of proof is the balance of probabilities, an allegation of undue influence should not be made without some cogent evidence that the will maker has been improperly influenced in the making of her will.

[80]     As indicated in the introduction to this judgment, the main issue in respect of the  defendants’ allegation  of  undue  influence  is  whether  there  is  any  sufficient evidence  of  relevant  influence  at  all.    The  foundation  had  to  be  provided  by witnesses of fact, and the only defence witnesses of fact were Ethel, Graeme and Ian. This evidence amounted to no more than rather vague suggestions that Ann may have been influenced by Raihi Taylor.  This evidence did not reach a point requiring careful consideration of the issue.  To an extent it was not admissible evidence at all,

but amounted to submissions in the nature of inferences said to arise from particular facts.

[81]     There was also the evidence from Dr Farnell.  It is surprising that his opinion was sought on this issue, to the extent of seeking an opinion on the ultimate question. Expert evidence might be given as to the possibility, based on medical expertise and experience, that Ann might be more susceptible to influence because of her medical condition and medication.  But such an opinion should go no further than that.  Dr Farnell,  perhaps  inadvertently,  went  further.    He  effectively  allowed  himself  to express conclusions of fact, with these conclusions in considerable measure based on the untested and decidedly vague observations of Graeme in his original affidavit. Dr Farnell drew inferences that were not open on the very limited information that he referred to in this respect.   And they were conclusions expressed without any knowledge at that point as to what Raihi Taylor had to say.

[82]     The claim of undue influence was not made out.

Result

[83]     The application for probate in solemn form of Mina Ann White dated 22

February 2010 is granted.

[84]     If the plaintiff seeks costs a memorandum should be filed within four weeks and a memorandum for the defendants in response should be filed within a further

four weeks.

Woodhouse J