Schuitema v Schuitema - [2023] NZHC 1473

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-489

[2023] NZHC 1473

IN THE MATTER of an application for an order of probate in solemn form in the estate of ELIZABETH PETRONELLA SCHUITEMA

BETWEEN

ROBERT PAUL SCHUITEMA and

ANTHEA JANE CONNOR as executors of the will
Plaintiffs/First Counterclaim Defendants

AND

SARAH SCHUITEMA

First Defendant/First Counterclaim Plaintiff

ROBERT PAUL SCHUITEMA

Second Defendant/Second Counterclaim Defendant

AND

JOHN JAMES SCHUITEMA
Second Counterclaim Plaintiff

SUSAN ELISABETH SCHUITEMA

Third Counterclaim Plaintiff

Hearing: Formal proof – on the papers

Counsel:

P R W Chisnall and D W Ballinger for Plaintiffs and First Counterclaim Defendants

Judgment:

13 June 2023

JUDGMENT OF RADICH J

SCHUITEMA AND CONNOR v SCHUITEMA AND ORS[2023] NZHC 1473 [13 June 2023]

Introduction

[1] Elizabeth Petronella Schuitema, who was known as Leisha (Leisha), died on 27 February 2021. In her most recent will, made in July 2019, she appointed her son, Robert Paul Schuitema (Robert) and her solicitor, Anthea Jane Connor (Ms Connor) as executors and she left her entire estate to Robert.

[2] In earlier wills, she had given sums of money to her five grandchildren and had bequeathed jewellery to two of her grandchildren.

[3] Leisha had five grandchildren: Robert’s two sons, Martin Schuitema and Ben Schuitema, and the children of her other son, Dick Schuitema (now deceased) – Sarah Schuitema (Sarah), John James Schuitema (John) and Susan Elisabeth Schuitema (Susan).

[4] When, on 6 April 2021, Robert and Ms Connor, as executors of the 2019 will, applied for probate in common form, Sarah lodged a caveat against the grant. The Court directed the application to be brought in solemn form1 which saw the filing of this proceeding in August 2021.

[5] Sarah filed a statement of defence pleading that Leisha was subject to undue influence on the part of Robert when she made her 2019 will and that she lacked the requisite capacity to execute the will. She sought that the will be set aside. Sarah then filed a counterclaim under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. John and Susan joined the proceeding as counterclaimants.

[6] Ahead of the trial of the proceeding, which was set down for 1 May 2023, the parties reached a settlement. The counterclaims were discontinued, the statement of defence against the grant of probate was withdrawn and Sarah’s caveat was removed. In a consent memorandum of 27 February 2023, the following orders were sought:

1 Schuitema and Connor v Schuitema & Ors HC Wellington CIV-2021-485-489, 21 June 2021 (Minute of Simon France J).

(a)a declaration that the 8 July 2019 will of Elisabeth Petronella Schuitema is valid; and

(b)an order that probate of the 8 July 2019 will be granted in solemn form with Robert Paul Schuitema, of Sydney, Australia, Company Director and Anthea Jane Connor of Wellington, Solicitor, appointed as executors and trustees.

[7] In a minute dated 14 March 2023 Grice J vacated the trial date and…

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 Schuitema v Schuitema

Details

AGLC: Schuitema v Schuitema [2023] NZHC 1473
Case: [2023] NZHC 1473
Decision Date: 13 June 2023

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, considered the application for an order of probate in solemn form of the estate of Elizabeth Petronella Schuitema. Leisha, as she was known, passed away on 27 February 2021, leaving a will dated July 2019 which appointed her son, Robert Paul Schuitema, and her solicitor, Anthea Jane Connor, as executors. The will left her entire estate to Robert, removing all gifts to her grandchildren that had appeared in her earlier wills. Sarah Schuitema, one of Leisha’s grandchildren, lodged a caveat against the grant of probate, leading to a legal proceeding. Sarah argued that Leisha lacked testamentary capacity and was subject to undue influence when she executed the 2019 will. She sought to set the will aside and filed counterclaims under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. The proceeding was settled before trial, resulting in the withdrawal of Sarah’s defence and counterclaims.

The court considered the principles of testamentary capacity and undue influence in determining the validity of the 2019 will. Testamentary capacity requires the testator to understand the nature of the act and its effects, comprehend and appreciate the claims to which they ought to give effect, and be free from any disorder of the mind that would poison their affections or prevent the exercise of their natural faculties. Undue influence involves a will maker being subject to mental coercion, requiring proof that the coercion overpowered the will maker's volition.

The court found that Leisha had testamentary capacity when she executed the 2019 will. Cognitive testing shortly after her stroke indicated impairment, but by the time the will was executed, her condition had markedly improved. Dr. Karunanidhi, who assessed Leisha, concluded that she had the capacity to understand the changes to her will and their implications. The court also found that Leisha was not subject to undue influence from Robert. The evidence showed that Leisha freely expressed her desire to change her will, met with her solicitor in private, and received independent advice about the changes.

The court concluded that the 2019 will was properly executed, valid, and dispositive. The orders made were that the will dated 8 July 2019 is the last will of Elizabeth Petronella Schuitema, that probate is to issue to Robert Schuitema and Anthea Jane Connor, and that costs are to lie where they fall.

Orders