Puru v Puru HC Auckland CIV 2007-404-003881
[2008] NZHC 2672
•5 November 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2007-404-003881
IN THE MATTER OF the Estate of Charlotte Hannah Trevarthen
BETWEEN TUINI MIHIMA PURU Plaintiff
ANDJEANINE TANIA PURU First Defendant
ANDMAURETANIA CAROLINA PURU Second Defendant
Hearing: 1, 2, 3, 4 and 29 September 2008
Appearances: H Fulton for the Plaintiff
S Abdale for the First Defendant
No appearance for the Second Defendant
Judgment: 5 November 2008 at 4.45pm
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 5 November 2008 at 4.45pm
pursuant to r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors/Counsel:
Barry & Co, P O Box 47 200, Ponsonby, Auckland
Tetley-Jones Thom Sexton, P O Box 111, Auckland
H Fulton, P O Box 5577, Wellesley Street, Auckland 1141
S Abdale, P O Box 46 281, Auckland
T M PURU V J T PURU HC AK CIV 2007-404-003881 5 November 2008
[1] This is an application for probate in solemn form of a will dated 14 March
2006 made by the deceased, Charlotte Hannah Trevarthen (“Lottie”). Three issues arise:
a) Did Lottie have testamentary capacity at the time she made the will?
b) Did Lottie know and approve of the contents of the will?
c) Was Lottie unduly influenced in making her will by the plaintiff, Tuini Mihima Puru (“Tuini”)?
To a significant degree all three issues run together and much of the evidence in relation to one issue is also relevant to the other issues.
Relevant factual background
[2] Lottie was born in November 1941. She suffered from rubella in her infancy. As a result she was blind from a very early age. She had many talents, and she lived independently, insofar as was possible, until the last few weeks of her life. She was an accomplished jazz musician with a wide reputation. She was an office worker for much of her working life. She worked for various agencies for the disabled, and she served on the boards or committees of various charitable and welfare agencies.
[3] Lottie had a twin sister, the second defendant, Mauretania Carolina Puru
(“Molly”).
[4] In April 1965, Lottie had a daughter – the first defendant, Jeanine Tania Puru (“Jeanine”). Because of Lottie’s blindness, Jeanine was cared for by Molly, and Molly and her husband Richard legally adopted her in 1971 when she was 6 years old. Jeanine was raised along with Molly’s six other children, the eldest of whom was Tuini.
[5] Lottie married a Derek Trevarthen (“Derek”). There was no evidence advanced as to the date of the marriage but nothing turns on that. Derek had owned
a property in Wharf Street, Herne Bay, Auckland since 1954. In 1979, following the marriage, the property was settled as a joint family home. Chapman Tripp acted for Derek and Lottie in regard to that transaction.
[6] Jeanine had a difficult childhood. Molly was a strict disciplinarian and it is Jeanine’s evidence that she was subjected to repeated beatings by Molly. Jeanine ran away from home on a number of occasions, and was frequently a truant from school. When she was about 12 years old, she and another of Molly’s children, Audrey, left home. They were detained by the Department of Social Welfare and placed in girls’ homes.
[7] In 1980, Jeanine was placed in Lottie’s care by the Department of Social Welfare and thereafter she lived with Lottie and Derek for a period. There was some dispute on the evidence as to how long she lived with Lottie and Derek. The evidence suggests that it was for a relatively short period but I do not think that anything of significance turns on this. It is clear that at this time Lottie made a will which is dated 19 March 1980. That will provided for all of her estate to pass to Jeanine if Derek did not survive her. This will was prepared by Chapman Tripp.
[8] The evidence was also clear that in subsequent years Lottie became estranged from Jeanine. I return to this matter below.
[9] Derek pre-deceased Lottie. He died in 1986, and the property at Wharf Street passed to Lottie by survivorship. Chapman Tripp acted on the administration of Derek’s estate.
[10] In February 2006 Lottie was feeling unwell. She admitted herself to Auckland City Hospital on 27 February 2006, where she was diagnosed with terminal cancer. She contacted Tuini, her eldest niece, and amongst other things asked her to make arrangements so that a new will could be drawn up. She also spoke to a Mäori social worker on the hospital staff, Beryl Te Moananui, and with an accountant friend and adviser, Peter O’Brien, in early March 2006 in this regard.
[11] After seeking advice from the Grey Lynn Neighbourhood Law Office, Tuini contacted a solicitor, Sandra Barry, regarding Lottie’s wish to make a will. Tuini was asked by Ms Barry to get a medical certificate confirming that Lottie was capable of making a will, and also to get instructions from Lottie as to how she wished to dispose of her estate. Tuini did so on 10 March 2006. A medical certificate was obtained from a Dr Duane Anderson. Lottie gave oral instructions to Tuini for her new will. The instructions were written out by Tuini and they were signed (twice) by Lottie.
[12] On 13 March 2006, Tuini took the medical certificate and will instructions to Ms Barry and discussed them with her. On the same day, Lottie was discharged from hospital and she was taken back to her home to be in the care of Tuini and other family members.
[13] The following morning – 14 March 2006 – Ms Barry and Kathleen Warnock, a legal executive, attended at Lottie’s home with a draft will. They met Lottie in the lounge. They discussed the draft will with Lottie at some length. Ms Barry did not know that Lottie was blind, and the attestation clause in the will had not been prepared for a blind testatrix. The will was read over to Lottie. Lottie approved the will and she signed it. The will appointed Tuini as Lottie’s sole executrix and trustee and left her the whole of Lottie’s estate after the payment of any debts and funeral expenses.
[14] Lottie died on 30 March 2006 at the age of 64 years.
[15] The principal asset of the estate is the house at Wharf Street. As at January
2008, it had a rateable value of $630,000. There were some relatively minor amounts of money in current and savings accounts, and some modest personal chattels. There was a debt for legal fees outstanding, which together with funeral expenses, totalled approximately $6,000.
[16] In April 2006, Tuini applied for probate of the will. Jeanine lodged a caveat under s 60 of the Administration Act 1969. Tuini then applied for an order nisi for
the grant of administration and on 20 October 2006 Andrews J granted the order nisi
and called on Jeanine to show cause why the order should not be made absolute.
[17] Jeanine then filed an affidavit together with a supporting memorandum from her counsel. She also sought leave to file further affidavits out of time. By consent, Cooper J made the necessary orders in that regard on 20 November 2006 and a number of further affidavits were subsequently filed by or on behalf of both Jeanine and Tuini. The matter then came before Rodney Hansen J on 15 February 2007. Tuini was seeking that the order nisi be made absolute. Jeanine sought an order that the application for administration be made in solemn form.
[18] In a reserved judgment issued on 28 February 2007, Rodney Hansen J concluded that Jeanine had shown real and substantial grounds for questioning the integrity of the testamentary process, and that there was a need for all the relevant circumstances to be fully explored. His Honour ordered that the application for administration be made in solemn form.
[19] In March 2007, the Public Trustee was appointed as interim administrator of
Lottie’s estate.
The pleadings
[20] As required by the Court, Tuini sought an order granting probate of Lottie’s will dated 14 March 2006 in solemn form. It was asserted that Lottie executed her will knowing and approving of its contents.
[21] Jeanine in her statement of defence and counterclaim denied that the will dated 14 March 2006 was executed by Lottie knowing and approving of its contents. As positive defences, she asserted that Lottie did not have testamentary capacity, and further that Lottie was subject to undue influence. It was asserted that the document dated 14 March 2006 was not a valid will, and that probate ought not to be granted in respect of it. By way of counterclaim, Jeanine asserted that the last valid will of Lottie was the will dated 19 March 1980, and she sought an order granting probate of that document.
[22] Mr Fulton for Tuini discussed the legal principles relating to testamentary capacity and undue influence. In particular he discussed the application of the “rule” discussed in Barry v Butlin (1838) 2 Moo PCC 480, and its application in New Zealand (see below at [78]). He also submitted that even if Lottie’s will was not effective in totality, it could be effective in part, and in particular that the provision revoking the earlier will should stand. He then discussed the facts in some detail, and submitted that Lottie’s mental capacity was not in doubt, that she had sufficient knowledge and understanding of the extent of her estate, and of the claims of others on her bounty. He submitted that Lottie had testamentary capacity. In relation to undue influence, he submitted that Tuini had demonstrated whatever onus there was on her to justify the righteousness of the transaction, and that there was abundant evidence to establish that the will was the free expression of Lottie’s intentions. He submitted that the evidence established that Tuini was nothing more than an assistant conveying instructions for a person incapable of doing so herself.
[23] Ms Abdale for Jeanine also discussed the law relevant to testamentary capacity and undue influence. There was little disagreement between her and Mr Fulton in this regard. She also analysed the facts, and submitted that Lottie was not of a sound disposing mind at the time that she made the will, and that the will was executed “because of the cumulative effects of frailty, deaf[ness]/blindness, and a lack of adequate memory and understanding that was unduly enfeebled by illness, or affected by undue influence”. She submitted that Lottie’s will was irrational, and that the family were expecting Lottie to provide for Jeanine. She suggested that this went to unsoundness of mind, and that the legal tests of testamentary capacity were not met. She was critical of Ms Barry’s role, and suggested that she could and should have done more. She raised concerns over Tuini’s role in obtaining the will instructions, and relaying them to Ms Barry. She was also critical of Tuini’s presence in the house the day the will was signed. She relied upon the rule in Barry v Butlin, and submitted that Tuini could not establish the righteousness of the transaction. It was her argument that Tuini had both motive and opportunity, and that she unduly influenced the testator to provide for her in the will as sole beneficiary, and to exclude Jeanine.
[24] The classic statement of the elements of testamentary capacity is that found in the decision of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 567. It was there noted – citing from an authority in the United States – as follows:
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. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
[25] More recently in New Zealand, the law has been summarised by the Court of
Appeal in Bishop v O’Dea (1999) 18 FRNZ 492 per Tipping J as follows:
[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 Hooke 16/9/97, CA172/96, and in Peters v Morris (supra).
[26] The Court is not required to consider the reasonableness of the will-maker’s decisions expressed in the will or whether he or she has exhibited sound judgment in the testamentary dispositions made. However, a disposition can be irrational or unjust to such an extent that it calls in question the issue of capacity; see Rhodes (deceased); Stewart v Meads HC Wellington, CP 25/03, 7 March 2002 per Hammond J at [40].
[27] Whether or not a will-maker has testamentary capacity is a question of fact, to be assessed in all the circumstances, and, as a general rule, it must be shown that the testator/testatrix possessed testamentary capacity when the will was executed; see Norton v Trustees of Estate of Meehan HC AK M191/95, 1 July 1996, per Elias J at [45]. There is an exception but it is not relevant for present purposes.
Testamentary capacity – analysis
(a) Sound mind
[28] I deal first with the overarching issue of whether Lottie was of sound mind at the time she executed her will on 14 March 2006 before turning to consider the three elements of testamentary capacity set out above.
[29] There is a considerable amount of evidence in relation to Lottie’s mental capacity leading up to the execution of the will. There is a letter signed by Dr Duane Anderson, who was at the time a house surgeon employed by the Auckland District Health Board. He assisted Lottie’s physician, Dr Bagg, while she was in hospital. The letter is dated 10 February 2006. While Ms Abdale attempted to exploit this error, in my view, it is clear that it was a simple mistake. The letter should have been dated 10 March 2006. This was the letter that Tuini obtained when asked to do so by Ms Barry. The letter confirmed that the Lottie was an in-patient with a physical illness, and went on to state as follows:
However she has in no way displayed any mental deterioration and is of sound mind.
[30] In addition, Dr Bagg gave evidence before me. He confirmed the contents of another letter in which he had recorded both that he had reviewed Lottie’s hospital notes and that he remembered her well. In his letter he had stated as follows:
In my view there were no concerns regarding this patient’s mental status. I make that statement on the basis of multiple entries in the notes; from my own ward rounds, comments from nurses, occupational therapist, physiotherapist, social worker and Kaiatawhai.
Dr Bagg had also noted that a formal mini mental status examination was not performed. This was because he felt there was no need for it. His letter stated that the multi-disciplinary team members who interacted with Lottie were not concerned about her mental status. He recorded that he had personally reviewed Lottie on the day when she was discharged (the day before the will was executed), and that he did not have any concerns from a “mental status point of view”.
[31] Dr Bagg was cross-examined about the fact that a mini mental status examination was not performed. He acknowledged that he would have undertaken such an assessment had there been a family history of early onset alzheimers disease and if he had received a specific request from a lawyer to provide a certificate as to mental capacity. I do not consider that this acknowledgement advances matters. The hospital notes, Dr Anderson’s letter, Dr Bagg’s letter and his evidence, make it clear that there were no concerns about Lottie’s mental health. While there was evidence that some other members of the family had suffered from alzheimers disease, there was nothing to suggest that Lottie suffered from it. In the circumstances, a formal assessment was considered to be unnecessary at the time and it was not carried out. In my view that was readily understandable.
[32] Dr Bagg also stated under cross-examination that he did not believe that Lottie’s mental capacity was affected by pain. As he put it, “pain was not a prominent feature of her illness in hospital”.
[33] In addition the Mäori social worker employed by the Auckland District
Health Board at the time, Ms Te Moananui, gave evidence at the hearing. She did
not have a clear recollection of her attendances on Lottie, but she had made various notes at the time which were produced as part of Lottie’s hospital records. They did not record any concern that Lottie lacked mental capacity while in hospital. Rather it was Ms Te Moananui’s evidence that the notes indicated that she did have capacity, and that she had been able to discuss her affairs rationally. In her view Lottie’s mental competence was not in doubt. Although she accepted in cross-examination that she was not qualified to conduct an assessment of a patient’s mental capacity, it was her clear recollection that Lottie was “really sharp” – “sharp focused and knew what she wanted”.
[34] Both Dr Bagg and Ms Te Moananui were independent witnesses. They referred to contemporaneous hospital records and I accept their evidence.
[35] In addition, all witnesses who saw Lottie on or about 14 March 2006, confirmed that she was mentally alert, aware of her surroundings, and aware of what was going on. Some of those witnesses were independent of the family. I refer to Mr O’Brien, a chartered accountant, a Justice of the Peace, and a long term friend to Lottie. He visited her on 8 March 2006, on other occasions in hospital, and at her home shortly before she died. He stated that throughout all of his discussions with her, and indeed when he saw her only a day or two before she died, she was alert and understanding, and with full knowledge of what she was doing and of her circumstances. Again I accept this evidence.
[36] Ms Barry, the solicitor who attended on Lottie when the will was signed, confirmed that Lottie was at all times very alert, and that she fully engaged in discussions as to the contents of her will. She stated that Lottie was clear and unambiguous in her responses to questions about the disposition she was making, and was able to calmly and rationally engage in discussions. It is noteworthy that Ms Barry is also a District Inspector of Mental Health, and has been for a number of years. She has engaged on a daily basis with people whose mental capacity is compromised. She was firmly of the view that Lottie was competent, and that her mental capacity was not affected.
[37] A similar conclusion was reached by Kathleen Warnock, the legal executive who accompanied Ms Barry when the will was signed. She noted that Lottie was physically frail, but that she was alert, and in full communication with her and Ms Barry.
[38] I accept the evidence of both Ms Barry and Ms Warnock.
[39] Audrey Puru was called to give evidence by Tuini. She is Tuini and Jeanine’s sister. She was at the house on 14 March 2006. She recorded that Lottie talked to the lawyers very much as normal, and that she was active in the discussions. She considered that Lottie was following everything that was being said and observed that she was actively participating in the discussions.
[40] It is also significant that Jeanine and various witnesses called by her expressed a similar view – albeit at different dates. Jeanine visited Lottie on or about
23 March 2006 – some nine days after the will was signed. She gave evidence that she talked to her, that Lottie responded, and that Lottie was making sense of what she was saying. Her husband, Luke Nikora, was present for part of this discussion. He agreed that Lottie was able to speak sensibly with Jeanine, that Jeanine was able to speak to her, and that they were having a sensible conversation. Jeanine and Luke’s daughter – Waana Puru – also visited Lottie sometime after she was released from hospital. It seems likely that that was on or about 21 or 22 March 2006. She talked to Lottie, who asked her about her children, about her youngest child’s birth, about her partner, and about her younger brothers. She accepted that Lottie’s questions were intelligent questions. Finally, I note that Aroha Daniels, who was a long term friend to Lottie, spoke to her by telephone at some stage shortly before she died. She confirmed that Lottie was making sense, and, as far as she could remember, that she was able to carry on a sensible conversation.
[41] In my view, all of this evidence points overwhelmingly to the fact that Lottie was of sound mind at the relevant time on 14 March 2006. While there was some material in one of the affidavits filed by Jeanine at an earlier stage of the proceedings which suggested that Lottie was hallucinating, the evidence given by Jeanine before
me did not repeat that assertion. There was nothing in the evidence which in my view raised any suspicion about Lottie’s soundness of mind.
(b) Did Lottie understand the nature of the act and its effects
[42] The evidence made it clear that Lottie understood that she was making a will and the effect of doing so.
[43] Lottie clearly articulated her wish to make a will. She discussed the position with Ms Te Moananui shortly after she was admitted to hospital. She told Ms Te Moananui that she was “on borrowed time” and that she needed to “organise, process, and complete” her legal affairs while she was still able to do so.
[44] Lottie spoke to Tuini at much the same time and told her that she wanted to get a lawyer so as to make a will. When Tuini asked her if she had a lawyer, she replied “No, you go and look for one”. When she was asked by Tuini if she should see a local lawyer, she said “Just do what you’ve got to do”.
[45] She had a similar discussion with Mr O’Brien. She told him that she may have made a will many years ago. She asked him also to assist in finding a solicitor.
[46] It was suggested by Jeanine that there was significance in Lottie not using the solicitors who had drafted her earlier will. The evidence established that Chapman Tripp acted for Lottie and her husband Derek up until about 1992. I do not think that this fact assists Jeanine. Chapman Tripp it seems were initially Derek’s solicitors. They became Derek’s and Lottie’s solicitors after the marriage. There is nothing to stop a client from changing his or her legal advisors and there is no obligation on the client to inform the previous advisors of any change. It is quite understandable that by 2006 Lottie had forgotten the detail of her earlier association with Chapman Tripp and her earlier will. Her earlier will had been made in 1980 – some 26 years before the will the subject of these proceedings.
[47] Lottie dictated will instructions to Tuini on 10 March 2006. Those instructions read as follows:
Friday 10th March 2006 Will and Testiment (sic)
I CHARLOTTE HANNAH TREVARTHEN of 42 WHARF RD, HERNE BAY hereby authorise my niece
TUINI MIHIMI PURU
to be trustee to my estate & all my personal belongings and bank accounts.
I also hereby declare that GAIL HOHAIA takes $300 – from me & WAIORA (TE ROOPU) TRUST $100 – Total $400 –
$300 I’m claiming for and $100 from TE ROOPU WAIORA TRUST Total
$400.
I wish to be buried @ PAMAPURIA in KAITAIA.
They were signed twice. The evidence was that Lottie was not satisfied with her first effort.
[48] Tuini gave evidence that she wrote down Lottie’s instructions word for word, that they were read back to her, and that Lottie approved them and signed them.
[49] Although the fact that the instructions were given supports the view that Lottie understood that she was to make a will and the effect of so doing, the actual information given is to an extent unhelpful. They record a desire to bequeath money which it seems did not belong to Lottie – the $300 claimed from the trust. Lottie did not expressly make any provision for the disposition of most of her estate. She did not in so many words direct that her estate should be left to Tuini.
[50] It was Tuini’s evidence that it was understood that a trustee takes all the estate for the trustee’s own benefit. This understanding was subsequently relayed to Ms Barry by Tuini, and Ms Barry drafted a will in accordance with it.
[51] The draft will did not follow the will instructions to the letter. First it did not make provision for Gail Hohaia. Ms Barry took the view that Lottie was trying in part to bequeath money that she was claiming from the trust to Ms Hohaia. She considered that Lottie could not make a provision to this effect in her will. Secondly the draft left the net estate to Tuini as well as appointing her Lottie’s trustee, and this on the face of it went beyond the instructions.
[52] Ms Barry took the view that the instructions were brief notes from a lay person that required clarification. To that end she attended on Lottie on 14 March
2006 to discuss the draft will that she had prepared. Ms Barry gave evidence that Lottie knew that the purpose of the meeting was to complete a will, and that she readily engaged in that topic. Lottie first called for a prayer to be said, and asked Molly to lead that prayer. Ms Barry told me that when she was discussing the will with Lottie, she referred back to the instructions that Lottie had signed, and that she discussed those instructions with her. She discussed with Lottie that she could not give away that which was not hers, issues regarding trusteeship, and the verbal advice that she had received from Tuini that Lottie intended that the estate should be left to Tuini. Ms Barry told me that she went through the issues raised in the instructions and the will as she had presented it, and that Lottie was pleased with the outcome. She gave evidence that she went through “every bit” of the draft will with Lottie, and that she read it to her in full. She stated that as she did so, she explained the provisions, and that Lottie asked questions or made comments that were appropriate. In cross-examination, she confirmed that she had explained to Lottie the difference between a trustee and a beneficiary, and that she discussed with Lottie her intention to give a bequest to Gail Hohaia. As she put it, Lottie “knew what was not there”. She told me that when the will was signed Lottie smiled, nodded, and indicated with clasped hands that “a significant box [had been] ticked”.
[53] Ms Warnock confirmed that Ms Barry slowly and methodically read and explained the provisions of the will to Lottie and confirmed that Lottie acknowledged to her and to Ms Barry that the will recorded what she wanted, and was in accordance with her instructions.
[54] In the circumstances, it is my view that the evidence establishes that Lottie knew that she was making a will, and the effect of doing so.
(c) Did Lottie understand the extent of the property being disposed of?
[55] Once again, the evidence is in my view clear in this regard.
[56] The will instructions dictated by Lottie referred “to my estate and all my personal belongings and bank accounts”. That was a concise description of what was a simple estate.
[57] It was Tuini’s evidence that at some stage – probably shortly after the will was signed – Lottie spoke to her about making her house a papakainga or place which can be used by the whole of the family. She said that because Tuini was the eldest, and looked after everybody, she would love it if Tuini were to make her house into a papakainga. Audrey Puru also gave evidence that Lottie said that she would love the house to be a papakainga. The same issue was also discussed with Ms Barry. This suggests strongly that Lottie was aware that the house was one of her assets.
[58] When Ms Warnock and Ms Barry attended on Lottie, Ms Warnock discussed with her whether or not she had any interests in Mäori land. Lottie indicated that she might have an interest in Mäori land, because of a particular Mäori family that she was related to. She gave Ms Warnock the name of that family, and she was given advice that if she owned an interest in Mäori land, then that interest would pass according to Mäori land rules and processes.
[59] Ms Barry gave evidence that Lottie was able to calmly and rationally engage in a discussion, not only about her home in Herne Bay, but also about family land that might be subject to Mäori interests. She stated in evidence that during her discussions with Lottie, she asked about, and was informed by Lottie about her assets. There was a discussion about the proposed bequest of monies to Gail Hohaia. She confirmed that Lottie spoke to her about the home and papakainga. She said that she had never heard the word before, and that its meaning was explained to her by Lottie.
[60] All of this evidence compels the conclusion that Lottie understood the extent of the property she was disposing of. It was a small and simple estate, and it was not difficult for a person of sound mind to understand its extent.
[61] I am satisfied that Lottie understood the extent of her estate.
(d) Did Lottie understand the moral claims of others?
[62] Once again it is clear from the evidence that Lottie was fully aware of Jeanine, and her moral claim on the estate as her natural daughter, and that she decided that she did not wish to leave all or any part of her estate to Jeanine, for reasons that to her were good.
[63] I refer first to the evidence of Ms Te Moananui. Jeanine rang Lottie when she was in hospital on the evening of 7 March 2006 and she visited her on the morning of 8 March 2006. Ms Te Moananui spoke to Lottie about this contact in the early afternoon of 8 March 2006, and she recorded the discussion in her notes as follows:
… received call last nite & visit from her daughter this a.m. Voiced very little contact or communication with her daughter in last x 5 years – patient stating her daughter has her own selfish hidden agenda in mind since informed of her medical condition, however patient prepared to challenge her at this time & extremely happy with the decisions she has already made re personal affairs discussed with her niece tweenie (sic).
[64] In a further note contained in the clinical records and dated 8 March 2006, it is recorded as follows:
Upsetting night last night – daughter upset her – phone call last night – not on good terms.
[65] Lottie also made a telephone call to Tuini on 8 March 2006 about the call she had received from Jeanine. The call was recorded by Tuini and the tape was produced as an exhibit. It confirmed that Jeanine had rung Lottie during the evening on 7 March 2006, and queried how Jeanine knew about Lottie’s illness. The implication is that Lottie wished to keep the fact of her illness from Jeanine. This is consistent with evidence given by Tuini.
[66] On 8 March 2006, Mr O’Brien called on Lottie. She told him of her estrangement from Jeanine. She said that Jeanine had disowned her by not acknowledging her in any way, and referred to one occasion when they were on the same bus and Jeanine refused to acknowledge her and sat in a different part of the bus. Lottie told Mr O’Brien that she was very hurt by that incident. She also told
Mr O’Brien that until Jeanine’s visit that day, she had not seen her for some five years, and that she only found out that day that Jeanine had had a daughter – Lottie’s granddaughter. (I suspect that this was a reference to Jeanine’s daughter, Waana, having a daughter – it may be that either Lottie or Mr O’Brien was mistaken. It does not alter my view that Lottie was aware of Jeanine’s moral claim on her estate).
[67] Ms Barry gave evidence that she expressly discussed with Lottie the moral obligations on her bounty, and that Lottie clearly told her that she felt she had no moral obligation. In particular Lottie discussed her alienation from Jeanine. Lottie told her of particular instances of her relationship with Jeanine, and spoke of times when she felt unsupported by Jeanine in public, of times when she felt that Jeanine had shunned her or avoided her, and of the incident on the bus. She also spoke of issues of dishonesty, and said that she believed that Jeanine had on occasion stolen from her. She told Ms Barry that she and Jeanine were estranged, and that they had had little contact. She advised that it was some five or six years since she had last had contact with Jeanine.
[68] The conversation between Lottie and Ms Barry about Lottie’s relationship with Jeanine was overheard by Audrey Puru. She gave evidence that Lottie was critical of how Jeanine had treated her, and she specifically recollected overhearing the discussion in relation to the bus incident. She stated that Lottie was in effect telling Ms Barry that Jeanine was never there for her, and that she was hurt by Jeanine.
[69] The evidence given by Jeanine did not significantly advance matters. She acknowledged that she had upset Lottie when she visited her in hospital, that Lottie had got angry with her, and that Lottie had asked her to leave. Jeanine did not suggest in her evidence that she had had any great or meaningful contact with Lottie in the five or so years prior to her death. Much of her evidence dealt in general terms with her contact with Lottie in earlier years. She could not specifically recall the bus incident.
[70] I found Jeanine’s evidence in very many respects to be unsatisfactory. There were discrepancies between her evidence and affidavits she had filed earlier in the
proceedings. She conceded in cross-examination that various statements in those affidavits were not correct. She had little recollection of what was in her affidavits. She did not know what certain words used by her in the affidavits meant; indeed under cross-examination she stated, “I don’t think I wrote this at all” in relation to one part of one of the affidavits. Jeanine was understandably upset that she was excluded from her natural mother’s will, but that said, it seemed to me that Jeanine was quick to attribute wrongdoing to Tuini, to jump to conclusions based on little or no evidence, and then to assert those conclusions as statements of fact. I did not find her to be a satisfactory witness.
[71] There was some evidence relating to an alleged incident where it was said that Jeanine had burnt some clothes that Lottie had given to her. I have not placed any weight on that incident. I agree with Ms Abdale that the evidence in relation to it was vague and inconclusive.
[72] It is nevertheless clear that there was a significant degree of estrangement between Lottie and Jeanine. I am mindful of Aroha Daniels’ comment that “Lottie never did anything without a damn good reason”.
[73] In my view the evidence makes it clear that Lottie had sufficient understanding of the moral claims on her bounty.
[74] Some would no doubt take the view, that despite the estrangement, Lottie should have made some provision for Jeanine. I remind myself that it is not for me to enter into any enquiry on the soundness of Lottie’s judgment. I do not consider that Lottie’s decision to leave her estate to Tuini was so irrational or unjust as to call into question her capacity – see below at [106] and [107]. Lottie had a relationship with Tuini who was her eldest niece and given her estrangement from Jeanine, her decision to leave the estate to Tuini was understandable.
(e) Testamentary capacity – summary
[75] In my view Tuini as the prospective executrix and trustee of the will has met the onus of establishing that Lottie had testamentary capacity on 14 March 2006 when the will was signed.
[76] I now turn to consider the issue of knowledge and approval of the contents of the will.
Knowledge and approval – legal principles
[77] It is essential to the validity of a will that the will-maker knows and approves of its contents; see Re Whyte (Deceased) [1969] NZLR 519.
[78] Normally proof of testamentary capacity and due execution will be sufficient to establish knowledge and approval of the contents of the will; see Re Smith [1956] NZLR 593. This however is not always the case. In the case of a blind will-maker, affirmative proof is required to the effect that the will was read to the will-maker, and that he or she knew and approved of its contents. Further, in some cases the circumstances surrounding the making of a will may arouse the suspicion of the Court, and thus place a burden on the propounder of the will to prove affirmatively that the will maker knew and approved of the contents of the will: see Barry v Butlin, and Tanner v The Public Trustee [1973] 1 NZLR 68.
[79] The issue of knowledge and approval has often been raised in the context of undue influence, and there has on occasion been confusion as to who bears the onus of proof and in relation to which issue. For example in the LexisNexis text Wills and Succession (Loose leaf) at para 3.12, it is suggested that although undue influence must usually be proved by the person alleging it, the onus shifts if the person propounding the will is the principal beneficiary, especially if the beneficiary prepared the will. Tanner is cited as authority for this proposition. However, in my view Tanner is not a case of undue influence at all: see Tanner at [71]. Rather it is a case where suspicious circumstances called into question whether the will-maker knew and approved of the contents of the will. The Court held that the onus was on
the propounder/beneficiaries to remove the suspicion and to show the “righteousness of the transaction”.
[80] More recently, the view has been expressed in the United Kingdom, that “righteousness of the transaction” is perhaps an unfortunate term: see Fuller v Strum [2002] 1 WLR 1097 at [22]. The Court stated that what is involved is simply satisfaction of the test of knowledge and approval. Where suspicion exists, it must be more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled, and so that the Court can be satisfied that the will represents the wishes of the deceased.
Knowledge and approval – analysis
[81] Here Tuini is the propounder of the will. She is also the sole beneficiary. She took Lottie’s initial instructions. She relayed those instructions to Ms Barry. She explained to Ms Barry her understanding that Lottie intended that she should be the sole beneficiary of her estate. She was in and out of the room when Ms Barry was discussing the will with Lottie. Lottie was of course blind and Tuini held a template on the will so that Lottie could sign it in the appropriate place when the will was executed.
[82] I also accept Ms Abdale’s submission that Lottie was at the time in a vulnerable position. She was blind. She suffered from deafness (although there is no evidence to suggest that this impaired her to any significant extent). She was suffering from a terminal illness. She was becoming increasingly frail and she was under the care of family members, and in particular Tuini. Indeed for the last few weeks of her life she was reliant on others.
[83] These circumstances suffice to raise the suspicion of the Court, and to put the onus on Tuini as the person propounding the will to clearly show that Lottie knew and approved the contents of her will.
[84] Tuini took Lottie’s will instructions on 10 March 2006. I refer to my discussion at [47] and [48] above. Moreover Tuini not only relayed Lottie’s
instructions to Ms Barry, she also interpreted them – see [50] above. This clearly creates the potential for something to be put in the will that Lottie did not know or approve of.
[85] Nevertheless, on the evidence, I am satisfied that that did not occur and that
Tuini was simply acting as a conduit on Lottie’s behalf.
[86] In particular, I note that Tuini did not prepare the will. Rather Lottie’s will was drafted by Ms Barry. Although Ms Barry drafted it on the basis of Lottie’s instructions as taken by Tuini, and Tuini’s advice as to what those instructions meant, Ms Barry’s subsequent detailed discussions with Lottie on 14 March 2006 when the will was signed – see [52], [53], [58] and [59] above – intervene to overcome any suspicion that Tuini had represented matters to her own advantage or that Lottie did not have knowledge of the contents of the will, or give her approval to it. Ms Barry did not simply rely on the will instructions obtained by Tuini, or on Tuini’s explanation of her understanding that Lottie intended that Tuini should be the sole beneficiary of her estate. Ms Barry went through the will carefully and methodically with Lottie. She explained its provisions to her. She made sure that the draft she had prepared was consistent with what Lottie wanted. I refer to my discussion above at [52] and [53]. The purpose of her visit to Lottie’s house on 14
March 2006 was to finalise the terms of the will, and to obtain Lottie’s instructions. Ms Barry made it clear that she was prepared to go back to her office and amend the draft she had prepared if that was necessary.
[87] Any suspicion created by Tuini’s involvement is met by Ms Barry’s evidence that she had a full and careful discussion with Lottie as to the terms of the will, and as to the differences between the will instructions and the final draft document.
[88] I am also satisfied on the evidence that Tuini’s presence at the execution of the will did nothing to support the contention that Lottie did not know and approve of the will. Tuini was in a general sense present, in that she went in and out of the room from time to time when Ms Barry and Ms Warnock were discussing the will with Lottie. She also obtained a template, which Lottie could sign within, and held that template when the signature was affixed to the document. These matters
notwithstanding, in my view it is clear from the evidence, particularly from Ms Barry, that Tuini did nothing improper. It was Ms Barry’s evidence that until the point came to sign the will, no other member of the family had been involved in what she and Ms Warnock were doing. She said that people went in and out of the room, giving the impression that they were going about their normal activities. It was her evidence that she did not notice who came or went, because she and Lottie were concentrating on what they were doing. It has to be remembered that Lottie was blind, and that she would not have been able to see who was in the room. Ms Barry said that she asked Tuini if she could assist in signing the will, and that Tuini went to get the template. She said that she then helped by showing how it was used, and by holding it steady on a board on Lottie’s knee while Lottie signed and initialled the will. There was nothing the conduct of Tuini on the day to detract from the evidence of Ms Barry to the effect that Lottie knew and approved of what she was doing when she signed the will.
[89] The way in which Ms Barry handled the matter was subject to some criticism by Ms Abdale in her closing submissions. Ms Abdale in particular referred me to what she called the “golden rule” discussed by Templeman J in Re Simpson (Deceased) (1977) 121 Sol Jo 224. His Honour there suggested that where a will is made by a testator who is aged, or has suffered a serious illness, the making of the will ought to be witnessed or approved by a medical practitioner, who satisfies him by herself of the capacity and understanding of the testator, and records and preserves the examination and finding. He also suggested that if a testator has made an early will, that should be considered, and if appropriate discussed with the testator by the legal and medical advisors, and commented that the instructions of the testator should be taken in the absence of anybody who may stand to benefit, or who may have influence over the testator.
[90] In my view this so called “golden rule” is not a touch stone of validity: see Cattermole v Prisk [2006] 1 FLR 693. It does not in the circumstances of this case help Jeanine.
[91] I was impressed by Ms Barry’s evidence. I considered her to be an experienced solicitor, and in my view she dealt with matters in a careful and conscientious way. Her evidence was supported by Ms Warnock.
[92] In the circumstances, and on the evidence, I am satisfied that Lottie knew and approved of the contents of her will. I now turn to the last issue - undue influence.
Undue influence – legal principles
[93] Even if a will-maker knows what the contents of the will are, if he or she has been forced to make it because of influence exerted by somebody else, then the will can be declared invalid. This will occur when the influence is undue, in the sense that the will maker is coerced to make a will in particular terms. Coercion has the effect of destroying the will-maker’s freedom of action.
[94] When influence becomes undue was discussed in Hall v Hall (1868) LR 1
P&D 481 at p 482, where Sir J P Wilde noted as follows:
Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character whether acting on the fears or on the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overbourne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else’s.
[95] The legal tests for undue influence were reduced to five propositions by
Fisher J in Re Estate of Dudley; Irvine v Simeti HC Auckland, P 1042/92, 14 May
1993 where His Honour noted as follows:
(a)The key question is whether, because of extraneous pressure from others, the will-maker has signed a will contrary to his or her own wishes.
(b)Persuasion which has left the final choice to the will-maker is not undue influence. Where there is evidence of strong influence or
pressure, the Court will approach the question of the will-maker’s own wishes with suspicion. However, if satisfied that the will- maker’s wishes have not been overborne, and that in the end he or she wanted the will in that form, the Court must uphold the will. In those circumstances the ultimate source of the will is not the external pressures but the exercise of the will-maker’s own free judgment.
(c) The onus of proof lies upon the proponent of undue influence.
However direct evidence of undue influence is not to be expected. These cases usually turn upon the strength of the circumstantial
evidence. The question is whether from all the surrounding
circumstances, with particular emphasis upon the result of the will and the circumstances in which it was actually executed, undue
influence is to be inferred.
(d) For this purpose all the circumstances bearing directly or indirectly upon the free will of the will-maker at the time of execution are relevant. These include illness, pain and suffering, physical weakness and mental deterioration falling short of testamentary incapacity. They also include dependency upon others in legal, business, social, medical and/or domestic matters. One should view with special care any powerful need, obligation, or vulnerability on the part of the deceased which others might be in a position to exploit.
(e)However, it is not enough to show that others had the means and opportunity to unduly influence the deceased and that there has been a recent testamentary disposition in their favour. The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.
[96] Generally, the issue of undue influence, like that of testamentary capacity is one of fact, which falls to be determined as at the date the will was made.
Undue influence – analysis
[97] I am satisfied on the evidence that there was no undue influence. Many of the facts discussed above are relevant in this context.
[98] As noted above at [47] and [49], Tuini recorded Lottie’s oral instructions for her will. Jeanine has not however adduced any evidence to suggest that Tuini applied any pressure to or undue influence on Lottie in obtaining those instructions. Indeed the evidence points the other way. Lottie independently discussed with Ms Te Moananui and Mr O’Brien her desire to make a will. Lottie relayed to Ms Te Moananui the fact that she was happy with the decisions she had made in regard to
her getting her new will prepared. Those discussions strongly suggest that Tuini was not pressuring Lottie to prepare a new will or as to the contents of that will.
[99] Jeanine suggested in her evidence, and Ms Abdale in her submissions, that
Tuini in some way poisoned Lottie’s mind, and set her against Jeanine.
[100] There is no evidential basis to support this assertion. Lottie confirmed to independent witnesses – in particular to Mr O’Brien and Ms Barry – her estrangement from Jeanine, and her reasons for that estrangement – see [66] and [67] above. The discussion with Ms Barry was overheard by Audrey – see [68] above.
[101] Jeanine, through Ms Abdale, submitted that Tuini took active steps to exclude and restrict Jeanine from contact with Lottie. She also asserted that Tuini actively excluded Jeanine from family meetings prior to Lottie’s death at which the deceased discussed estate matters.
[102] There was again no evidence to support those allegations. Indeed, with regard to the allegation that Tuini actively restricted Jeanine’s contact with Lottie, the contrary appears to be true. Jeanine contacted Lottie in hospital by telephone on
7 March 2006, and she visited her on 8 March 2006. It was Jeanine’s evidence that she subsequently spoke to Tuini, and that Tuini said she should come over to her Lottie’s house. As a result Jeanine visited Lottie at her home on 23 March 2006, and she stayed overnight at the property. She asked Tuini for permission to stay at the house, and that that permission was readily given.
[103] The only “family meeting” discussed in the evidence seems to have taken place in early March in hospital. Jeanine was not there but there is nothing to suggest that she was excluded by Tuini. Furthermore there is nothing to suggest that Lottie’s will was discussed at the meeting, and Ms Te Moananui did not notice any change in Lottie’s demeanour when family members were present. This would suggest that Lottie was not overborne by Tuini.
[104] A Ranginui Watling was called to give evidence by Jeanine. She was
Lottie’s first cousin. She gave evidence that she visited Lottie at her home on a
Wednesday when the will was being signed. She stated that two woman were present. She was told that one woman was the lawyer. She said that when she spoke later to Lottie, she joked with her and said, “Did you sign on the dotted line?”. Ms Watling stated that Lottie’s response was “Better see my boss” and this was a reference to Tuini.
[105] I did not find Ms Watling’s evidence convincing at all. First, the will was not executed on a Wednesday. It was executed on a Tuesday. Secondly, in cross- examination it transpired that Ms Watling was initially told that one woman was a doctor, and that it was not until some time later that Jeanine told her that other woman was a lawyer. If this is the case there would have been no reason to have the alleged conversation. It seems to me to be most unlikely that the alleged discussion took place at all. Having heard Ms Watling’s evidence and in particular her answers to questions put in cross-examination, I do not accept her evidence on this issue.
[106] It has to be remembered that Tuini was Molly’s eldest daughter, and Lottie’s niece. The evidence establishes that she looked after family members from time to time, including Jeanine when she left Molly’s home on occasion as a teenager. She assisted in the arrangement which allowed Jeanine to stay with Lottie in 1980, rather than live in Social Welfare care. She supervised Jeanine’s and her friends’ visits to Lottie’s Wharf Road home. Tuini’s evidence was that she had a close relationship with Lottie, and that she provided help to Lottie when asked to do so. She acknowledged that Lottie was independent, and that calls for assistance were not frequent, but nevertheless that she did help when asked to do so. She stated that she had frequent contact with Lottie by telephone, and that she visited Lottie. It was her evidence that her relationship with Lottie was the closest of all the nieces and nephews, including Jeanine. She stated that she had reasonably regular contact with Lottie. She also said that she assisted Lottie with catering for the Blind Foundation, and her children and grandchildren used to visit Lottie.
[107] It is notable that when Lottie was in hospital, she rang Tuini and asked her to take care of her affairs. Lottie gave Tuini authority to act on her bank accounts. Tuini had no expectation that she would be left Lottie’s estate. Indeed it was her evidence that she questioned why Lottie was leaving everything to her.
[108] I am satisfied after careful scrutiny of the evidence that the will was the free expression by Lottie of her wishes and that she was not under the undue influence of Tuini when she signed the document on 14 March 2006.
Summary
[109] For reasons given in this judgment, I am satisfied that Lottie had testamentary capacity as at 14 March 2006 when the will was signed. I am also satisfied that she knew and approved of its contents, and that she was not at the time under the undue influence of Tuini. Accordingly I order that probate be granted in respect of the will dated 14 March 2006.
Costs
[110] Mr Fulton in his pleadings on behalf of Tuini sought costs. As the successful party she is entitled to the same. I do not know Jeanine’s position, and in particular whether or not she is in receipt of legal aid.
[111] If the plaintiff wishes to pursue costs, then any submissions in that regard are to be filed within 10 working days of the date of this judgment. Any submissions in response are to be filed by Jeanine within a further period of 10 working days, and any submissions in reply are to be filed within a further period of five working days. I will then deal with the issue.
Wylie J
0
0
0