Sawers v Schofield

[2016] NZHC 2889

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-485-603744 [2016] NZHC 2889

IN THE MATTER

of the estate of NITA ISABELLA

SCHOFIELD

BETWEEN

CHRISTINE ROBYN SAWERS Applicant

AND

GARY STEWART SCHOFIELD Respondent

Hearing:	17 November 2016
Appearances:	G J C Ferguson for Applicant D M OʼNeill for Respondent
Judgment:	1 December 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 1 December 2016 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

SAWERS v SCHOFIELD [2016] NZHC 2889 [1 December 2016]

Introduction

[1]      Nita Isabella Schofield died in Hamilton in February 2016.  She is survived by  her  daughter,  Christine  Sawers,  and  her  son,  Gary  Schofield.1      Gary  is  the executor under her will made in November 2015 and has obtained an order nisi. Christine asserts undue influence by Gary.2    She opposes the making of an order absolute and seeks an order for probate in solemn form.

[2]      The matter has come before me as a “show cause” hearing under s 61(d) of the Administration Act 1969.  The purpose of the hearing is to determine whether there are sufficient grounds for a full inquiry.  Christine bears the onus of showing this, though it is recognised as a “fairly low threshold”.3

[3]      In considering whether sufficient grounds are made out, I bear in mind that proof of undue influence rarely comes in a direct form.  Usually it is determined by whether,  in  all  the  circumstances,  it  can  properly  be  inferred.4     Deliberate wrongdoing is not a pre-requisite for the proof of undue influence.  The question is not the motive of the person said to have influenced the will-maker unduly but, rather, the effect on the will-maker’s mind.5

The circumstances of the November 2015 will

The estate

[4]      Mrs Schofield’s estate is worth approximately $1.925m.   It includes three properties: Aberfoyle Street (approximately $465,000), Brookfield Street (approximately $370,000) and Surf Road (approximately $395,000).  There is also a share portfolio worth $155,582, $386,383 in cash held in bank accounts and approximately $153,665 cash held in mutual funds, Mrs Schofield’s family trust or

overseas funds.

1      In their affidavits the parties referred to one another by their first names and, for convenience, I

do likewise.

2      Submissions made during the course of the hearing also suggested an alternative ground as to whether Mrs Schofield knew and approved the contents of her will upon execution.

3      Jurisich v Harris [2016] NZHC 525; Re Payne (1969) 2 PRNZ 432 (HC).

4      Green v Green [2016] NZCA 486; Re Dudley (Deceased) HC Auckland P1042/92, 14 May

1993; Mahon v Mahon [2015] NZHC 2143 at [28]; Re Keast [2015] 1072 at [7].

5      Green v Green, above n 4.

2013 will

[5]      In 2013 Mrs Schofield made a will under which Gary was the sole executor and Christine and Gary the beneficiaries, with gifts over to their respective children in the event of them pre-deceasing her.  To Christine she bequeathed her jewellery and the property at Brookfield Street.  To Gary she bequeathed her vehicle and the property at Surf Road.  The residue was to be divided equally between them.  That will  was  prepared  by  a  Hamilton  firm,  Harkness  Henry,  which  had  acted  for Mrs Schofield for some years.

The codicil to the 2013 will and appointment of Christine under Enduring Power of

Attorney

[6]      On 24 March 2015 Mrs Schofield, then aged 94, was admitted to Waikato Hospital.  She was diagnosed with leukaemia.  Gary, who lives in the US, held his mother’s power of attorney.  He was aware of his mother’s admission to hospital.  He says that his mother asked him not to tell Christine, though he did anyway because the situation was so grave.  In a small conflict on this point Christine says that she was advised of her mother’s hospitalisation by a neighbour of her mother ’s and went immediately from her home in Havelock North to Hamilton to be with her.

[7]      Doctors  recommended  a  bone  marrow  biopsy.     Christine,  a  scientist, understood what would be required and discussed it with her mother.  Mrs Schofield decided to proceed.   Christine says that, notwithstanding her mother’s decision to proceed with the treatment, hospital staff advised that Gary did not agree.  It is not clear  from  the  evidence  how  that  impasse  was  resolved  but  Mrs  Schofield  did proceed with treatment.

[8]      Christine says that on 29 March 2015 Mrs Schofield asked her to contact Harkness Henry and arrange for them to contact her at the hospital.  She also asked Christine’s husband, David Sawers, if he would accept appointment as a trustee of her family trust, the Schofield Family Trust, in her place.   This is a more serious point of conflict; Christine says her mother trusted David, who was an accountant. Gary says that Mrs Schofield did not regard David as family and would never have involved him in her financial affairs.

[9]      Christine and David returned to Havelock North.   Mrs Schofield appointed David a trustee of the Schofield Family Trust.  When Christine and David came back to visit on 2 April 2015 Mrs Schofield’s lawyer produced an enduring power of attorney that Mrs Schofield had instructed them to prepare.  Mrs Schofield asked if Christine would accept that role because she felt that Christine’s living in New Zealand would be helpful.   Although doubtful, because of Gary’s likely reaction, Christine agreed.

[10]     The same day, 2 April 2015, Mrs Schofield executed a codicil to her 2013 will under which she added Christine’s husband, David Sawers, as a co-executor with Gary.   This codicil was also prepared by Harkness Henry.   The 2013 will otherwise remained the same.

The August 2015 will

[11]   According to Gary, Mrs Schofield was unhappy about David Sawers’ appointment, did not want him involved in her affairs and felt that he had pressured her  into  the  appointment  as  a  trustee.    In  July  2015  Harkness  Henry  wrote  to Mrs Schofield.  They told her that Gary had contacted them “to question the will and enduring power of attorney arrangements we completed for you earlier this year”. Mr Peploe, the partner at Harkness Henry dealing with the matter, wanted to ensure that Mrs Schofield understood and continued to approve the will and power of attorney arrangements.

[12]     According to Christine, Mrs Schofield showed her the letter and told her that she was happy with the existing arrangements and was frustrated with Gary interfering with her affairs.   At the foot of the Harkness Henry letter there is Christine’s handwritten note confirming that she had conveyed to Mr Peploe that Mrs Schofield was happy with the arrangements but that he could telephone her himself (she was still in hospital).   Christine understands that Mr Peploe in fact visited Mrs Schofield.

[13]     Oddly, there was no affidavit from Mr Peploe.  Mr Ferguson, for Christine, said that this is because Gary, in his capacity as executor, declined to consent to

Harkness Henry providing information until last week, by which time it was too late to arrange an affidavit.  Mr O’Neill, for Gary, said that it was because he did not see any need for Mr Peploe to provide an affidavit at this point.

[14]     Mrs Schofield went home from hospital on 4 August 2015 and Gary arrived from the US two days later and stayed with her for the next four weeks.  There is conflicting  evidence  about  that  period.     Christine  and  Mrs  Schofield’s  then neighbours perceived that Mrs Schofield was being isolated and controlled by Gary who discouraged telephone calls and visits and replaced the caregivers who had been with her for some time.  On the other hand, Gary and other family friends deposed to a pleasant, friendly environment in which Mrs Schofield was extremely happy to have Gary with her and that he was solicitous in caring for her.   It is simply not possible to resolve these conflicts on the basis of the affidavits in the context of the current application.

[15]     While Gary was staying with Mrs Schofield she made another will.  This will was  prepared  by a different  firm  of solicitors,  Foster & Milroy,  who  had  been engaged specifically for that purpose.  Mark Milroy gave an affidavit explaining that in late July 2015 Gary contacted him and expressed concern that Mrs Schofield’s previous lawyers had had her sign a will and powers of attorney when she was seriously  ill  in  hospital  and  in  a  drugged  state.    Gary  was  of  the  view  that Mrs Schofield did not have capacity to sign those documents.

[16]     Mr Milroy considered  that  Mrs  Schofield  should  be assessed before she executed another will.  He arranged to meet her on 19 August 2015 at the surgery of her GP, Dr Wells and waited while Mrs Schofield went into Dr Wells’ surgery. According to Mr Milroy, Dr Wells confirmed that Mrs Schofield had capacity to execute  a  power  of  attorney  and  a  will  and  he  therefore  proceeded  to  have Mrs Schofield execute a notice of revocation of power of attorney to Christine, a new power of attorney appointing Gary in relation to property and personal care and welfare and a new will.

[17]     In comparison, Dr Wells deposed that he was asked to assess Mrs Schofield’s

mental condition for the purpose of granting an enduring power of attorney.  He did

not mention a will and the letter of confirmation that he provided, dated 19 August

2015, referred only to Mrs Schofield’s competency as to appointing an enduring

power of attorney.

[18]     Both Mr Milroy and Dr Wells referred to their impression of Gary as acting only out of concern for his mother and not appearing to exert any undue influence over her.

November 2015 will

[19]     Gary returned to New Zealand in mid-November 2015 – Christine suggested around 17 November and Gary did not refer to the date.   Within a week Gary contacted Mr Milroy to arrange a fresh will.  Mr Milroy was surprised, given that Mrs Schofield had made a will only three months before.

[20]     Dr Wells deposed that on 25 November 2015 Gary brought Mrs Schofield to his surgery to assess her mental state for the purpose of granting an enduring power of attorney.  Dr Wells said:

Her  speech  was  clear  and  her  reasoning was  logical.    She  was  able  to describe to me what an enduring power of attorney was.

She  was  very  clear  that  she  trusted  her  son  Gary  and  she  stated  this repeatedly.

She stated that she did not have the same level of trust in her daughter

Christine because she did not trust her daughter’s husband.

In her interaction with Gary, she would ask his advice or opinion at times and although she would take this into account, she appeared to me, to be capable of making her own decisions and articulating these to me.

[21]     Dr Wells went on to express the view that Mrs Schofield’s mental faculties had been adversely affected by a variety of factors during the months prior to the assessment on 25 November 2015, but thought that there was an improvement in her mental functioning prior to that date and that on that date she was of sufficiently sound mind to grant an enduring power of attorney.

[22]     Also on 25 November 2015 there was  a meeting at Mr Milroy’s office. Mrs Schofield arrived with Gary and her ex-husband, Keith Schofield, from whom

she had been apart for some 30 years.  Mr Milroy said that he asked Gary to leave while he discussed Mrs Schofield’s instructions with her.  He did not say whether Keith Schofield left as well.

[23]     Under the new will Gary was again named as sole executor and trustee. However, the bequests altered significantly.  Mrs Schofield bequeathed Gary artwork previously gifted  by him,  her vehicle,  all  bank  accounts  held  in  her  name, the property  at  Surf  Road  and  the  property  at Aberfoyle  Street.    To  Christine  she bequeathed her jewellery and Brookfield Street.   The residue was to be divided equally with a gift over to the grandchildren.   These changes meant that the bank accounts  and  Aberfoyle  Street  no  longer  formed  part  of  the  residue  in  which Christine would share but would go solely to Gary, reducing the residue of the estate by approximately $850,000 and, accordingly, reducing Christine’s share by some

$425,000.

[24]     Mr Milroy said:

In my own assessment, I found Nita [Mrs Schofield] to be quite animated and lively and in a much improved mental and physical condition than she was in August.  I had her deeds file available to me and I went through her latest will with her to determine what changes were required.

Nita confirmed the appointment of Gary as her sole executor after which we moved on to the specific gifts of property to Gary and Christine.   Nita expressed her satisfaction with the gifts made and added that Gary was to also receive the Aberfoyle property.  I did question her about this gift as it amounted to Gary receiving an additional property over and above what Christine was to receive.   Nita reiterated that she was happy with the distributions and felt Gary deserving.   I was satisfied that she understood what she was doing and the consequences of her actions.   On that basis I then had her will prepared which she executed in my presence and in the presence of Keith Schofield.   During this time Gary was outside of the meeting room waiting for his mother to finish her appointment. …

At no stage did I observe any suggestion or hint that Gary exerted any influence over his mother in the drafting of either of her Wills. Nita certainly held Gary in high regard, was very proud of his achievements and she was equally effusive about her daughter Christine.  Her only concerns related to Christine’s husband whom she felt had exercised undue influence over her daughter in terms of his appointment to her Trust and the execution of the new Will and Powers of Attorney all while she was hospitalised.  She said that these were not her daughter’s actions but those of her husband whom she did not trust.

[25]     Mrs Schofield executed the new will, the witnesses being Mr Milroy and

Keith Schofield.

Reasons for concern

[26]     The circumstances in which Mrs Schofield came to execute the November

2015 will cause me concern for the following reasons.   First, there is no apparent explanation for Mrs Schofield wanting to make a will so soon after her August 2015 will.   Secondly,  whilst  Mr Milroy did  seek  to  explore  the reason  for the  quite significant change from her earlier will, he was given only a vague answer about Gary being deserving.  Thirdly, Dr Wells described his assessment of Mrs Schofield in both August and November 2015 specifically as being in relation to enduring powers of attorney.   He made no mention of a will on either occasion.   This is especially   puzzling   in   relation   to   the   November   2015   assessment   because Mrs Schofield did not want or need to execute a fresh enduring power of attorney. The only thing being considered at that point was a fresh will.  The considerations in assessing testamentary capacity are different from those that relate to capacity for an Enduring Power of Attorney.   Fourthly, Christine referred in her affidavit (without challenge) to Mrs Schofield having had either a fall or a seizure leading to a fall on

22 October 2015, having begun chemotherapy again in late October 2015 and having had a further fall and a seizure on 6 November 2015, yet Dr Wells made no mention of those facts.

[27]     I also find some of the conflicts in the evidence puzzling.   There is an extraordinary difference between Christine and Gary over Mrs Schofield’s relationship with her ex-husband, Keith Schofield.  Christine says that it was poor, that they rarely saw each other and that she could not imagine a more unlikely person for her mother to have asked to witness her signature on such a personal document.  Gary on the other hand (and Keith Schofield) say that the relationship was a good one and that they saw each other frequently.

[28]     There are questions over the circumstances in which Mrs Schofield’s long- time  carers,  Dale  and  Hazel,  came  to  be  replaced.    There  are  questions  over Mrs Schofield’s attitude to Christine’s husband.

[29]     Finally, there are questions over documents produced by both parties.  There is a handwritten note by Mrs Schofield dated 19 August 2015 in which she declares that:

All legal documents signed by me on or around the 2 April 2015 whilst I was in hospital and under medication are invalid.  I was unaware of what I was signing and at that time I believed I lacked the capacity to understand the nature of the documents I signed.

[30]     That document was produced by Gary, but without explanation as to whether he had seen it at the time the will was signed on 19 August 2015 or whether he knew anything of the reason that Mrs Schofield came to write the note, coincidentally on the day she executed the August 2015 will.  Mr Milroy did not make any mention of the document  and  it  appears not  to  have surfaced  until  these proceedings  were commenced.

[31]     The second document is a handwritten letter addressed to Harkness Henry and signed by Mrs Schofield requesting a “detailed account of our conversations and meetings in April and July 2015, as well as details of the legal documents I signed” with a postscript asking for the response to be sent to a Post Office box at Havelock North.  Gary says that the handwriting of the letter itself is Christine’s, though the signature appears to be that of Mrs Schofield.  At the foot of the note Mrs Schofield has written “I did not write this!!”

[32]     Finally, there is a third document, a handwritten letter to Mr Milroy, dated

12 September 2015 and signed by Mrs Schofield in which she asks him to “write an account of which documents I have signed during August 2015 because I would like both  Gary and  Christine to  share power of  attorney and  my son-in-law (David Sawers) to be trustee of the Schofield Family Trust and co-executor of my will.” Mr Milroy   was   concerned   because   the   signature   appeared   different   to   the handwriting of the letter itself and he did not action it for that reason.    He did, however, ask Mrs Schofield about the letter in November 2015 and she said that although the signature was hers she had no recollection of signing it.  Nor did she agree with the contents.

[33]     As is evident, not all the issues that are of concern indicate undue influence by Gary.  Nor have I overlooked the evidence from Mr Milroy, Dr Wells and family friends as to the very harmonious relationship they observed between Gary and Mrs Schofield and their impression that she was not being unduly influenced by him. It may very well be that those observations would be borne out in a fuller inquiry. Overall, however, there are a number of concerning circumstances in the months leading up to Mrs Schofield’s last will that do justify a full inquiry.

Result

[34]     I  am  satisfied  that  the  order  nisi  should  not  be  made  absolute.    The application is granted. The executor is to apply for administration in solemn form.

P Courtney J