Robinson v Clevis - [2024] NZHC 2364

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2024-416-001

[2024] NZHC 2364

UNDER section 14 of the Wills Act 2007

IN THE MATTER

of the estate of Carol Ann Wooster late of Gisborne, retired, deceased and of an application to validate the will of the deceased

BETWEEN

BRENDA FAY ROBINSON

First Applicant

EVAN ROBINSON
Second Applicant

AND

DENISE LILIAN CLEVIS

Respondent

Hearing: 23 July 2024

Appearances:

SWM Piggin for the Applicants Respondent in person

Judgment:

22 August 2024

JUDGMENT OF BOLDT J

This judgment was delivered by me on 22 August 2024 at 3:00pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors/Counsel:
Stephen Piggin, Barrister, Auckland

ROBINSON v CLEVIS [2024] NZHC 2364 [22 August 2024]

Introduction

[1] Mrs Carol Ann Wooster died on 12 February 2023 after a short illness. She was 82, and a widow; her husband Mr Gordon Wooster died in January 2020. They had no children.

[2] This case concerns Mrs Wooster’s will. Her last formal will was executed in February 2020, soon after Mr Wooster’s death. In January 2023, once it was clear she was seriously ill, Mrs Wooster indicated she wished to make a new one. Two days before her death, Mrs Wooster’s solicitor, Ms Darcelle Koia, visited her at home and took detailed instructions. Ms Koia returned to the office and typed up a new will based on Mrs Wooster’s instructions, but before she could print the will and return to Mrs Wooster’s home for it to be signed, Mrs Wooster died.

[3] The first applicant, Mrs Brenda Robinson, is Mrs Wooster’s sister. She seeks an order that the unexecuted draft will Ms Koia prepared is a valid will.1 She contends the document accurately expresses Mrs Wooster’s testamentary intention, and that probate should be granted as though it had been executed properly.

[4] If the 2023 will is validated the second applicant, Mr Evan Robinson, asks for an order granting probate to him as substituted executor. Mr Robinson is Mrs Robinson’s husband. If granted, that order would oust Mrs Wooster’s brother, Mr Noel Petherick, as executor. Mr Petherick was named as executor in both the 2020 will and the 2023 draft.

[5] Mrs Robinson stood to inherit Mrs Wooster’s jewellery under the 2020 will. If the 2023 draft is validated, she will retain her entitlement to the jewellery, and will also become one of the two residual beneficiaries.

[6] The respondent is Ms Denise Clevis. She is Mrs Wooster’s niece, and Mr Petherick’s daughter. Neither Ms Clevis nor Mr Petherick are beneficiaries under either will. Ms Clevis’s only formal role in relation to the estate is that she was named

1 Pursuant to s 14 of the Wills Act 2007.

as substitute executor of the 2020 will. In the 2023 draft, Mrs Wooster gave the role of substitute executor to Mr Robinson.

[7] Ms Clevis opposes both the application to validate the 2023 draft and the application to oust…

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 Robinson v Clevis

Details

AGLC: Robinson v Clevis [2024] NZHC 2364
Case: [2024] NZHC 2364
Decision Date: 22 August 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Robinson v Clevis concerns the validity of a draft will made by the deceased, Carol Ann Wooster, shortly before her death. Brenda Fay Robinson and Evan Robinson, the first and second applicants, seek to validate the draft will and to grant Evan Robinson probate as the substituted executor. Denise Lilian Clevis, the respondent, opposes both applications. The central issue in this case is whether the unexecuted draft will prepared by Mrs Wooster's solicitor accurately reflects her testamentary intentions and should be declared a valid will. The court was required to consider the capacity of Mrs Wooster to make the new will, the circumstances surrounding its preparation, and whether undue influence was exerted. The court also needed to decide whether Mr Noel Petherick, the original executor named in both the 2020 will and the 2023 draft, should be replaced by Mr Evan Robinson as executor.

The court found that the draft will accurately expressed Mrs Wooster's testamentary intentions. The evidence showed that Mrs Wooster had a clear intention to change her will and had discussed it with several people over several months. On 10 February 2023, Mrs Wooster met with her solicitor, Ms Darcelle Koia, and provided firm and final instructions for the new will. Ms Koia's evidence, supported by her contemporaneous notes, was unchallenged and demonstrated that Mrs Wooster had the capacity to make the new will at that time. The court was also satisfied that there was no undue influence exerted on Mrs Wooster. The court dismissed the application for Mr Robinson to be granted probate, as the conditions permitting his appointment as substituted executor had not arisen. The court encouraged Mr Petherick to either apply for probate or renounce his role if he is not willing or able to act as executor. The court reserved costs, noting that Ms Clevis acted responsibly in seeking to test the circumstances in which the 2023 will was made.

Orders