Sandblant v Ormsby - [2020] NZHC 2128

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV2019-404-2567

[2020] NZHC 2128

UNDER Part 18 of the High Court Rules.

IN THE MATTER`

Of the estate of RABURN ROBERT WALLACE

BETWEEN

ANTHONY CLIVE SANDLANT AND ROBERT DUDLEY BERRY

Plaintiffs

AND

GAYLENE ORMSBY AND PATRICIA WALMSLEY

Defendants

Hearing:
20 August 2020

Via Virtual Meeting Room

Counsel:

A Eager for Plaintiffs

J K Gilby-Todd for Gaylene Ormsby R Sutton for Patricia Walmsley

Judgment:

20 August 2020

ORAL JUDGMENT OF WHATA J

Solicitors: Hesketh Henry, Auckland
Harkness Henry, Hamilton Swarbricks, Te Awamutu

SANDLANT & ANOR v ORMSBY & ANOR [2020] NZHC 2128 [20 August 2020]

[1] Raburn Robert Wallace (Ray) died on 4 March 2019. He made his last will dated 17 September 2009 (the 2009 will). This will appointed the plaintiffs to be executors and trustees. They applied for probate. However, the death certificate records, among other things, “cognitive impairment 10 years”. This raises an issue as to whether, as at the date of the will, Mr Wallace had testamentary capacity. The plaintiffs submit that there is sufficient evidence that he had capacity but, if not, that I should grant probate in respect of a 2007 will (the 2007 will).

Background

[2] The 2009 will gives all of Ray’s estate to his wife, Phyllis Leon Wallace (Phyllis), should she survive him by 14 days. The plaintiffs are appointed as executors. Phyllis died before the deceased, on 28 February 2017, so the residue under this will will be divided as follows:

(a)One-half to the deceased’s sister Carmel Naomi Spencer-Payne (Mrs Spencer-Payne);

(b)One-twelfth to Mrs Wallace’s niece June Walmsley (June);

(c)One-twelfth to Mrs Wallace’s niece Lorraine Joyce Gash (Lorraine); and

(d)One-third to Mrs Wallace’s niece Gaylene Ormsby (Gaylene).

[3] The 2007 will appointed Mrs Wallace as executor and trustee and gave the entirety of the deceased’s estate to her, provided she survived him by 14 days. In the event Mrs Wallace died before the deceased, the 2007 will appointed the plaintiffs as executors and trustees. The residue under this will is divided as follows:

(a)One-half to Mrs Spencer-Payne.

(b)One-half to June, Lorraine and Gaylene as tenants in common in equal shares.

(c)In the event of June, Lorraine and Gaylene dying before the deceased, her children would take her share as tenants in common in equal shares, the effect of this clause being that each woman would receive one sixth of the deceased’s estate.

[4] The effect of the 2009 will is to adjust the relative shares of the nieces as follows:

(a)June and Lorraine — from one-sixth to one-twelfth each; and

(b)Gaylene — from one-sixth to one-third.

[5] Gaylene supports the 2009 will. June supports the 2007 will, though she abides the decision of this Court.

Circumstances of the making of 2009 will

[6] Turning then to the circumstances of making the 2009 will. Ray’s 2009 will was prepared by Mr Bryan Hugh McDermott, a senior legal executive with Hesketh Henry, with some 35…

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 Sandblant v Ormsby

Details

AGLC: Sandblant v Ormsby [2020] NZHC 2128
Case: [2020] NZHC 2128
Decision Date: 20 August 2020

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, considered an application for the grant of probate for the will of Raburn Robert Wallace (Ray) who passed away on 4 March 2019. The will, dated 17 September 2009, appointed the plaintiffs as executors and trustees. However, the death certificate indicated that Ray had suffered from cognitive impairment for ten years, raising questions about his testamentary capacity at the time of the will's execution. The plaintiffs argued that Ray had the requisite capacity and, alternatively, that the 2007 will should be granted probate. The defendants, Gaylene Ormsby and Patricia Walmsley, supported the 2009 will and the 2007 will respectively.

The court had to determine whether Ray had testamentary capacity when he executed the 2009 will. The primary issue was whether Ray understood the nature and effects of the will and had full possession of his mental faculties. The court considered the evidence provided, including the file notes from the will's preparation, the contemporaneous evidence of Ray's mental state, and the lack of any medical evidence suggesting Ray lacked capacity at the time of the will's execution. The court found that the evidence indicated Ray was intelligent and had a firm grasp on his affairs, moral obligations, and testamentary wishes. The significant changes between the 2007 and 2009 wills were explained by Ray's lack of recent contact with his nieces, June and Lorraine. The court concluded that Ray had testamentary capacity when he executed the 2009 will.

The court granted probate for the 2009 will, finding that the plaintiffs had discharged the burden of proving Ray had testamentary capacity. The plaintiffs were to receive their reasonable costs from the estate, while Gaylene and June were to bear their costs on a 2B basis. The court acknowledged the defendants' properly raised issues and the helpful submissions from all counsel.

Orders