Schuitema v Schuitema
[2023] NZHC 1473
•13 June 2023
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 DefendantsAND
SARAH SCHUITEMA
First Defendant/First Counterclaim Plaintiff
ROBERT PAUL SCHUITEMA
Second Defendant/Second Counterclaim Defendant
AND
JOHN JAMES SCHUITEMA
Second Counterclaim PlaintiffSUSAN 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 directed that the application for probate in solemn form proceed by way of formal proof, with the executors to file and serve an affidavit and submissions in support.2 The appellants filed and rely on the affidavits of Ms Connor and Dr Chitra Karunanidhi.
[8] I am satisfied that the orders sought by the plaintiffs are appropriate for the reasons I give below.
Background
Leisha’s wills
[9] Leisha executed four wills. The first was prepared in October 2003 following her separation from her husband. Robert and Dick were appointed as executors. The will made bequests of jewellery to her two granddaughters Sarah and Susan. The residue of the estate was left to Robert and Dick in equal shares.
[10] The second will, executed in November 2011, appointed Ms Connor and Robert as executors (Dick, having passed away in 2004). The 2011 will bequeathed a diamond ring to Sarah together with paintings and furniture. It bequeathed jewellery and a dinner set to Robert’s wife, Margaret Schuitema, and it gifted $75,000 to Leisha’s sister`, Ineke Benjes-Nijisse. The residue of her estate was to go to Robert. Leisha had considered making gifts of AUD 20,000 to each of her grandchildren but, ultimately, decided against that.
2 Schuitema and Connor v Schuitema & Ors HC Wellington CIV-2021-485-489, 13 March 2023 (Minute of Grice J).
[11] The third will was executed in September 2017. Robert and Ms Connor remained the executors of the estate. The will bequeathed the diamond ring to Leisha’s niece Pauline Reardon (with the intention – although not specified in the will – that it would eventually be passed on to Sarah) and each grandchild was to receive $40,000. The residue was to go to Robert.
[12] The final will is dated July 2019. It appointed Robert and Ms Connor as executors, gifted all chattels to Robert (any unwanted items going to his sons) and left the residue of the estate to him (if he died before Leisha, then the residue would go to his sons in equal shares). It removed all gifts to the grandchildren. The diamond ring was no longer bequeathed to Ms Reardon.
Execution of the 2019 will
[13] The events leading up to the execution by Leisha of her 2019 will is discussed in more detail in the sections that follow but, for the purposes of the narrative at this point, a general description is provided of events in June and July 2019.
[14] Leisha suffered a stroke on 3 June 2019 and was admitted to hospital. She presented with a range of issues affecting her mobility and vision but, by the time of her discharge on 14 June 2019, her condition had improved materially and she moved into the hospital facility at Rita Angus Retirement Village.
[15] At Leisha’s request, Robert arranged for Ms Connor to visit Leisha at the retirement village for the purpose of organising certain aspects of her affairs. A new enduring power of attorney (EPOA) was to be considered together with papers that had been received relating to an occupation right for Leisha for a serviced apartment at the retirement village.
[16] Ms Connor and her secretary met with Leisha at the retirement village on 25 June 2019. Robert joined for the start of the discussion and then left Ms Connor to discuss Leisha’s affairs in private. It is Ms Connor’s recollection that Leisha seemed her usual “astute self” and that Leisha raised the issue of her will. She no longer wanted to leave anything to her grandchildren in her will and wanted to gift her diamond ring to her daughter-in-law – Robert’s wife. It is Ms Connor’s evidence that
she explained the potential implications of this decision and that she would need to write to Leisha’s general practitioner (GP) to ensure that Leisha understood the changes she was proposing.
[17] Ms Connor wrote to Leisha’s GP, Dr Karunanidhi, on 26 June 2019. Dr Karunanidhi visited Leisha on 28 June 2019 in private and interviewed her about the proposed changes to her will and the EPOA. Dr Karunanidhi’s evidence is that Leisha explained the changes she wanted to make to her will and her reasons for wanting to make an EPOA in favour of Robert, which included a concern that her health might deteriorate further. After assessing Leisha and consulting with a geriatric consultant, Dr Karunanidhi concluded that Leisha had the required mental capacity to execute a new EPOA and make the changes to the will. A certificate recording his opinion was signed on 1 July 2019 and sent to Ms Connor.
[18] Ms Connor arranged to meet with Leisha again on 8 July 2019. She met with Leisha in private, read her will aloud to her and explained the changes. It is Ms Connor’s evidence that Leisha confirmed the changes to reflect her wishes, that Leisha was fully aware of what she was doing and that she understood the changes.
Procedural principles
[19] If a caveator raises sufficient grounds to establish that a full inquiry is appropriate3 an application for letters of administration needs to be made in solemn form. Such a process requires formal pleadings and a fully contested hearing.4 The Court may only grant probate if it is satisfied that the testator had capacity and that, otherwise, the will was properly made.
[20] Given the settlement described in [6] above, the Court is hearing the proceeding by way of formal proof under r 15.9 of the High Court Rules.
3 Which is the case here, as directed in Schuitema v Schuitema & Ors, above n 1.
4 Jurisich v Harris [2016] NZHC 525, [2016] NZAR 754 at [7].
[21] The obligation is on the plaintiffs to file affidavit evidence establishing, to the Court’s satisfaction, the cause of action relied on.5 The plaintiffs are not required to engage with any affirmative defence, set off, or counterclaim.6
[22] A will is valid if it complies with s 11 or is declared valid under s 14.7 Section 11 requires the will to be in writing, signed and witnessed as described in subss (3) and (4), and to provide evidence of compliance with subs (4) in the ways described in subs (5).8
Assessment
[23] While, as mentioned in [21], in a formal proof process, the plaintiffs are not required to engage with affirmative defences or counterclaims, in circumstances in which the first defendant and the counterclaim plaintiffs have raised (although they have now withdrawn) issues about testamentary capacity and undue influence, I do need to consider those matters when determining whether the will has been properly made.
Legal principles – testamentary capacity
[24] The principles relating to the assessment of testamentary capacity were set out by the Court of Appeal in Woodward v Smith.9 There, the Court re-stated the principles laid down many years ago in Banks v Goodfellow:10
(1)Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.
(2)It is essential to the exercise of such a power that a testator:
(i)understands the nature of the act and its effects; and also the extent of the property of which he is disposing;
(ii)is able to comprehend and appreciate the claims to which he ought to give effect;
5 High Court Rules 2016, r 15.9(4).
6 Ferreira v Stockinger [2015], NZHC 2916 at [33]–[36].
7 Wills Act 2007, s 7.
8 Section 11.
9 Woodward v Smith [2009] NZCA 215 at [19]. They were confirmed and repeated by the Court in
Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19].
10 Woodward v Smith, above n 9, at [19], citing Banks v Goodfellow (1870) LR 5 QB 549.
(iii)be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
…
(5)In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
(6)A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
(7)Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all.
(8)Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair and just testament.
(9)But if that standard is not met, he will lack capacity.
[25] Applicants for probate do not need to establish that the will maker had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue.11 Because, here, there is evidence which raises testamentary capacity as a tenable issue, the plaintiffs have the onus of satisfying the Court, on the balance of probabilities, that the will maker did have testamentary capacity.12
Discussion
[26] The statement of defence filed by Sarah called into question Leisha’s testamentary capacity at the time the 2019 will was executed as she “had a stroke on
11 Bishop v O'Dea (1999) 18 FRNZ 492 (CA) at [3].
12 Loosley v Powell, above n 9, at [20], citing Bishop v O'Dea, above.
3 June 2019 causing her short term memory loss, 40% vision loss and dementia”. The plaintiffs submit that the evidence establishes clearly that Leisha had testamentary capacity to the requisite standard when she executed the 2019 will.
[27] The hospital records recorded that Leisha presented with blurry vision to her right side – found to be a stroke – and that she had unsteadiness and general mobility issues. It recorded that she was “at risk of delirium” and that there was some evidence of reduced cognitive ability. Cognitive testing indicated a “significant level of cognitive impairment”. However, the hospital discharge record then notes that Leisha had developed adequate and improved mobility to perform daily living activities, making her a candidate for rest home care.
[28] On 14 June 2019 Dr Dodd, another GP at Leisha’s practice, visited Leisha following her request for a “do not resuscitate” listing after cardiac arrest. Dr Dodd noted that Leisha was repeating things every five to 10 minutes, indicating impaired short-term memory, but that her long-term memory was good. Dr Dodd noted the cognitive testing outcomes mentioned in [27] and suggested that the testing be repeated as Leisha’s condition could improve.
[29] Dr Karunanidhi assessed Leisha shortly before she executed the will on 28 June 2019 using a standard capacity interview approach informed by her practice and by a GP information booklet. Dr Karunanidhi informed herself of the “collateral information” that triggered the capacity assessment, conducted the interview without family present and then consulted with a geriatrician to confirm her view. Her opinion was that Leisha understood the effect of the will changes and communicated clear reasons for removing her grandchildren; that she was aware of the consequences (a potential claim against her estate); that she understood the nature of her assets and financial position; that she showed insight into her condition and understood that it could deteriorate; and that she demonstrated a reasonable level of cognition and memory function at the interview.
[30] Ms Connor and Dr Karunanidhi have both discussed in their evidence the reasons Leisha gave them for including specific bequests for her grandchildren, as had been the case in her 2017 will. The issue of bequests to Leisha’s grandchildren had
been a feature of the previous wills. Leisha had equivocated in her previous wills over bequests for her grandchildren. As mentioned in [10] above, she had considered giving her grandchildren monetary gifts in her 2011 will but, ultimately, decided against it, telling Ms Connor that she did not want to leave them anything as it was “against my nature to give them anything” on the basis that she had not expected anything when her grandfather had died and she did not think that her grandchildren would expect anything when she died. In her 2017 will, she decided that she would give $40,000 to each of her five grandchildren but, when it came to considering the terms of her 2019 will, she decided that those gifts would not be maintained.
[31] Leisha was explicit with Ms Connor that she did not want to leave her grandchildren anything from her estate, saying that she no longer had any meaningful relationship with John, Sarah or Susan.
[32] While Leisha had, in her 2017 will, bequeathed a diamond ring to her niece, her instructions to Ms Connor in 2019 were that the ring should be retained by her family; explaining how grateful she was to her son and his wife Margaret for the love and support they had shown to her over the years.
[33] While, when Leisha was admitted to hospital in June 2019 following her stroke, cognitive testing indicated cognitive impairment, I accept that the testing outcomes are not a conclusive indicator that she lacked testamentary capacity five weeks later when the will was executed. As Dr Karunanidhi explained, the cognitive testing in question is a screening test for cognition and does not indicate whether a person has capacity to make a particular decision. Further cognitive testing was not considered as it was not standard practice to conduct testing of that sort in the course of a capacity assessment. I accept that a risk of delirium is not the same as a diagnosis of delirium.
[34] Moreover, it can be seen from the evidence that, while Leisha’s cognitive functioning was reduced with the stroke, it was considerably more acute at the time of her hospital admission than was the case as her condition improved. By the time she was discharged from hospital and moved to the retirement village, the evidence shows the improvement to be marked.
[35] Furthermore, as the principles set out in Woodward v Smith provide, a testator does not need to possess the same capacity as possessed by them previously and “testamentary capacity does not require a sound and disposing mind and memory in the highest degree”.13 While the stroke did cause Leisha to have reduced vision, this is a factor relating to her bodily health, not to her mental capacity.14
[36] I am satisfied, on the balance of probabilities, Leisha had testamentary capacity when she executed her 2019 will. She understood the nature of the act and its effects, was able to comprehend and appreciate the potential claims against her estate and was, in terms of the principle mentioned in paragraph [24] above, free of any “disorder of the mind”.
Legal principles – undue influence
[37] Undue influence will be found to exist where a will maker is subject to mental coercion to make a will in particular terms. It goes beyond mere persuasion and requires positive proof that the coercion overpowered the volition of the will maker. The party alleging undue influence has the burden of proving, on the balance of probabilities,15 that the power to influence was exercised and that the will that resulted would not have been created but for the exercise of that influence.16
[38] Circumstances bearing directly or indirectly on the free will of the will maker are relevant and include illness, pain and suffering, physical weakness and mental deterioration, and dependency on others in legal, business, social, medical and/or domestic matters.17 The preparation of a will by an independent solicitor, who conferred with and advised the will maker in private, is a relevant consideration in showing that the will maker understood the decision they were making.18
[39] It was pleaded in the statement of defence that Leisha was under undue influence to attend the meeting referred to in [16] above, that she could not say certain
13 Woodward v Smith, above at n 9.
14 As described in the factors set out in Woodward v Smith and Banks v Goodfellow, above n 9.
15 Loosley v Powell, above n 9, at [35].
16 At [36].
17 Halse v Lawrey [2023] NZHC 223 at [35].
18 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [35].
things as Robert was present at the beginning of the meeting, that she had expressed strong disagreement with her move to a retirement home and that her finances were so controlled by Robert that she needed to agree with everything he said.
[40] While the plaintiffs do not need to disprove allegations of undue influence, I nevertheless consider the evidence to be clear in showing that Leisha was not subject to undue influence from Robert.
[41] The factors that had been raised as being relevant to the undue influence issues are these: Robert had financially supported Leisha over the years, had a power of attorney for Leisha’s affairs (and was to be granted, through the EPOA, full powers over her affairs) and had arranged the meetings between Ms Connor and Leisha. Dr Karunanidhi’s evidence was that Leisha sought an EPOA to prevent other family members from taking advantage of her financially. The emails exhibited in Ms Connor’s evidence show that Leisha asked Robert to engage a face-to-face meeting with Ms Connor. He then arranged the follow-up meeting at the request of Ms Connor who had received the certificate from Dr Karunanidhi. As Ms Connor said in her evidence:
From my observations of Leisha there was no question of any pressure being exerted by her son Robert. Leisha had freely raised the topic of amending her will at the 25 June meeting, after Robert had left me to consult with Leisha in private. Robert’s involvement in arranging meetings with Leisha was not in my experience unusual given the circumstances of Leisha’s recent stroke. Family members will often be involved in setting up meetings when a relative has had their health take a turn for the worse.
[42] I accept that Leisha explained freely her desire to change the will and her reasons for doing so at the meeting of 25 June 2019 with Ms Connor, when she was assessed by Dr Karunanidhi on 28 June 2019 and when she met with Ms Connor again on 8 July 2019. At each of these meetings, Robert was not present during discussions about the will. Moreover, Leisha was given independent advice about the effect of the changes to her will; another factor that points away from undue influence.19
19 Green v Green, above.
[43] Accordingly, I am satisfied on the balance of probabilities that Leisha was not subject to any form of undue influence from Robert, or otherwise, when she signed her 2019 will.
[44] For all of these reasons, I am satisfied that a grant of probate of the 2019 will should be made in solemn form. I accept that it is properly executed, valid and dispositive.
Result
[45]I make the following orders:
(a)The will dated 8 July 2019 is proved in solemn form to be the last will of Elizabeth Petronella Schuitema.
(b)Probate of the last will of Elizabeth Petronella Schuitema is to issue to Robert Schuitema and Anthea Jane Connor.
(c)Costs are to lie where they fall.
Radich J
Solicitors:
Oakley Moran, Wellington for Plaintiffs and First Counterclaim Defendants
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