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 and read it to her before she signed it.  Mr Stratford was employed as a senior trust manager by the Public Trust for nine years and has considerable experience preparing and attending on the execution of wills.  He is satisfied that Ms Watson understood the nature and effect of the will before she signed it.

[6]      These affidavits all support a conclusion that Ms Watson understood what she was doing and why she was doing it at the time she signed her new will on 18 July

2013.   However, balanced against this evidence is an affidavit from Dr Charles Williams, a general medical practitioner who attended Ms Watson on 16 July 2013, two days before she signed the will.  In his view, Ms Watson lacked the capacity to give instructions for and make a new will at that time.  Although he did not see her after that time, he considers that her understanding and capacity would have only deteriorated.

[7]      The question of testamentary capacity cannot be resolved on the basis of these untested affidavits. All that can be said on the basis of them is that Ms Watson may, or may not, have had testamentary capacity at the time she signed her 18 July

2013 will.

[8]      The application for probate is made under r 27.5 of the High Court Rules which provides:

27.5     Restrictions if possibly invalid will exists

(1)      This rule applies if the applicant –

(a)       knows of a will later than the will that the application is about;

and

(b)       has reason to believe that the later will is invalid.

(2)      This rule also applies if the applicant –

(a)      seeks a grant because the applicant was intestate; and

(b)      knows of a will; and

(c)      has reason to believe that the will is invalid

(3)      The applicant may make an application under rule 27.4 containing proof that –

(a)      the  applicant  has  given  the  executor  named  in  the  will written or electronic notice of the applicant’s intention to

apply; and

(b)      the executor has not applied for a grant within 1 month after service of the notice; and

(c)      a caveat has not been lodged against a grant within 1 month after service of the notice.

(4)       The court –

(a)      may direct the applicant to apply for an under section 53 of the Administration Act 1969; and

(b)      must defer (b)   must  defer  dealing  with  the  application under rule 27.4 until the application under section 53 has

been determined.

[9]      Section 53 of the Administration Act provides:

53       Direction to executor to prove or renounce, etc

The Court shall have power to direct any person named as executor in a will to prove or renounce probate of the will, and (subject to this Act and any other enactment and the rules) to do such other things as it thinks fit concerning the granting and revocation of administration, and the hearing and determination of proceedings relating to testamentary matters and matters relating to the estates of deceased persons.

[10]     An executor is duty bound to carry out the testator’s wishes by taking all proper steps to prove the validity of the last potentially valid will. An executor is not free to choose which will to seek probate for in circumstances where testamentary capacity is in doubt. The testator’s duty to propound any will he believes may be the last  valid  will  of  the  testator  is  not  discharged  by  the  consent  of  affected

beneficiaries. As Sir Herbert Jenner said in In the Goods of Watts:1

The consent of parties interested proves nothing; no person’s consent can make a will no will.

[11]     In Re Young, Wilson J stated that the proper course to follow in cases like the present, where the same executor is appointed under two wills and there is doubt about testamentary capacity at the time the later will was made, is to seek to admit both wills to probate so that the Court can determine which is the last valid will:2

It is the duty of an executor of any will which he believes may be the valid last will of the testator to propound it and to take all proper steps to prove its validity.  It is not his duty to decide, in any doubtful case, whether or not he should do so, it being the function of the Court to resolve such doubt.  If he is not prepared to propound a will which appoints him executor he should

1      In the Goods of Watts (1837) 1 Curt. 594 at 595.

2      Re Young [1968] NZLR 1178 at 1179.

renounce his right as such.  If a person is named as executor in more than one will and he is uncertain which is the last valid will he should propound each one, as alternatives.

[12]     While  I  am  sympathetic  to  the  beneficiaries’  wish  to  take  a  pragmatic approach,  the  Court  is  not  entitled  to  disregard  Ms  Watson’s  wishes  and  grant probate for a will that may well not be her last valid will. Any final order for probate will have to await determination of the issue of testamentary capacity.

[13]     Accordingly, I make an order pursuant to r 27.5(4) of the High Court Rules directing the applicant to apply for probate of both wills in the alternative.  This will enable the Court to determine whether Ms Watson had testamentary capacity at the

time she signed her last will.

M. A. Gilbert J