Simpson v Kirkwood

[2019] NZHC 454

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002052

[2019] NZHC 454

IN THE MATTER

of the estate of GWENYTH MARY NERHENY

UNDER

Part 18 of the High Court Rules

BETWEEN

MARY JOY SIMPSON and JOHN STEPHEN KIRKWOOD

Plaintiffs

Hearing:	13 March 2019
Counsel:	N Penman-Chambers for Plaintiffs
Judgment:	14 March 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 14 March 2019 at 4 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Hesketh Henry, Auckland.

Estate of NERHENY [2019] NZHC 454 [14 March 2019]

Testamentary capacity?

[1]    Miss Gwenyth Nerheny died 22 December 2017. She was 94. Her death certificate records “Pneumonia 2 weeks”, “Frailty bed ridden 2 months” and “Dementia 4 years”. The last explains this judgment: Miss Nerheny’s testamentary capacity was not the subject of medical opinion when she made her last will. Hence the application by Miss Nerheny’s solicitors for probate in relation to it, or either of Miss Nerheny’s earlier wills (made when she did not suffer dementia).

Background

[2]    Miss Nerheny did not marry. She was a devout Catholic. Her estate comprises a mortgage-free home in Auckland, worth approximately $1.4 million, and cash of approximately $25,000. Miss Nerheny’s made three wills: A, B and C.

A

[3]    A was made 30 May 2016. $80,000 is to be given to the Discalced Carmelite Nuns Trust Board and $10,000 to Father Andrew Nguyen. Electronic equipment is to be given to the Carmelite Nuns. The residue is to be divided equally between the Roman Catholic Diocese of Auckland; the Regional Superior for New Zealand of the Order of Friars Minor; and St Joseph’s Mercy Hospice.

B

[4]    B was made 24 March 2015. There are only two differences from A. No provision is made for Father Nguyen and the Hillsborough Bowling Club may buy Miss Nerheny’s home. If it does not, the home becomes part of her residuary estate.

C

[5]C was made 19 December 2012. C is like A, save Father Nguyen is to receive

$5,000, not $10,000; $4,000 is to be given to Miss Dorothy Coster, a  friend of   Miss Nerheny; and $1,000 and personal chattels to Ms Helen Corbett, Miss Nerheny’s god-daughter. Unlike B, C does not offer the Hillsborough Bowling Club opportunity to buy her home.

Test for testamentary capacity

[6]The test is not in doubt. In short, a testator must understand:1

(a)She or he is making a will, and the effect of doing so.

(b)The extent of property being disposed of.

(c)The moral claims she or he ought respect.

[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”.2 Nor must the testator “possess such capacity to the same extent as previously”.3 But, the testator must understand the things at [6].

Analysis

[8]    Miss Nerheny’s solicitors accept they must satisfy me Miss Nerheny had testamentary capacity when she made A. I am satisfied she did for five reasons.

[9]    First, A is very much like B and C, both of which Miss Nerheny made when she  did  not  have  dementia.   And,  nothing  about  A  is  surprising.    Second,    Ms Loren Gerbich, a lawyer, was present when Miss Nerheny signed A. Ms Gerbich had  no  concern  about  Miss  Nerheny’s  testamentary  capacity.  She  thought   Miss Nerheny “reasonably lucid”. Ms Gerbich made a timely file note. That note supports Ms Gerbich’s assessment (for example, it records a joke Miss Nerheny made about a box of chocolates). Third, Miss Nerheny called her lawyers on 16 June 2016, saying she did not want to give the bowling club an option to buy her home. While this suggests Miss Nerheny had forgotten she had already decided this, it also demonstrates consistency of intention. Fourth, on this occasion, Miss Nerheny asked her lawyers to make a file note.   This implies a distinct presence of mind.   Fifth,   Dr Robyn Toomath, a doctor, assessed Miss Nerheny on about 5 September 2016 in relation to a possible move to a rest home. Dr Toomath thought Miss Nerheny

1      Bishop v O’Dea (1999) 18 FRNZ 492 at 494.

2      Loosley v Powell [2018] NZCA 3 at [7].

3 At [8].

“rational” and capable of making decisions. Taken together, these matters establish Miss Nerheny had testamentary capacity when she made A.

Result

[10]I grant probate (in solemn form) in relation to A.

……………………………..

Downs J