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…

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 Sawers v Schofield

Details

AGLC: Sawers v Schofield [2016] NZHC 2889
Case: [2016] NZHC 2889
Decision Date: 1 December 2016

CaseChat Overview and Summary

The case of Sawers v Schofield was heard in the High Court of New Zealand. Christine Sawers, the daughter of the deceased, Nita Schofield, objected to the execution of her mother's last will and sought to have it declared invalid on the basis that it was procured by undue influence by Gary Schofield, Nita's son and the named executor of the will. The court had to determine if there were sufficient grounds to hold a full inquiry into the matter.

The court considered the circumstances under which the will was executed, including the timing of the will, the significant changes to the bequests, and the medical condition of Nita at the time. The court was also concerned about the lack of explanation for the changes in the will, the difference in the doctor's assessment of Nita's mental capacity, and the conflicts in the evidence. The court found that there were concerning circumstances that warranted a full inquiry.

The court granted the application and ordered that the executor apply for administration in solemn form. The order nisi should not be made absolute. This means that the will cannot be probated until a full inquiry is held to determine if undue influence was indeed exerted on Nita when she executed the will.

Orders