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Singleton v Marshall

Singleton v Marshall

Case [2019] NZHC 2486 1 October 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002401

[2019] NZHC 2486

BETWEEN ANN ELIZABETH SINGLETON and SUSAN HAZEL MARSHALL
Applicants/Respondents

AND

PETER JAMES MARSHALL

Respondent/Applicant

Hearing: 9, 10 September 2019

Appearances:

P J Stevenson for Applicants/Respondent C J Orton for Respondent/Applicants

Judgment:

1 October 2019

JUDGMENT OF VENNING J

This judgment was delivered by me on 1 October 2019 at 11.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: McVeagh Fleming, Auckland
Corban Revell, Auckland

Counsel: P Stevenson, Auckland

SINGLETON v MARSHALL [2019] NZHC 2486 [1 October 2019]

Introduction

[1] James Marshall died on 11 January 2018 aged 86. He left a will dated 11 April 2015 (the 2015 will) which divided his estate equally between his four adult children: Ann, Christine, Peter and Susan.

[2] In the weeks before he died another document was prepared which James did not sign but which, if accepted as representing his testamentary intention at the time, would alter the distribution of his estate in favour of Peter and Christine to the disadvantage of Ann and Susan.

[3] There are two applications before the Court. Ann and Susan apply under s 19(1) Administration Act 1969 for orders nisi for the administration of the estate pursuant to the terms of the 2015 will. Peter applies to have the document declared a valid will under s 14 of the Wills Act 2007 (the Act).

Factual background

[4] James was born in 1931. He married Shirley in 1954. They had four children and remained married until Shirley’s death in 1985.

[5] For some time there has been a tension between the four children. They fall into two camps, on the one side Ann and Susan, and on the other, Christine and Peter. Christine and Peter have had more contact with James, particularly over recent years.

[6] James made two wills: the first on 17 December 1998 and then subsequently, the 2015 will. Both the 1998 and 2015 wills provide for equal distribution of James’ estate between his four children. The only material difference is that the 1998 will appointed the Public Trustee as executor and trustee whereas the 2015 will appointed Peter as executor and trustee.

[7] On 12 December 2017 James was admitted to hospital. On 15 December, whilst in hospital, he was diagnosed with terminal cancer. James was discharged home on 22 December 2017 for palliative care. Because of his health he required assistance and care 24 hours a day, seven days a week.

[8] While at home the family prepared a roster to provide 24-hour care for James. Christine and Peter assumed responsibility for administering the roster.

[9] On the morning of 30 December there was a mix-up in the roster arrangements. Although there had been a change to the roster arrangements, Christine had overlooked telling Ann and Susan. They arrived at James’ home in the morning. Christine’s son Anton was already there and caring for…

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 Singleton v Marshall

Details

AGLC: Singleton v Marshall [2019] NZHC 2486
Case: [2019] NZHC 2486
Decision Date: 1 October 2019

CaseChat Overview and Summary

In Singleton v Marshall, the High Court was asked to decide whether an unsigned document, prepared in the form of a will, should be declared a valid testamentary document under the Wills Act 2007. The document, if admitted to probate, would alter the distribution of the deceased's estate in favour of two of his children, to the detriment of the other two. The Court found that the applicant, Peter, had not satisfied the Court that the deceased had the requisite testamentary capacity when the document was prepared, nor that the document represented his unconditional testamentary intention at the relevant time. The Court found that the deceased was physically and mentally unwell, confused and drowsy, and that his mental state and cognition were affected by his physical condition and the drugs he was taking. The Court also found that the document did not represent the deceased’s unconditional testamentary intention as he had intended to wait and complete a letter to his other daughters explaining the situation before signing the will. The Court dismissed the application under s 14 of the Wills Act 2007. The Court did grant the application by the other children for administration of the estate under the 2015 will, and appointed an independent person as executor and trustee of the will, as Peter, who was named as executor and trustee in the will, had a potential conflict of interest as a beneficiary under the will. The Court also directed that Peter pay costs in relation to the s 14 application, and that the costs in relation to the administration application be paid out of the estate.

Orders