Puru v Puru HC Auckland CIV 2006-404-2491

[2007] NZHC 1684

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-2491

UNDER  Section 60 of the Administration Act 1969

IN THE MATTER OF     the estate of CHARLOTTE HANNAH TREVARTHEN of Auckland, Widow, deceased

BETWEEN  TUINI MIHIMA PURU Applicant

AND  JEANINE TANIA PURU Respondent

Hearing:         15 February 2007

Counsel:        HW Fulton for Applicant

S Abdale for Respondent

Judgment:      28 February 2007 at 1.00 p.m.

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 28 February 2007 at 1.00 p.m., pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Tetley Jones Thom Sexton, P O Box 111, Auckland

Barry & Co, P O Box 47200, Ponsonby, Auckland

PURU V  PURU HC AK CIV 2006-404-2491  28 February 2007

Introduction

[1]      Charlotte Hannah Trevarthen (known as Lottie) died on 30 March 2006.  Her niece, the applicant, Tuini Mihima Puru (Tuini) was the executrix and trustee of her last will and the sole beneficiary of her estate. She has applied for a grant of probate.

[2]      The respondent, Jeanine Tania Puru (Jeanine), is the deceased’s biological daughter.   She was adopted at age six by the deceased’s twin sister, Mauretania Caroline Puru (known as Molly), who is also Tuini’s mother.  Jeanine has lodged a caveat.  In response, Tuini applied for an order nisi for grant of administration and an order was made by Andrews J on 16 October 2006.

Purpose and scope of hearing

[3]      The  matter  now  comes  before  me  pursuant  to  s  61(d)  and  (e)  of  the

Administration Act 1969 which provide:

(d)       In any case to which paragraph (c) of this section does not apply, if on the day named in the order nisi or on the day to which the order is enlarged, the caveator does not appear, the order nisi may be made absolute, upon an affidavit of service; but if the caveator appears, the hearing shall be conducted in the same manner as nearly as may be as in an ordinary action, and the Court may order—

(i)        That the order nisi be made absolute or discharged; or

(ii)      That the application for administration be made in solemn form,—

and any order made under subparagraph (i) or subparagraph (ii) of this paragraph may be with or without costs, as may be just, and, if the Court so directs, those costs may be paid out of the estate:

(e)       At any hearing under paragraph (d) of this section, the parties may, subject to the rules, verify their cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, be subject to be cross-examined by or on behalf of the opposite party orally in open Court, and after cross-examination may be re-examined orally in open Court by or on behalf of the party by whom the affidavit was filed.

[4]      In terms of para (d), Tuini seeks an order that the order nisi be made absolute. Jeanine seeks an order for the application for administration to be made in solemn form.    The usual approach on the hearing  of such  applications  is  to  determine whether the caveator has raised sufficient to show that a full inquiry should be made: Re Nissenbaum [1939] NZLR 94 and Re Payne (1989) 2 PRNZ 432.   The conventional  course  is  for  the  caveator  to  provide  such  evidence  as  is  readily available to support the caveat and for those propounding the will either to submit to a requirement to proceed in solemn form or, alternatively, to deny that the caveator has raised enough to prevent the order nisi being made absolute.  The Court does not usually resolve genuinely disputed issues of fact under s 61 – van der Kaap v Wilson and ors CA97/04 14 June 2005 at [34].

[5]      The  caveator,  Jeanine,  has  filed  affidavits  supporting  a  claim  that  the deceased lacked testamentary capacity when she made her last will and was unduly influenced  by  Tuini.    There  are  affidavits  in  response  and  in  support  of  the application for probate by Tuini, Molly, the solicitor who prepared the will and a legal executive who was also present when it was executed.

Undisputed facts

[6]      Much of the evidence is in conflict and it is convenient to first set out what is not in dispute.

[7]      The deceased was 64 when she died.  She had been blind from an early age having contracted rubella as an infant.   She was a gifted musician who achieved fame as a jazz singer and pianist.

[8]      Jeanine was born in 1965.  Because of the deceased’s blindness, Jeanine was cared for by Molly who legally adopted her in 1971.  She was raised with Molly’s six children, the eldest of whom was Tuini.  When she was about eleven Jeanine and another of Molly’s daughters ran away from home and spent some time in girls’ homes.   The deceased then obtained custody of Jeanine.   She spent  part of her adolescence with her mother; exactly how much is in contention.

[9]      The deceased had married Derek Trevarthen who died in the 1980s.  He and the deceased owned a house in Herne Bay.  He left his interest in the house to the deceased.   It is the main asset of her estate.   A will the deceased made in 1980 provided that if her husband pre-deceased her, Molly would be the executrix and trustee of her will and Jeanine, then aged fifteen, would be the sole beneficiary.  That will remained in force until revoked by the will now in issue.

[10]     The deceased was admitted to hospital on 28 February 2006 and found to be suffering from terminal cancer.  She was discharged on 13 March so that she could spend her last days at her home.  Tuini was her primary caregiver.

[11]     On about 9 March Sandra Barry, a principal in the firm of Barry & Co, solicitors, was instructed by Tuini to prepare a will for the deceased.   A draft was prepared and confirmed by Tuini as according with the deceased’s wishes.  Ms Barry and  a  legal  executive,  Katherine  Warnock,  then  attended  at  the  home  of  the deceased.  They had not previously been told the deceased was blind.  However, the will  was  read  to  her  and  its  provisions  explained.     They  were  satisfied  she understood its terms.

Family relationships

[12]     There are conflicting accounts of family relationships and of some of the circumstances surrounding the execution of the deceased’s last will.  In her affidavit Jeanine speaks of abuse at the hands of her adoptive mother, Molly, including a beating when she was eleven years old which, she says, left her blind in one eye. She says that is why she ran away and ended up in a girls’ home.  Jeanine says she then went to live with the deceased and stayed with her until she left school.   She speaks of forming a close and loving bond during this period and of a continuing close relationship after she had children and grandchildren of her own.   Jeanine deposes that the deceased told her that she would inherit her house and that this was said in the presence of Molly and other relations.

[13]     Jeanine  asserts that  Tuini  and  her  family  had  very  little  to  do  with  the deceased until a few weeks before her death.   She claims that when her mother

collapsed at home and rang for help, it was only by chance that Tuini got the call. She paints a picture of being excluded by Tuini after she had taken the deceased to hospital and of Tuini “taking over” her mother’s affairs from that point on.   She claims that Tuini called a family meeting to notify everyone, except her, that her mother was changing her will.  She speaks of a battle to be allowed to see her mother during her last days, of Tuini telling her that her mother had changed her will and making a lot of hurtful comments.   On the other hand, she says her mother said nothing to indicate that she had any thought of changing her will.

[14]     Jeanine questions whether her mother understood the contents of her will. She alleges it was drafted in accordance with Tuini’s wishes, not the deceased’s. Jeanine also alleges that Tuini influenced her mother to change her will.  She claims that her mother had a lifelong distrust of Tuini since Tuini stole cheques from her in the late 1970s.

[15]   Tuini and her mother, Molly, give a very different account of family relationships.  Both deny that Jeanine suffered abuse at the hands of Molly.  Indeed, both say they had not previously heard that Jeanine was blind in one eye.   Molly confirms that Jeanine, accompanied by Molly’s daughter Audrey, ran away from home and spent  a short time  in girls’ homes.    They confirm that  the  deceased arranged for Jeanine to be released into her care but both claim she spent very little time at the home of the deceased.  Both Tuini and Molly say that Jeanine spent most of her time away from home because of gang associations and lived only occasional periods at the home of Molly and the deceased.  They dispute Jeanine’s claim that she formed a close and loving bond then or after she had children of her own.  Tuini claims that Jeanine had nothing to do with the deceased during the last five years of her life.

[16]     In contrast, both Molly and Tuini say they had frequent contact with the deceased.   Tuini says her relationship with the deceased was the closest of all the nieces and nephews, including Jeanine.   She says that they visited one another at least every two months and she and her children sometimes stayed overnight at the home of the deceased.  Molly disputes that the deceased made it known that Jeanine

would inherit her house.  She also says she was in regular contact with the deceased. They visited each other at least fortnightly and were in regular telephone contact.

[17]     Tuini says that the deceased admitted herself to hospital and called her from there.   While she was in hospital, the deceased asked her to instruct a lawyer to prepare a new will for her.   She made contact with Ms Barry and, at her request, obtained a letter from the hospital as to the deceased’s mental state.  It read:

This  letter  is  to  confirm  that  Charlotte  Trevarthen  is  an  in-patient  at Auckland City Hospital with a physical illness.  However, she has in no way displayed any mental deterioration and is of sound mind.

This is the opinion of the medical team looking after her care.

[18]     Tuini says she asked the deceased to dictate her wishes to her which she recorded and signed.  The document states that Tuini is to be appointed trustee of the deceased’s estate.   It does not  expressly state she  is to  be the sole  beneficiary. However, Tuini says she asked the deceased why she was leaving everything to her, her home and her possessions.  The answer was, “Do what you want with them”.

[19]     Both Tuini and Molly were present when the will was executed.   They say they could see and hear what took place but  did not  participate.   Both say the deceased was mentally alert  and knew what  she was doing.    They refer  to  her reciting a passage from Shakespeare.

[20]     Ms Barry confirms that, having prepared the will in accordance with the deceased’s wishes as conveyed to her by Tuini, she attended the deceased’s home on

14 March with Ms Warnock.   She says the deceased was physically frail but very alert and fully engaged in discussions concerning the contents of her will which was read to  her  in  full.    Ms Barry deposes that  the  deceased  calmly  and  rationally engaged in discussions about the Herne Bay property and Maori land.  The deceased was able to have detailed discussion with Ms Warnock who has expertise in Maori land issues.  Ms Barry confirms that, prompted by the date being the Ides of March, the deceased recited a significant portion from Julius Caesar.

[21]     Ms Barry deposes that she has been a district inspector of mental health for twenty years.  In that capacity she has been required to engage on a daily basis with

people whose  mental capacity  is compromised.    She believes the deceased was aware  of the  significance  and  had  knowledge  of  the  contents  of  her  will,  was competent and not mentally challenged or so physically disabled that she did not know or understand what it was that she was signing.  Ms Warnock’s evidence is to the same general effect.

[22]     Ms  Barry  produced  notes  from  the  Auckland  Hospital  to  confirm  the deceased’s mental state, her wish to benefit Tuini and her relationship with Jeanine.

Legal principles

[23]     As earlier mentioned, the over-riding question is whether the caveator has done enough to show that a full inquiry should be made before probate is granted. Mr Fulton referred me to an unreported judgment of Wylie J, Re estate of Gerard Sweeney HC AK P120/88 9 July 1991 in which the Judge said the standard equated to that used in the injunction jurisdiction of a serious issue to be tried.  He said at 27:

With respect that seems to be an appropriate test.   The Court should be careful to ensure that if any grounds are shown which give rise to a real suspicion that something is amiss then those grounds should be fully investigated before the Court.   On the other hand, to justify interference there should be demonstrable and substantial grounds for suspicion.   Mere unsupported statements of belief and supposition should not suffice. …

[24]     This is consistent with the general approach to probate proceedings.  Those propounding the will  do  not  need  to  establish  that  the  maker  had  testamentary capacity unless there is some evidence raising lack of capacity as a tenable issue: Re White [1951] NZLR 393 (CA) and Peters v Morris CA99/85 19 May 1987.  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.  On this approach the respondent’s task is to raise a tenable issue.

[25]   In order to establish testamentary capacity, 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;

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.

This is established by the leading authority of Banks v Goodfellow (1870) LR 5 QB

549.  See also Peters v Morris at [22] – [23].  The question is whether the respondent has raised a tenable issue that the deceased had an inadequate understanding of these three matters.

[26]     The second ground raised by the caveator requires me to determine whether there is any evidence that Tuini exercised power over the deceased and by that means the will was obtained.   Undue influence relates to impairment of judgment rather than to improper conduct on the part of the person possessing influence – Carey v Norton [1998] 1 NZLR 661; (1997) 16 FRNZ 686. The burden of proving that influence was in fact exercised is on the party alleging undue influence – Craig v Lamoureux [1920] AC 349 (PC). However, where the person who has prepared a will takes the benefit of it, the rule in Barry v Butlin (1838) 2 Moo PCC 480 applies to cast on the proponent of the will the onus of showing “the righteousness of the transaction” – see Fulton v Andrew (1875) LR 7 HL 448 at 471-472 where Lord Hatherley said:

There is one rule which has always been laid down by the Courts having to deal with wills, and that is, that a person who is instrumental in the framing of a will, as these two persons undoubtedly were, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who  are  not  called  upon  to  substantiate  the  truth  and  honesty  of  the transaction as regards their legacies.  It is enough in their case that the will was read over to the testator and that he was of sound mind and memory and capable of comprehending it.   But there is a farther onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will.   They have thrown upon them the onus of shewing the righteousness of the transaction.

See also the discussion in Tanner v Public Trustee [1973] NZLR 68 (CA).

Discussion

[27]     There is compelling evidence that the deceased was in full possession of her mental faculties at the time the will was executed and understood what she was signing.  The medical evidence disclosed by the hospital notes and confirmed by the letter written by the hospital doctor, does not suggest that the grave nature of her illness  had  caused  any  mental disability.    There  is  nothing  to  suggest  that  her condition had changed by the time the will was executed.  The evidence of Ms Barry and Ms Warnock is to the opposite effect.

[28]     There was a suggestion that the deceased subsequently may have experienced hallucinations.   Tuini said this misrepresented invocations by the deceased to her ancestors to fetch her as she neared death.   That evidence does not cause me to question the mental state of the deceased when the will was signed.

[29]     There is nothing in the evidence to raise a suspicion that the deceased did not know the effect of her will.  However, I do not have the same confidence that she was fully aware of the extent and value of her property and had a proper appreciation of the possible claims on her bounty by Jeanine.  There is no evidence that either of these issues were discussed with her when the will was executed.   She talked to Ms Warnock about possible interests in Maori land but there was no discussion of the content and value of her estate.  If Ms Barry had information about that, it would have had to have come from Tuini at an earlier time.  Ms Barry did not know of the existing  will  and  there  is  no  evidence  that  Jeanine’s  position  was  considered. Ms Barry said she did not know Jeanine was the deceased’s biological daughter.

[30]     There are other circumstances, also relevant to undue influence, which raise further questions about whether the deceased had a full understanding of what she was doing.   The signed note of the deceased’s instructions, recorded by Tuini and handed to Ms Barry, is a curious document.  As earlier mentioned, it does not in its terms provide for Tuini to be sole beneficiary, only trustee.  The inference that she was to take the full benefit of the estate must have been drawn by Ms Barry or conveyed to her by Tuini.   The signed note also contains instructions for a named beneficiary to “take” $400, $100 of it from a trust.  There may be good reasons why

these instructions did not find their way into the will but they did not emerge in evidence.  In answer to questions on this issue Ms Barry said she found some of the deceased’s intentions as conveyed in the document and by Tuini to be “problematic”. She said she prepared a draft will for Tuini to discuss with the deceased and was advised  it  was acceptable.    However,  she did  not  know  whether  Tuini actually discussed the draft with the deceased.  Tuini did not say anything about the draft in her evidence.

[31]     It appears then that until the will was presented for execution, all instructions had been filtered through Tuini, the sole beneficiary.   Ms Barry had never met or spoken to the deceased until she went to the deceased’s home for the will to be executed.   While the will was read to the deceased then and Ms Barry satisfied herself she understood its terms, there was no opportunity for the free and frank exchange   between  solicitor   and   client   that   would   normally  accompany  the preparation and execution of a will.  When the will was read through and executed, Tuini and her mother were in the room.  They did not take part in the discussion but were present to the knowledge of the deceased.

[32]     These circumstances give rise to considerable cause for disquiet.   On the present state of the evidence I cannot be satisfied that the will was executed freely and with the full knowledge and approval of the deceased.  In terms of the rule in Barry v Butlin the proponent of the will also has fallen well short of showing the requisite righteousness of the transaction.

[33]     The caveator has shown real and  substantial grounds  for  questioning  the integrity of the testamentary process.   There is a clear need for all the relevant circumstances to be fully explored.  The application for administration must be made in solemn form.

Interim administrator

[34]     In view of the likely time before a hearing of the application for probate in solemn form, there is agreement that an interim administrator should be appointed under s 7 of the Administration  Act.   The  applicant  sought the  appointment  of

Ms Barry.   That was opposed by the respondent and I declined to make the order sought.     If  the  parties  can  reach  agreement  on  the  identity  of  an  interim administrator, an order can be made on the filing of a joint memorandum.