Saint v Ball

[2020] NZHC 2567

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-485-606818

[2020] NZHC 2567

IN THE ESTATE OF

JOHN ELLIOTT LAWFORD (Deceased)

BETWEEN

BELINDA BEVERLEY GWENDOLEN SAINT

Caveator

AND

DENISE JOY BALL, TIMOTHY JOHN LEWIS, AND ROBERT MCDOUGALL

FERRIER as executors of the ESTATE of JOHN ELLIOTT LAWFORD

Executors

Hearing:	29 September 2020
Appearances:	S Wyness for the Appplicant A McDonald for the Caveator
Judgment:	1 October 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on Thursday 1 October 2020 at 10am Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:………………………

Counsel:

S A Grant, Barrister, Auckland
A McDonald, Barrister, Auckland

Solicitors:

S Wyness, MacDonald Lewis Law, Auckland A J Sherlock, Hesketh Henry, Auckland.

SAINT v BALL, ESTATE of LAWFORD [2020] NZHC 2567 [1 October 2020]

[1]        An order nisi was granted on 24 July 2020. The matter was called before me for the caveator to show cause as to why this order should not be made absolute.

[2]        The caveator refers to the affidavit of  Mr  Lawford’s  general  practitioner, Dr van Roekel in which he makes the following observations:

12.I agreed with  her  [Dr  Casey]  1  March  2018  assessments  that  Mr Lawford had lost capacity in relation to both property and for personal care and welfare by that time, and that it was appropriate that his enduring powers of attorney be activated.

13.Over the 12 months prior to this assessment in March 2018, my impression was that Mr Lawford’s mental capacity had not declined significantly. I did not observe any negative change in his mental capacity when I saw him for my regular consultations over that time.

14.For this reason, I would expect that his capacity would have been similar had it been assessed when I first saw him in April 2017 to his state in March 2018. I do not recollect considering that Mr Lawford was competent in relation to property or personal care and welfare at any time since I started seeing him in April 2017.

[3]Based on this affidavit, the caveator seeks the following directions that:

(a)the executors disclose to the caveator the solicitor’s file held in respect of which probate is sought and prior wills and Mr Lawford’s medical records by 13 October 2020;

(b)the caveator’s evidence to be served and filed by 3 November 2020;

(c)the executors’ evidence to be served and filed by 24 November 2020; and

(d)thereafter, a two-hour hearing to take place at the first available date.

[4]        These orders are opposed. Ms Grant for the executors submits that there is no discovery for the purposes of s 61 of the Administration Act 1969, noting the decision of van der Kapp v Wilson.1 She also contends that the order be made absolute because Dr van Roekel’s opinion relates only to Mr Lawford’s capacity in relation to property

1      van der Kapp v Wilson CA97/04, 14 June 2005.

and for personal care, and does not relate to Mr Lawford’s testamentary capacity. On her submission, the better course is to make the order absolute, and then the caveator can apply to have it set aside.

Assessment

[5]As noted by the Court in van der Kapp:

[34] … On the return of an order nisi, the High Court usually decides whether the caveator has raised sufficient [cause] to show that a full enquiry should be made, see Re Nissenbaum [1939] NZLR 94 and Re Payne (1989) 2 PRNZ 432. For this reason the conventional course is for the caveator to provide such evidence as is readily available to support the caveat and for those propounding the will either to 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 genuinely disputed issues of fact under s 61.

[6]        Plainly, Mr Lawford’s testamentary capacity is a genuinely disputed issue of fact based on the available evidence. The resolution of this issue is not amenable to the nisi process. I see little point therefore in timetabling this matter to a hearing on whether the order nisi should be made absolute. I doubt cross-examination, without the full benefit of discovery in relation to Mr Lawford’s medical records, would enable the proper resolution of the issue as to testamentary capacity. Furthermore, whether observations in relation to a person’s capacity to manage property are sufficient for the purpose of fully assessing testamentary capacity is not a matter that should be resolved in a summary way.

[7]        On that basis, I discharge the order nisi. I direct that the matter should proceed in solemn form.

Costs

[8]        In relation to costs, the caveator should have her costs on a 2B basis. The executors shall have their reasonable costs out of the estate.