Re Watson - [2014] NZHC 874

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-003402 [2014] NZHC 874

IN THE ESTATE of NOREEN JOYCE WATSON of Auckland in New Zealand, Retired (Deceased)

On the papers.

Judgment:

30 April 2014

JUDGMENT OF GILBERT J

This judgment is delivered by me on 30 April 2014 at 5pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Estate N J Watson [2014] NZHC 874 [30 April 2014]

[1] Noreen Watson died on 22 July 2013. She made two wills shortly prior to her death, the first on 17 June 2013 and the second on 18 July 2013. She appointed her sister, Mary Brothers, the executrix and trustee of both wills. Ms Brothers seeks probate in respect of the earlier of these two wills on the basis that Ms Watson may not have had testamentary capacity at the time she executed the later will.

[2] The principal difference between the two wills is that two specific bequests of

$5,000 each to Ms Watson’s grandchildren were omitted from her later will. The balance of her estate under both wills was left to her two daughters, Elizabeth Watson and Dianne Murray. Ms Watson and Ms Murray are therefore the only people who will be affected if probate is granted in relation to the earlier will. They are both of full age and sound mind and have consented in writing to the present application.

[3] The application is accompanied by a number of affidavits but it is not possible to determine from these whether Ms Watson had testamentary capacity at the time she made her last will. Janice Stirling knew Ms Watson for approximately
30 years and lived next door to her for five of those years. She saw her about once a month in the six month period prior to her death. Ms Watson advised her in July
2013 that she had left a small legacy to two beneficiaries who had not contacted her and she had decided to change her will. Ms Stirling was later asked to witness Ms Watson’s signature on the 18 July 2013 will. Ms Stirling says that the new will was read out to Ms Watson before she signed it having confirmed that it accorded with her wishes. Ms Stirling considers that Ms Watson was alert and understood the nature and effect of her new will.

[4] Ms Stirling’s affidavit is supported by the affidavit of Jennifer Tait, who also witnessed Ms Watson’s signature on the 18 July 2013 will. Ms Tait knew Ms Watson for 58 years. She visited her monthly and spoke to her by telephone two or three times a month. Ms Watson also told Ms Tait that she had reconsidered bequests she had made to her grandchildren because she had not seen them recently. Ms Tait also describes the circumstances in which the new will was signed and considers that Ms Watson understood its contents.

[5] Peter Stratford prepared the new will on Ms Watson’s instructions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Watson

Details

AGLC: Re Watson [2014] NZHC 874
Case: [2014] NZHC 874
Decision Date: 30 April 2014

CaseChat Overview and Summary

The case of Estate N J Watson involved Noreen Watson, who passed away on 22 July 2013. She had executed two wills, the first on 17 June 2013 and the second on 18 July 2013. Mary Brothers, Watson's sister, was appointed as the executrix and trustee in both wills. Brothers applied for probate of the earlier will, asserting that Watson may not have had testamentary capacity when she executed the later will. The primary difference between the two wills was the omission of specific bequests of $5,000 each to Watson's grandchildren in the later will. The two daughters of Watson, Elizabeth Watson and Dianne Murray, consented to the application, as they would be the only individuals affected by the granting of probate for the earlier will.

The legal issue at hand was whether the court should grant probate for the earlier will, considering the uncertainty regarding Watson's testamentary capacity at the time she executed the later will. The court had to decide whether to defer dealing with the application for the earlier will until the issue of testamentary capacity was resolved. The court considered the affidavits submitted in support of the application, which suggested that Watson may or may not have had testamentary capacity at the time she signed the later will. However, the court concluded that it could not resolve the issue of testamentary capacity based solely on these affidavits.

In light of the uncertainty regarding Watson's testamentary capacity, the court decided to defer dealing with the application for the earlier will. The court made an order under r 27.5(4) of the High Court Rules, directing the applicant to apply for probate of both wills in the alternative. This decision allowed the court to determine whether Watson had testamentary capacity at the time she signed her last will. The court emphasised that it was the duty of the executor to propound any will that he believed may be the valid last will of the testator, and it was not the duty of the executor to decide which will to seek probate for in cases of doubt. The final order for probate would have to await the determination of the issue of testamentary capacity.

Orders