Robinson v Clevis
[2024] NZHC 2364
•22 August 2024
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 ApplicantAND
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 her father as executor. She appeared in person in this Court. She expressed concern about Mrs Wooster’s testamentary capacity and is also concerned the applicants are attempting to exclude her father from any involvement in Mrs Wooster’s affairs. She says there has been little communication or consultation.
[8] Although Ms Clevis and Mr Petherick, in their affidavits, rejected aspects of the evidence tendered by and on behalf of the applicants, Ms Clevis indicated prior to the hearing she did not require any of the applicants’ witnesses to be present for cross examination. Ms Clevis confirmed she understood that if she did not challenge the witnesses in cross examination, she could not invite me to reject their evidence. In light of that concession, there was no significant dispute as to the material facts, and many of the essential elements of Mrs Robinson’s application were uncontested.
The estate and the wills
[9] Mrs Wooster’s estate was not large; the principal asset is her house, which has a rating valuation of $396,000.
[10] Both wills were straightforward. After appointing her executors, Mrs Wooster made several specific gifts,2 then gave directions as to the disposal of her residual estate.
[11] There were two main changes between the 2020 will and the 2023 draft. The first is the identity of the substituted executor — as already noted, Mr Robinson replaced Ms Clevis in that role. Secondly, and more significantly, Mrs Wooster changed one of her two residual beneficiaries. The 2020 will divided the residual
2 The individual items included jewellery, records, CDs, videos and DVDs, Mrs Wooster’s books, Mrs Wooster’s clock, Mr Wooster’s collection of war and rugby books, two watches that had belonged to Mr Wooster, a statue, and Mrs Wooster’s car.
estate equally between Mrs Wooster’s niece Ms Janine Whitehead,3 and Mr Wooster’s niece Ms Andrea Fouhy.
[12] The 2023 draft removed Ms Fouhy as a residual beneficiary, and replaced her with the first applicant, Mrs Robinson. Ms Whitehead’s position as the other residual beneficiary is unaffected.
The 2023 draft will
[13] Even before she became seriously unwell in December 2022, Mrs Wooster had mentioned that she planned to change her will. For example, Mrs Wooster’s cousin, Ms Judith Wicks, provided an affidavit recording that in October 2022 Mrs Wooster had called her and told her she planned to remove Mr Petherick, Ms Clevis and Ms Fouhy from her will. She also indicated an intention to make similar changes to her enduring powers of attorney (EPOA).
[14] Ms Wicks said Mrs Wooster was clear and unambiguous when she expressed that intention. Ms Wicks said Mrs Wooster went as far as to say she wanted Mr Petherick, Ms Clevis and Ms Fouhy “off her will” and no longer involved in her health and finances. It is fair to note that if Ms Wicks’ recollection is accurate, it is clear Mrs Wooster later changed her mind, at least with respect to Mr Petherick. Mrs Wooster retained Mr Petherick as executor in the 2023 draft. Mr Petherick also remained Mrs Wooster’s successor attorney (with respect to property) when she made changes to her EPOA.
[15] Mrs Robinson deposed that in January 2023, Mrs Wooster told her she intended to change her will. Mrs Robinson attested that Mrs Wooster had indicated she was unhappy with the 2020 will and wanted to remove Ms Clevis and Ms Fouhy from it.
[16] Mrs Robinson and Ms Wicks made arrangements for Mrs Wooster to visit her solicitor, Ms Koia, on 18 January 2023. Ms Koia’s affidavit records that Mrs Robinson and Ms Wicks attended with Mrs Wooster, as did Mrs Wooster’s other sister Joan. Ms Koia deposed that Ms Wicks stayed in the room when she sat down with
3 Ms Whitehead is Mrs Robinson’s daughter.
Mrs Wooster, but the others waited outside. Ms Wicks stayed because Mrs Wooster was hard of hearing; Ms Wicks relayed questions when Mrs Wooster struggled to hear Ms Koia.
[17]Ms Koia deposed:
7.4Carol reported to me that she had skin cancer, she was receiving nursing support but that the skin cancer did not affect her capacity/brain. Carol was able to articulate her instructions.
7.5Carol was able to explain to me the purpose of the enduring powers of attorney and what they do.
7.6I then invited Brenda and Joan into the appointment/meeting.
7.7Carol also told me she wanted to think about changing her will and would discuss it at our next meeting.
[18] Mrs Wooster gave instructions for two new EPOA documents, though those instructions changed over the following few weeks.
[19] Mrs Wooster revisited the question of her will in early February. Ms Koia made a file note of a conversation she had with Mrs Robinson on 1 February 2023. The note recorded that Mrs Robinson had told her Mrs Wooster “was also wanting a will ‘in her lucid moments’”.
[20] Ms Koia sensibly indicated she would not allow the new EPOAs to be signed, nor would she take instructions about a new will, without formal confirmation that Mrs Wooster had the mental capacity to make such important decisions. Ms Koia told Mrs Robinson she should arrange for Mrs Wooster to see a doctor, and that Ms Koia would require a medical certificate before the new EPOA could be signed and any new will could be made.
[21] Mrs Wooster had entered the care of Hospice Tairawhiti on 17 January 2023, though she was determined to remain at home throughout her illness. Dr Anna Meuli, from the hospice, visited Mrs Wooster at home on 8 February and undertook a thorough assessment of Mrs Wooster’s capacity to change her EPOA and make a new will. Dr Mueli provided her contemporaneous notes and explained them in her affidavit as follows:
22.As recorded in my notes, I explored with Carol the various factors relevant to Carol’s cognitive capacity and testamentary capacity. I found she was able to understand the concept of appointing an EPOA and making a will. She displayed good understanding of her current health status, that she had a terminal illness, and her function was likely to deteriorate. For this reason she wanted Brenda, whom she trusted and was involved in her care, to be able to make decisions for her when she was no longer able to. She was able to tell me that while she had a pre-existing EPOA order and will, her level of involvement with the family members she had previously identified as EPOAs and beneficiaries had changed. She understood the concept of a will, of leaving her assets and possessions to those she named. She had many possessions that held significant importance to her (some possibly sentimental more than financial value) and she wanted to clearly nominate who these would go to. She displayed an understanding of her finances – she was able to tell me she owned her house, and had no significant debt. She knew the name of her bank. She was able to retain the information discussed. In terms of potential beneficiaries, she did not have any children nor a partner. Her siblings and other family had different levels of involvement in her life. She seemed particularly grateful to those who were caring for her in her current illness. This was enabling her to stay at home, which was very important to her. In regards to being free of any “disorders of the mind” I considered the following. I was aware that she had episodes of hallucination when taking her initial opioid medication. However these had resolved when I reviewed her and I did not think she displayed any ongoing opioid-related neurocognitive effects. She had acknowledged moments of forgetfulness but seems able to understand, retain, and communicate information clearly during my assessment visit.
23.I comment on one passage in my notes: “She has not seen some of the family (brother and niece) who were appointed to EPOA roles for many years”. In the course of preparing this affidavit, I have been advised that (a) Carol had one brother, Mr Noel Petherick and that his daughter (Carol’s niece) is Ms Denise Clevis, and who are the parties in the proceeding, (b) that Carol in December 2022 and before, had communicated to others that she wished to remove her brother and niece from her business/legal affairs, and (c) that Mr Petherick and Ms Clevis made several visits to Carol over January and/or February 2023. I have considered whether that apparent factual error as to when Carol last saw her brother and niece, affects my opinion as to whether or not Carol had testamentary capacity as at 8 February 2023. I consider that there may be various explanations for the discrepancy in what I recorded and what has been reported about family visits. Firstly, it may have been a conversational exaggeration (Carol feeling she had not seen them much for years, rather than not at all for years). Secondly, it may have been an instance of memory loss of their visiting, which may have been related to the episodes of fluctuating cognition that had been documented with medication use. At the time of my assessment her thinking seemed unaffected by medication.
[22] Later the same day, Dr Meuli addressed a medical certificate to Ms Koia’s law firm which read:
This is to confirm that I conducted a capacity assessment on Carol today and deemed her to have capacity at this point to appoint an EPOA for property and welfare and alter her will as she sees fit.
[23] On 9 February, Mrs Robinson passed on Mrs Wooster’s revised instructions for her EPOAs. Mrs Wooster had decided that for both her property and her personal care, Mrs Robinson should be her new attorney. She nominated Mr Petherick as the successor attorney for her property, and Ms Wicks as successor attorney for her personal care and welfare.
[24] Ms Koia visited Mrs Wooster at around noon on 10 February. She described the visit in her affidavit:
14.From my discussion with Carol and how she presented, and having received the medical certificate dated 8 February 2023, I considered there were no red flags as to her capacity when I saw her on Friday, 10 February 2023. Carol was in good spirits, relaxed and engaged. She did not present to me with any of the features as described by Brenda Robinson in our telephone conversation of 1 February 2023.
15.Carol then signed both of the enduring powers of attorney in my presence. Carol at the time had an issue with her right/signing hand. When the time came to sign the enduring powers of attorney Brenda was able to assist Carol to position herself so Carol could sign and initial the EPA documents unassisted, which she did in my presence.
… I later left the EPAs with Carol so she could arrange for the attorneys to sign as well. I did not at the time immediately sign the solicitor certificates on the EPAs … but in respect of both certificates I was satisfied as to Carol’s understanding as donor of the matters in paragraph 6 (Donor’s understanding) and 7 (Capacity of donor) of the solicitor certificates.
16.Carol then discussed with me, changes to her will. She told me she wanted to re-do her will. I did not have a copy of her previous will with me. Carol however had with her a photocopy of her previous will dated 20 February 2020, which was over stamped in red “COPY” on both pages. On the copy, in handwriting were various changes she wanted to make to the will. …
17.I was alone in the bedroom with Carol when discussing and taking Carol’s will instructions.
18.Brenda did not participate in and was not present in the bedroom during my discussions with Carol about her will. Nor was her husband Evan. My recollection was that the bedroom door was closed. …
19.I got the sense from Carol was that she was very thankful to her sister Brenda. It was something Carol said to me after Brenda left the room. She also expressed gratitude for Brenda’s husband Evan, also when
Brenda and Evan were not in the room. My sense of the situation was that Carol was not tense or fearful and from what I saw and heard, there were no indications or underlying signals or red flags that there was any influence or pressure on her about changing her will from Brenda Robinson or Evan Robinson or anyone else.
…
21.I went through with Carol each clause in her copy of the 2020 will, asking her about each one and saying, “Do you still want…?”. Carol was businesslike in her responses. Carol told me she had got Brenda to help her go through her things. I understood that to mean she was having conversations with Brenda about what she wanted done with her things generally (for specific gifts in her will) to make sure certain people got items special to her (Carol). I refer to the paragraph numbers in the 2020 will and the changes made by Carol:
21.1.Paragraph 2: She kept her brother Noel Petherick as executor but changed the successor executor to Evan Robinson
21.2.Paragraph 3(iii): She had an existing gift of her books to (her friend) Joyce Otton and added a gift of her Dove Clock to Joyce Otton.
21.3.Paragraph 4: She no longer wanted Andrea Fouhy as a residuary beneficiary and wanted her sister Brenda to replace Andrea Fouhy. Carol said she wanted to “replace Andrea with Brenda because Brenda has been helping her & Evan” (meaning Evan was helping her too).
21.4.Paragraph 3(vi): She changed the gift of her (late) husband’s gold Eagle watch, from her nephew Paul Louis Wooster, to Evan Robinson.
…
22.She made a new or additional gift of her Ronald van Ruyckevelt Eagle statue to go to her niece Debbie Jane Gardner. She wanted the Eagle statue to remain on the Petherick (side of) the family.
…
24.It was apparent to me that Carol already knew when I arrived, most of the will changes she wanted to make, and which had been written on the photocopy of the 2020 will. Carol’s will instructions to me were not in any way tentative. The other changes she made were either after I went over with her the 2020 will, clause by clause, or after she told me of other particular chattels which she wished to add to her will. I had the sense that she had a clear understanding of the chattels she owned and which were important to her and which she wished to include in the changes to her will, which were either already noted in the 2020 will or others she decided to include.
[25] 10 February 2023 was a Friday. Ms Koia said she returned to her office and prepared the draft will in accordance with Mrs Wooster’s instructions. In her affidavit she attested “the draft set out Carol’s firm instructions; Carol’s instructions were not tentative”.
[26] Mrs Koia spoke with Mrs Robinson on the morning of Monday 13 February; Mrs Robinson told her Mrs Wooster had died in the weekend.
[27] On 7 March 2023, Mr Petherick renounced his role as executor of the 2020 will. He is in his mid-80s and was unwell in early 2023. On 20 March 2023, Mrs Robinson and Ms Whitehead lodged a caveat to ensure no steps were taken with respect to Mrs Wooster’s estate without their being given notice.
[28] Ms Clevis, having succeeded Mr Petherick as executor upon his renunciation, applied for probate of the 2020 will on 2 August 2023. In her affidavit in support, Ms Clevis said:
5.I am aware of the existence of an unsigned Will that was prepared by the deceased’s solicitor just before death. I understand this Will was not signed by the deceased prior to her death. I understand there is an application to validate this will being prepared for filing in the Court.
[29] On 14 December 2023, the applicants filed this application, and on 2 February 2024, the Court directed it be served on Ms Clevis, Mr Petherick and Ms Fouhy. On 16 February, counsel for Mrs Robinson and counsel for Ms Fouhy filed a consent memorandum noting that Ms Fouhy does not oppose either the application to validate the 2023 draft, or for probate to be granted to Mr Robinson.
[30] While Mr Petherick renounced his role as executor of the 2020 will, he has not done the same with respect to the 2023 draft. Ms Clevis advised me her father’s health is now much improved, and that if the 2023 will is validated, Mr Petherick wishes to assume his role as executor.
The competing contentions
[31] Mrs Robinson’s case, at least with respect to the application for validation, is straightforward. She says Mrs Wooster had spoken for some time of her wish to
change her will, and that her desire to do so became more urgent when she fell seriously ill in late 2022. Though she was increasingly unwell in the first few weeks of 2023, Mrs Wooster’s intentions with respect to her estate were firm and clear. She told a number of people of her desire to remove Ms Fouhy from her will, and to make Mrs Robinson a beneficiary. She also spoke of her wish to remove Ms Clevis from any role in administering her will.
[32] It also appears Mrs Wooster told several people (including Ms Wicks, Mrs Robinson and Dr Meuli) of her intention to remove Mr Petherick from any role in administering her estate. As noted above, if she did say that in the way the witnesses described, it was not reflected in her instructions to Ms Koia. Not only did Mrs Wooster retain Mr Petherick as executor in her draft 2023 will, she named him as a successor attorney with respect to her property.
[33] In any event, Mr Piggin, on behalf of Mrs Robinson, submits the evidence of Dr Meuli and Ms Koia establishes that Mrs Wooster had sufficient testamentary capacity to make a new will on 10 February 2023, and that her instructions were firm and final. Moreover, the most significant change — Mrs Robinson’s replacement of Ms Fouhy as a residual beneficiary — was something Mrs Wooster had talked about for several months. Ms Fouhy, who is the only person who stands to be materially disadvantaged by the change, does not oppose the application for validation.
[34] As to the identity of the executor, Mr Piggin submits Mr Robinson should be confirmed in Mr Petherick’s place. He notes that Mr Petherick renounced his role as executor of the 2020 will due to ill-health, and has taken no steps with respect to the 2023 draft. He was served with these proceedings, but despite swearing an affidavit opposing validation, has not filed a notice of opposition to the application to grant probate in favour of Mr Robinson. He has not appeared at any stage of the current proceedings.
[35] Ms Clevis’s affidavit questions Mrs Wooster’s testamentary capacity. Ms Clevis says she visited Mrs Wooster several times in the days before she died. She says Mrs Wooster was plainly in pain, and was on strong medication, leaving her
drowsy. She suggests that those around Mrs Wooster in the period immediately prior to her death may have exercised undue influence.
[36] The balance of Ms Clevis’s affidavit expressed concern about matters which have no bearing on the validity of the 2023 draft. For example, Ms Clevis noted her immense disappointment that she and Mr Petherick were not informed of the changes Mrs Wooster was making. She also says that despite Mr Petherick’s status as executor of both wills, and her own status as substituted executor of the 2020 will, she and Mr Petherick have been excluded from any involvement in the administration of Mrs Wooster’s estate. She says other family members have refused to take their calls and that on one occasion when she visited Mrs Wooster’s house she was asked to leave and escorted from the premises. She is concerned that decisions about the estate — for example, a decision to rent out Mrs Wooster’s house — were made without consulting Mr Petherick.
[37] In argument, I asked Ms Clevis to list the things she was concerned about. She said, firstly, that she was uncomfortable with the magnitude of the change between the two wills. She said that Mr and Mrs Wooster had always intended to divide their collective property between the two sides of the family. The exclusion of Ms Fouhy, and her replacement as a residual beneficiary with Mrs Robinson, meant no-one on Mr Wooster’s side would receive much of value.
[38] Ms Clevis reiterated that she and her father felt shut out a lot of the time. Aside from feeling left out of the discussions which led to the changes to Mrs Wooster’s will and EPOAs, she was hurt that she was not informed of other important things, such as the whereabouts of Mrs Wooster’s ashes.
[39] That said, Ms Clevis agreed it was open to Mrs Wooster to change her mind about her will, including the distribution between the two sides of the family, if she wanted to. She acknowledged she was not suggesting that anyone around Mrs Wooster had manipulated the situation.
[40] In his affidavit, Mr Petherick asked the Court to decline Mrs Robinson’s application to validate the 2023 draft. He said he did not believe it accurately
expressed Mrs Wooster’s intentions. He said he last saw Mrs Wooster in January 2023, and she gave no indication that she wished to change her will. He suggested that the 2023 draft may have reflected a lack of testamentary capacity or undue influence. It is notable, in asking the Court to consider the latter possibility, that Mr Petherick appears to have been under the mistaken impression that Mrs Wooster’s instructions were conveyed to Ms Koia through Mrs Robinson.
[41] As already noted, Mr Petherick did not appear in opposition to either application, nor did his affidavit address Mr Robinson’s application to replace him as executor.
Legal Principles
[42]Section 14 of the Wills Act 2007 provides:
14 High Court may declare will valid
(1)This section applies to a document that—
(a)appears to be a will; and
(b)does not comply with section 11; and
(c)came into existence in or out of New Zealand.
(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
(3)The court may consider—
(a)the document; and
(b)evidence on the signing and witnessing of the document; and
(c)evidence on the deceased person’s testamentary intentions; and
(d)evidence of statements made by the deceased person.
[43] There is no dispute that the 2023 draft appears to be a will. It was unexecuted when Mrs Wooster died, so it does not comply with the formal requirements of a valid will under s 11 of the Act.
[44] The correct approach to an application under s 14 was recently summarised by Fitzgerald J in Re Ansin, relying on the helpful summaries by MacKenzie J in Re Beaumont and Re Campbell:4
(a)great care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so;
(b)under s 14(2), the inquiry is focussed on the will-maker’s intentions, rather than the formal steps taken to implement those intentions;
(c)the evidence that may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant considerations;
…
(e) there must be cogent evidence that the document reflects the deceased person’s testamentary intentions but the standard of proof to be applied is the ordinary civil standard; that is, the balance of probabilities.
[45] There is no doubt an unsigned will may be validated under s 14, provided it meets the requirements of s 14(2).5 In Gladwin v Public Trust, Woolford J observed that an unsigned will could be validated, provided there is cogent evidence the document was prepared on the instructions of the deceased, and that the deceased intended to sign it but did not get around to doing so before his or her death.6 As noted by Cooke J in Mason v Mason, preparation of a draft will on instructions to a solicitor “carries an implication that it reflects the deceased’s intentions”.7
Discussion
[46] I am satisfied the requirements of s 14(2) are met. The evidence discloses that Mrs Wooster expressed a clear intention, over several months, to change her will. Aside from her comments to Ms Wicks and Mrs Robinson, Mrs Wooster mentioned the possibility of making a new will when she first saw Ms Koia in January 2023, and discussed her intentions at some length with Dr Meuli on 8 February. Mrs Wooster
4 Re Ansin [2023] NZHC 3179 citing Re Estate of Beaumont [2013] NZHC 2719 at [11]; and Re Campbell (deceased) [2014] NZHC 1632, [2014] 3 NZLR 706 at [15]–[22].
5 See for example Gladwin v Public Trust [2011] 3 NZLR 566 (HC); Public Trust v Percy [2024] NZHC 102; and Re Estate of Clay [2023] NZHC 1726.
6 Gladwin v Public Trust, above n 5, at [22].
7 Mason v Mason [2022] NZHC 491, [2022] NZFLR 64 at [22].
had an annotated copy of her 2020 will with her when she met Ms Koia on 10 February, indicating she had given the matter careful thought. Ms Koia gave unchallenged evidence that Mrs Wooster’s instructions were firm and final.
[47] Ms Koia’s evidence about the manner in which Mrs Wooster presented when she visited on 10 February is sufficient to answer any concerns about Mrs Wooster’s capacity. It is clear that in the weeks before her death Mrs Wooster was not always lucid; indeed, Mrs Robinson’s comment, on 1 February, that Mrs Wooster wanted a new will “in her lucid moments” confirms there were periods when Mrs Wooster was not in a fit mental state to make important decisions.
[48] Dr Meuli’s assessment, and the medical certificate she signed on 8 February, are of only limited assistance. Dr Meuli confirmed that Mrs Wooster had reached a stage where her capacity to make important decisions fluctuated, and could change rapidly. The fact Mrs Wooster was clear and lucid on 8 February says nothing about whether she had capacity to make a new will two days later.
[49] Nonetheless, Ms Koia’s detailed account, supported by her contemporaneous notes, addresses any concern about Mrs Wooster’s capacity to make decisions about her property, and to sign her new EPOAs, during Ms Koia’s visit on 10 February.
[50] Similarly, I am satisfied no question of undue influence arises. Ms Koia was aware of Mrs Wooster’s vulnerability and alert for any sign she may not be making her own decisions. Ms Koia gave unchallenged evidence that she saw no red flags and had no reason to believe anyone was influencing Mrs Wooster or had placed her under any pressure.
[51] It follows I am satisfied it is appropriate to validate the 2023 draft. It is a document which appears to be a will, and I find it accurately expresses Mrs Wooster’s testamentary intentions.
The executor
[52] As already noted, Mr Petherick formally renounced his role as executor of the 2020 will; he was unwell in early 2023 when Mrs Wooster died. He has not signed any similar document with respect to the 2023 will. Mrs Clevis advised from the bar that Mr Petherick’s health has now improved, and he is willing and able to fulfil his responsibilities as executor if the 2023 will is validated.
[53] I am not persuaded that Mr Petherick should be passed over as executor. Despite the evidence of several witnesses that Mrs Wooster wished to remove him from any role in her affairs, it is clear she decided he should remain involved. She could have removed him as executor of the 2023 will if she wished, but made a final decision to retain him in that role.
[54] Mr Petherick is the instituted executor. As MacKenzie J held in Re Estate of Clamp, the circumstances in which the instituted executor may be replaced by a substituted executor depend, in the first instance, on the terms of the will.8 Clause 2 of the (now validated) 2023 will provides:
2. I appoint my brother Noel Rupert Petherick as my executor and trustee. However, if Noel Rupert Petherick dies before me or is living at my death but is unwilling or unable to act then I appoint Evan Robinson to be my executor and trustee.
[55] Mr Petherick did not predecease Mrs Wooster, nor has he indicated he is unwilling or unable to act. None of the conditions permitting Mr Robinson’s appointment as substituted executor have arisen. Mrs Wooster wanted her brother to be her executor, and he is entitled to fulfil that role if he wishes.
[56] I am conscious that Mr Petherick is elderly, and did not consider he was well enough to act as executor of the 2020 will. I am encouraged by Ms Clevis’s advice that his health has improved and that he is now in a position to undertake the role, but I have not heard from him directly on the point.
8 Re Estate of Clamp [2014] NZHC 540, [2014] 2 NZLR 707 at [19].
[57] It remains open to Mr Petherick to renounce his role, as he did with respect to the 2020 will. He should not assume his duties under the will unless he is well enough to do so; there is a substitute executor available if he prefers not to be involved. But the conditions for his removal have not been met, and Mr Petherick has the right to act as executor if he wishes.
Costs
[58] Mr and Mrs Robinson have asked to be heard on the question of costs. If they wish to make an application I will receive a memorandum within 10 working days, and Ms Clevis will have a further 10 working days to respond. That said, my preliminary view is that no award should be made. Ms Clevis has no personal stake in either will. I consider she acted responsibly, as substituted executor of the 2020 will, in seeking to test the circumstances in which the 2023 will was made. The estate would inevitably have incurred significant costs assembling and presenting the evidence required to validate the 2023 will regardless of Ms Clevis’s opposition. And, of course, the application to oust Mr Petherick as executor has been unsuccessful.
Result
[59] I make an order under s 14(2) of the Wills Act 2007 declaring that Mrs Wooster’s 2023 draft will, a copy of which is appended as exhibit A to the affidavit of Brenda Fay Robinson dated 14 December 2023, is a valid will.
[60] I dismiss the application for probate to be granted to Mr Robinson. Now the will has been validated an application for probate should be made in the usual way. Mr Petherick is the executor of the newly-validated will. I encourage him to move promptly either to apply for probate or to renounce his role. Mr Robinson and the beneficiaries may have remedies under s 19 of the Administration Act 1969 in the event of unreasonable delay.
[61] Costs are reserved. If the applicants wish to apply for costs they may file a memorandum within 10 working days of delivery of this judgment. If they do so, Ms Clevis may file a memorandum in response within a further 10 working days.
Boldt J
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