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 current account balance) to Melvyn and Calvert in equal shares. Of the estate’s residue, Mrs Ruesink gave:

(a)a 20 per cent share to Melvyn;

(b)a 20 per cent share to Calvert; and

(c)a 10 per cent share to Philip.

[9]        In a codicil in June 2014 (the background to which is discussed in more detail below) she gifted the farm property and her shares in Willownook Farm Ltd to Melvyn,

Calvert and Philip, rather than to just Melvyn and Philip.1

[10]      The 2019 will reduced materially Philip’s entitlements. It bequeathed all interests in the farm property and Willownook Farm Ltd (including its current account balance) to Melvyn and Calvert in equal shares. It gifted $50,000 to Philip and released him from the repayment of any debts he owed Mrs Ruesink at the date of her death. Of the residue of her estate, she gave:

(a)a 25 per cent to Melvyn; and

(b)a 25 per cent to Calvert.

Factual narrative

[11]      Philip has not given evidence in the proceeding but evidence in support of his position has been given through two affidavits of Mr Peters, who was the accountant for Mrs Ruesink, her husband and their businesses from 1979 until his retirement in 2018. Mr Peters has said that after Mrs Ruesink’s husband, Henk, passed away in 2003, Philip looked after Dorothy. She had failing eye sight due to glaucoma which ultimately let to her being blind and she had other health issues. Mr Peters has said that, latterly, Mrs Ruesink suffered from dementia. Mr Peters has spoken of Philip and Dorothy’s “close and special relationship” and of the way in which Philip would drive her about, get her groceries and provide general help at her home. When her health declined, Philip moved Mrs Ruesink into the rest home in which she then came to live, and he obtained a job there. However, in 2014, Philip was sentenced to imprisonment and was unable to look after her from this time.

[12]      Mr Peters, in his affidavit, has spoken of a discussion he had with Mrs Ruesink in 2014 about her 2014 will. He raised with her a concern that it provided for the farm property to go just to Melvyn and Calvert in circumstances in which, on his understanding of matters, Mrs Ruesink had wished for Philip to have an interest in the

1      And she changed the shares that two named societies were to receive from her estate.

farm property also. Mrs Ruesink said, on Mr Peters’ evidence, that she had provided for Philip to receive an interest in the farm. When Mr Peters read the relevant clause to her, it became clear, Mr Peters has said, that Mrs Ruesink had intended for Philip to have a share in the farm property and had not intended for the clause to read as it did. It is for that reason, on Mr Peters’ evidence, that the 2014 codicil was prepared.

[13]      Angela Stafford (Ms Stafford) is a director of Wain & Naysmith. She took Mrs Ruesink’s instructions for a new will in 2019 and she witnessed the signing of the will. She has given evidence of meeting with Mrs Ruesink at the retirement village on 30 August 2019 to talk about the possible sale of the farm property following an approach from a potential purchaser to her firm. Mrs Ruesink was not interested in selling but discussed with Ms Stafford at that time changes that she wanted to make to her will. Ms Stafford has said in her evidence that Mrs Ruesink no longer wanted Philip to receive a share of the farm property.

[14]      After meeting with Mrs  Ruesink  again  on  9  September,  on  1  October  Ms Stafford wrote to Mrs Ruesink’s general practitioner, Dr Jennifer O’Donnell. In a detailed letter, Ms Stafford asked Dr O’Donnell to meet with Mrs Ruesink and to confirm, through a medical certificate, that Mrs Ruesink had testamentary capacity. A certificate  was  not  received.  Ms Stafford  has  said  that  she  followed  up  with  Dr O’Donnell two weeks later on 15 October and that at that time she had a discussion with Dr O’Donnell who confirmed Mrs Ruesink’s testamentary capacity.

[15]      On 18 October, Ms Stafford and Ms Seaton, also a director at Wain & Naysmith, met with Mrs Ruesink to discuss her will instructions. Both formed the view, recorded in file notes made at the time, that Mrs Ruesink had the capacity to change her will and that her instructions were clear.

[16]      While there is no direct written evidence about Mrs Ruesink’s testamentary capacity in 2019, there is evidence that Mrs Ruesink was diagnosed in early 2021 as not having testamentary capacity. That evidence comes from two sources:

(a)Notes of  a  consultation  with  Mrs  Ruesink  by  Dr  O’Donnell  on 23 February 2021.2 The notes record Mrs Ruesink as being quite confused about the terms of her will and about any provision made for Philip. It records poor outcomes from cognitive assessments. Under the heading “Plan” it is said that “memory is poor and difficult to be able to say she has the capacity for change to will”. It was recommended that specialist geriatrician or neurologist be consulted.

(b)In an email from Ms Seaton to Mr Peters on 28 March 2023, Ms Seaton said, in response to an inquiry about assistance for Philip upon his release from prison:

After speaking with you I visited Dorothy. I could not ascertain whether Dorothy had the required capacity to provide instructions to me. … I asked Dorothy’s GP, who also couldn’t ascertain this. I therefore involved a geriatrician who has recently completed a very comprehensive assessment, and who has determined that Dorothy does not have capacity.

[17]The geriatrician’s report is not in evidence.

[18]      On 28 May 2022, Melvyn as executor of the estate applied for probate in common form of the 2019 will. The directors of Wain & Naysmith renounced probate. Philip’s caveat was filed on 5 August 2022 and Melvyn’s application for an order nisi was filed on 21 September 2022.

[19]      In a notice of appearance, filed on 25 January 2023, Philip sought that Melvyn be required to obtain a grant of probate in solemn form or, in the alternative, that the order nisi in favour of Melvyn be discharged. The grounds on which Philip’s position is based are described in the notice of appearance as follows:

(a)that the order should not have been made as the will-maker was blind and the will did not include the statement required by r 27.18(2)(b) of

2      A printout of Mrs Ruesink’s medical records was attached to the submissions of counsel for the applicant of 11 May 2023. A document referred to in those notes was, subsequently, obtained by counsel for the applicant and provided through an affidavit from Melvyn sworn on 16 June 2023. The additional document is a written note of Dr O’Donnell’s 23 February 2021 assessment.

the High Court Rules 2016 (requiring evidence to be submitted to the Court under r 27.16 before an Order could be made);

(b)there was doubt as to the will-makers testamentary capacity given that she was blind, suffering from dementia and of very advanced age; and

(c)the applicant was asked for evidence as to Mrs Ruesink’s understanding but refused to give it.

Legal principles

[20]      Under s 61(d) of the Administration Act, the Court may order that an order nisi be made absolute or discharged or, alternatively, that the application for administration should be made in solemn form. An order nisi is essentially an interim order that enables an applicant to administer (but not distribute) a deceased’s estate, pending the determination of any challenges to the appointment of executors or to the will itself.3 To use the words in s 61, it is then for the caveator at a hearing to “show cause” as to why the applicant should not administer the estate in accordance with the will.

[21]      Unlike an application for probate in solemn form, which requires pleadings and a contested hearing, the caveator at a “show cause hearing” need only show sufficient reasons as to why, without that further inquiry, the executor should not administer the estate. In order to discharge the onus of showing cause, it is not necessary for a caveator to prove to the civil standard the existence of grounds that would lead to the challenged will being declared invalid.4 The standard involved has been described as a requirement to establish an element of doubt.5

[22]      In Re Estate of Antoniadis, Isac J identified the following “well-established principles” as applying at a “show cause” hearing:6

(a)the onus is on the caveator to show why the order nisi should not be made absolute;

3      Jurisich v Harris [2016] NZHC 525, [2016] NZAR 754 at [3].

4      O’Neill v O’Neill [2018] NZHC 1356 at [11].

5      Van der Kaap v Wilson CA97/04, 14 June 2005, citing Re Nissembaum [1939] NZLR 94 (SC).

6      Re Estate of Antoniadis [2023] NZHC 775 at [19] referring, amongst other authorities, to Re Estate of Turk [2020] NZHC 1495 at [12], [13], [16] and [34].

(b)to discharge the onus, the caveator has to raise sufficient grounds to establish either that the order nisi should be discharged or that a full inquiry is appropriate;

(c)the threshold for satisfying the Court that there are grounds for a full inquiry is low;

(d)the practice of the Court in a show cause hearing is not to decide the ultimate issue as to the validity of the will;

(e)the Court does not usually resolve disputed facts at a show cause hearing. Rather, if the caveator’s evidence is disputed, the Court normally orders the application for administration to proceed in solemn form; and

(f)if a caveator does not raise sufficient grounds to establish that a full inquiry should be made into the matters raised by the caveator, the order nisi will usually be made absolute.

[23]      The Court of Appeal in Van der Kaap v Wilson outlined the usual approach to show cause hearings as follows:7

… the conventional course is for the caveator to provide such evidence as is readily available to support the caveator and for those propounding the will to either submit to a requirement to proceed in solemn form or alternatively to deny that the caveator has raised enough to prevent the order nisi being made absolute. The High Court does not usually resolve issues of fact under s 61.

[24]      I go on to consider whether the caveator has raised enough – whether he has established an element of doubt – to prevent the order nisi being made absolute.

Analysis

First ground – the attestation clause

[25]      Under r 27.18 of the High Court Rules, if a will-maker was blind, then evidence must be given satisfying the Court that the will-maker at the time the will was signed:

(a)thoroughly understood the will; or

(b)had full knowledge of its contents.

7      Van der Kaap v Wilson, above n 5, at [34].

[26]      Under r 27.16, a person who knows the relevant facts personally may provide the evidence required by r 27.18.

[27]The attestation clause in the 2019 will is in the following terms:

SIGNED by DOROTHY COLEEN RUESINK (she being blind) in our presence and attested by us in her presence. We certify that the will was read over to and understood by her before she signed it.

[28]      In  addition,  Ms  Stafford  has  confirmed  in  her  affidavit  that,  before   Mrs Ruesink signed the will, “I read the will to her aloud and she seemed to understand it thoroughly.”

[29]      In those circumstances, the requirements in rr 27.16 and 27.18 are made out and this ground of challenge cannot be maintained.

Second ground – testamentary capacity

[30]      There are two aspects of the evidence that lead me to the conclusion that Philip has discharged his burden to show cause that Melvyn should be directed to apply for probate in solemn form, notwithstanding the affidavit of valid execution. The first is the uncertainty that is present on the evidence as to whether Mrs Ruesink was confused, when she made her 2019 will, about the terms of her 2014 will and the change that was being made. And the second is the unresolved medical evidence on the state of Mrs Ruesink’s testamentary capacity when she made her will in 2019.

(a)     Possible confusion in 2019

[31]      As mentioned earlier, Mrs Ruesink’s 2019 will reduced materially Philip’s share in her estate. Mr Peters has said in his evidence that, under the 2014 will, Philip would have received, in broad terms, $1.6 million and that the 2019 will reduced his share by around $1.5 million.

[32]      Ms Seaton has said in her evidence that Mrs Ruesink gave clear instructions to reduce Philip’s share of her estate. The file note of her meeting with Mrs Ruesink on 18 October 2019 describes the changes discussed with Mrs Ruesink and records that

Mrs Ruesink had asked a number of times whether she needed to leave anything to Philip. A discussion followed about leaving Philip a nominal amount.

[33]      The file note of the meeting records also a discussion with Mrs Ruesink as to why the will was being changed to be less advantageous to Philip. The file note records the reasons for changes being that:

·Dorothy had forgotten about the codicil she had signed – she had thought that the vineyard was only being left to Melvyn and Calvert anyway, and that’s what she wants.

·She hasn’t seen either Philip or his wife for a long time.

…

I discussed with Dorothy how [Mr Peters] often told me how much Philip had done for Dorothy. Dorothy absolutely didn’t agree that Philip had done much for her.

…

She felt she should leave him something as a token but nothing substantial.

[34]      It is Ms Seaton’s opinion that Mrs Ruesink’s instructions in 2019 were consistent with what Mrs Ruesink had told her on a number of occasions previously.

[35]      As Ms Stafford has put it, her file note of her 30 August meeting records instructions on the basis that Mrs Ruesink believed that Philip had already received a lot of money from her as she had paid his legal bills. His instructions were, as recorded in the file note of that meeting, that “he’s had help”.

[36]      Mr Peters, on the other hand, has said that, unlike Ms Stafford, who had not met Mrs Ruesink before taking her instructions for the 2019 will, or Ms Seaton, who began acting for Mrs Ruesink in 2013, he had known Mrs Ruesink for 40 years at the point in time at which she signed her 2019 will. During that time he said that he had never heard Mrs Ruesink say that she had “done enough” for Philip. To the contrary, it is said that the care that Philip provided for her over a decade or more was such that Mrs Ruesink always intended to provide for him and that she was plainly confused, then, when she was making the changes to her will in 2019. As Mr Peters has put it:

Accordingly, and for the above reasons I have very real concerns as to Dorothy’s true understanding of what she would have done in 2019, and whether she actually intended to make such a major change as far as Philip was concerned. Further at that stage she simply would have had no idea as to the changes affecting the value of her property and therefore the value of her estate, and consequently what the effect would be on Philip.

[37]      The submissions for Philip refer to Ms Seaton’s affidavit where it is noted that Mrs Ruesink was unaware in 2019 that the 2014 codicil to her will gave Philip a third of the farm property. That does, as is said for Philip, beg the question as to why she would then want to change her will to reduce Philip’s share.

[38]      This factual issue is not something that can be resolved in an order nisi hearing. However, I am satisfied that the affidavit evidence conflicts to such an extent that there is a live question as to Mrs Ruesink’s testamentary intentions and her understanding of her previous will at the time at which her 2019 will was executed.

[39]      It is unclear as to when or why Mrs Ruesink changed her mind about leaving a third of her property to Philip and as to whether she had a good understanding of the arrangements she had made in 2014.8

(b)     Possible dementia and issues with medical certification

[40]      There are three aspects of the affidavit evidence that establish elements of doubt over whether or not Mrs Ruesink was suffering to some extent from dementia in 2019.

[41]      First, there is force in the submission for Philip that the affidavit evidence does not address appropriately the allegation that Mrs Ruesink had dementia and lacked testamentary capacity. While submissions for Philip have raised also the issue of  Mrs Ruesink’s blindness and her advanced age, I see the prospect of her dementia being of most concern.9 Ms Stafford, Ms Seaton and Ms Davison have all said in their evidence that they had no concerns about Mrs Ruesink’s capacity. They have said that,

8      I do observe that Mr Peters retired in 2018 and has not clarified when his last discussion with Mrs Ruesink was about her will and the provision that would be made for Philip.

9      See Banks v Goodfellow (1870) LR 5 QB 549, where it was said that the soundness of the mind, and not the particular state of bodily health, is to be considered when assessing testamentary capacity.

before the will was signed, it was read to Mrs Ruesink in full and that she seemed to understand it fully.

[42]      Ms Davison – a lawyer in the firm which acted for Mrs Ruesink – has said in evidence that she had met Mrs Ruesink in 2016, 2018 and 2019, when she witnessed the execution of her will. She said that she was aware that Mrs Ruesink had limited vision and that she did not notice any deterioration in Mrs Ruesink’s condition between these visits that would give rise to a cause for concern with testamentary capacity. Similarly, Ms Seaton has said that she met Mrs Ruesink on a number of occasions, including when drafting her previous will and codicil in 2014. It is her evidence that Mrs Ruesink’s instructions for the 2019 will were clear and consistent with earlier discussions.

[43]      Mr Peters has said that, not only did Ms Stafford, Ms Seaton and Ms Davison not know Mrs Ruesink well enough to assess her capacity, but none of them have expertise in assessing dementia.

[44]      However, before completing the drafting of Mrs Ruesink’s will, Ms Stafford wrote to Mrs Ruesink’s general practitioner, Dr O’Donnell, asking for the doctor’s assessment of Mrs Ruesink’s testamentary capacity. For Philip it is said that it was written out of concern as to capacity. But, as Ms Stafford said, she did not have any particular concerns as to capacity but that, given Mrs Ruesink’s age, she “considered it good practice to check with her GP”.

[45]      Whatever the case, there is no direct evidence of Dr O’Donnell’s assessment. When,  two  weeks  later,  no  reply  had  been  received,  Ms  Stafford  contacted   Dr O’Donnell. In an email she sent to Ms Seaton on 15 October 2019, she said “I don’t have it in writing but Dr O’Donnell has confirmed that Mrs Ruesink has capacity to execute will”.

[46]      Counsel for Philip makes the point that this is hearsay evidence. Counsel for Melvyn emphasises, fairly, that the evidence is advanced, not to prove its content, but to show that Ms Stafford did make inquiry of Dr O’Donnell. The evidence can be accepted on that basis but it does leave an evidentiary gap. The letter to Dr O’Donnell

asked whether she would visit Mrs Ruesink at the retirement home but we have no information whether that occurred, of what Dr O’Donnell did, if anything, to reach a view as to testamentary capacity and the certification that was sought was not provided in any form.

[47]      Secondly, I am concerned that – as mentioned in [16(b)] – around 16 months later it is known that a geriatrician determined that Mrs Ruesink did not have testamentary capacity; a view that appears to have been shared by Dr O’Donnell and recorded in the file note mentioned in [16(a)]. The geriatrician’s report would have been directly relevant to the points that are in issue here, but it is not in evidence. Because dementia is a condition that develops gradually, the relevance of these 2021 assessments [repeating] to Mrs Ruesink’s capacity in 2019 will need to be considered in more detail than is possible at this stage in the process.

[48]      Thirdly, I am not satisfied that Mrs Ruesink’s medical records as provided by the applicant address the concern. With the exception of the 2021 note mentioned in [16(a)], the records contain only brief entries of Mrs Ruesink’s visits to her doctor and of the medications prescribed for various conditions, particularly her eyesight. Moreover, the records cover only the period from October 2018 to October 2019 and do not record any diagnoses that may have been made before that time.

[49]      Each of  these  matters  raises  questions  about  the  potential  decline  in  Mrs Ruesink’s capacity when she made the 2019 will.

(c)     Third ground – provision of documents

[50]      In exchanges between the solicitors for the parties, requests were made on Philip’s behalf for copies of the files held by the estate’s solicitors relating to the 2014 will and codicil and to the 2019 will.

[51]      I agree with counsel for the applicant that, because Philip is a legatee – and not someone who can claim under the Family Protection Act 1955 – he was not entitled to the files as of right at the time the requests were made without further justification. The allegation of a lack of capacity was only raised in the 25 January 2023 notice of appearance.

[52]      In any event, in light of my findings on the second ground, and the need for a more formal hearing as a result, I do not consider this ground of challenge in any further detail.

Conclusion and result

[53]      For these reasons, Philip has raised sufficient doubt in my mind as to whether Mrs Ruesink possessed testamentary capacity when she made her last will such as to require a full investigation. Therefore, Melvyn is directed to make an application for probate in solemn form. The doubt that I have expressed is not an indication of what the outcome might be on the ultimate issues relating to the validity of the will. That will need to be determined on the more comprehensive evidence that is needed to address the points that have been discussed in this decision.

[54]I make the following orders and directions:

(a)the caveator is successful in having shown cause for a full inquiry to be made;

(b)the executor under the last will of Dorothy Coleen Ruesink is to make an application for probate in solemn form under s 61(d)(iii) of the Administration Act 1969; and

(c)a case management conference should be scheduled to put in place a timetable for the exchange of any pleadings, evidence and submissions.

[55]      Costs are reserved until determination of the application for probate in solemn form.

Radich J

Solicitors:

Greg Kelly Law, Wellington for Applicant

Wisheart Macnab & Partners, Blenheim for Caveator