Rakich v Cox

In the High Court of New Zealand, the plaintiff, Jennifer Gay Rakich, brought proceedings against the defendants, David John Graeme Cox and John Mathew Rakich, regarding the estate of the deceased, Walter John Andrew Rakich. The dispute centred on the validity of the deceased's second will, dated 15 November 2013, and the subsequent appointment of an independent executor to manage the estate. The plaintiff sought, among other things, a declaration that the second will was invalid due to the deceased's lack of testamentary capacity at the time it was executed. The defendants, who were named executors in the second will, defended the proceedings by contesting the claim that the deceased lacked testamentary capacity.

The primary legal issue the Court had to resolve was whether the deceased had the requisite testamentary capacity to execute the second will on 15 November 2013. Additionally, the Court needed to determine the appropriate course of action following the conclusion of a settlement agreement between the parties, which proposed that probate be sought for the first will executed by the deceased on 18 September 2000. The Court also had to consider the implications of the defendants' renunciation of probate for the second will and the appointment of an independent executor for the estate.

The Court ruled that the deceased lacked testamentary capacity to make a valid will on 15 November 2013, based on expert medical evidence provided by Dr. Jane Casey, a consultant psychiatrist and psychogeriatrician, who concluded that the deceased was suffering from dementia and was not wholly competent to manage his own affairs. The Court found that the second will was not a valid will due to the deceased's lack of testamentary capacity. Consequently, the Court directed that the proceedings be treated as an application under rule 27.4 of the High Court Rules and that evidence on the application be given by affidavit. The Court also made an order declaring that the deceased lacked testamentary capacity to make a valid will on 15 November 2013, and that the will executed on that date is not a valid will. Finally, the Court granted a grant of probate in relation to the first will and codicil, subject to certain conditions being met, including the renunciation of probate by the named executors and the filing of consents by the relevant parties.