Ruesink - [2023] NZHC 1578

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-611495

[2023] NZHC 1578

IN THE ESTATE of DOROTHY COLEEN RUESINK

Hearing: 20 June 2023

Counsel:

A S Cavanaugh for Applicant D J Clark for Caveator

Judgment:

23 June 2023

JUDGMENT OF RADICH J

[1] Dorothy Ruesink (Mrs Ruesink) passed away at the age of 96 years in May 2022. She and her husband, Henk Ruesink (who predeceased Mrs Ruesink) did not have any children.

[2] Mrs Ruesink, in a 2014 will amended by a codicil, left her estate in various proportions to her three nephews, Melvyn Owen James (Melvyn), Calvert Maxwell James (Calvert) and Philip Michael James Hayward (Philip). In a 2019 will, the share of the estate that Mrs Ruesink left for Philip was reduced significantly.

[3] Philip lodged a caveat against any grant of probate of the will in August 2022. Melvyn, who was granted an order nisi for the administration of the estate in November 2022, has applied under s 61 of the Administration Act 1969 (the Act) to make the order absolute.

[4] The issue is whether, under s 61 Philip has shown cause as to why the order should not be made absolute. He challenges the making of an absolute order on the

Re Estate of Ruesink [2023] NZHC 1578 [23 June 2023]

grounds that Mrs Ruesink did not have testamentary capacity when she made her 2019 will.

[5] If the Court finds that Philip did not raise sufficient grounds to show that a full inquiry should be made into Mrs Ruesink’s testamentary capacity when she made the 2019 will, then the Court will make the order nisi absolute and will grant probate to the executor. Conversely, if the Court finds that Philip has raised sufficient grounds, then the Court may order the application for probate to be made in solemn form.

[6] For the reasons I go on to give, I am satisfied that Philip has discharged the burden on him to show cause as to why the order nisi should not be made absolute and that it is appropriate to direct Melvyn to apply for probate in solemn form.

Background

The gifts and dispositions under the wills and the codicil

[7] Mrs Ruesink owned a four hectare property in Blenheim, called Willownook Farm (the farm property) which, on the evidence of her former accountant, Mark Peters (Mr Peters), has a value of somewhere in the order of $3.5 million. Willownook Farm Ltd, which operated the farm property, and in which Mrs Ruesink was the sole shareholder, has a cash resource to a value of approximately $500,000. And Mrs Ruesink has an investment portfolio to a value of approximately $3 million.

[8] In a will dated 9 May 2014, Melvyn and the directors of Wain & Naysmith Lawyers were appointed as executors of Mrs Ruesink’s estate. The will gave all of Mrs Ruesink’s interests in the farm property and in Willownook Farm Ltd (including its…

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.

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Details

AGLC: Ruesink [2023] NZHC 1578
Case: [2023] NZHC 1578
Decision Date: 23 June 2023

CaseChat Overview and Summary

The case concerns the estate of Dorothy Coleen Ruesink, who passed away in May 2022. Her 2019 will, which significantly reduced the share of her estate left to her nephew, Philip Michael James Hayward, has been challenged by Philip. The court was tasked with determining whether Philip had sufficiently demonstrated cause under section 61 of the Administration Act 1969 for why the order nisi for the grant of probate should not be made absolute.

The primary legal issue was whether Philip had established grounds to question Mrs Ruesink's testamentary capacity at the time of executing her 2019 will. This involved assessing whether there was an element of doubt that would warrant a full inquiry into her capacity.

The court found that there were significant doubts regarding Mrs Ruesink's understanding of her previous will and the changes she intended to make in 2019. Conflicting evidence from witnesses suggested that Mrs Ruesink may have been confused about the provisions of her 2014 will and the changes she was making in 2019. Additionally, there was unresolved medical evidence indicating that Mrs Ruesink had dementia and lacked testamentary capacity by early 2021, raising questions about her capacity in 2019. The court also noted deficiencies in the medical certification process and the lack of direct evidence regarding Mrs Ruesink's capacity at the time of executing the will.

The court concluded that Philip had shown sufficient cause to doubt Mrs Ruesink's testamentary capacity when she executed her 2019 will. As a result, the order nisi was not to be made absolute, and Melvyn Owen James, the executor, was directed to apply for probate in solemn form. The court also ordered a case management conference to establish a timetable for the exchange of pleadings, evidence, and submissions.

In light of these findings, the court ordered that Melvyn was to make an application for probate in solemn form and scheduled a case management conference. Costs were reserved until the determination of the application for probate in solemn form.

Orders