Tavendale v Hargreaves - [2013] NZHC 2374

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-001081 [2013] NZHC 2374

IN THE MATTER OF THE ESTATE OF MARGARET RUTH AUSTIN

BETWEEN

MARK JOHNATHAN TAVENDALE AND EUAN BOYD LINDSAY HILSON

Applicants

AND

PENELOPE ANN HARGREAVES

Respondent

Hearing:

5 September 2013

Appearances:

J M Ling for Applicants Respondent Appears in Person

Mr Webb as McKenzie Friend for Respondent
P A Robertson as Amicus Appointed by the Court

Judgment:

11 September 2013

JUDGMENT OF D GENDALL J

Table of Contents

Para No

Introduction	[1]
Background	[7]
The underlying dynamics	[23]
The present proceedings	[32]
Discussion
- Lack of testamentary capacity	[37]
- Undue influence	[53]
An aside	[56]
Conclusion	[57]
Costs	[60]

MARK JOHNATHAN TAVENDALE AND EUAN BOYD LINDSAY HILSON v PENELOPE ANN HARGREAVES [2013] NZHC 2374 [11 September 2013]

Introduction

[1] Margaret Ruth Austin (the deceased), died on 22 May 2012 aged 91. The applicants in this proceeding, Mark Johnathan Tavendale and Euan Boyd Lindsay, Hilson were the executors and trustees appointed under her last will executed on 6 November 2007 (the November 2007 will). They have applied for a grant of probate.

[2] This case involves a dispute over the validity of that November 2007 will.

[3] One week after the death of the deceased, her daughter, the respondent Penelope Ann Hargreaves (Ms Hargreaves) on 29 May 2012 lodged a caveat in this Court against the granting of probate of any will of the deceased.

[4] Subsequently, an order nisi was made by this Court on 4 October 2012 granting probate of the November 2007 will of the deceased. The present application before the Court seeks an order pursuant to s 61(d)(i) of the Administration Act 1969 that this order nisi be made absolute and that the respondent’s caveat be discharged.

[5] Ms Hargreaves has opposed the making of the order nisi absolute and effectively claims, amongst other things:

(a)that the deceased, her mother, lacked testamentary capacity from about 2003 until her death, and certainly at the time of signing the November 2007 will; and

(b)that the applicants and the deceased’s son, her brother, Mr John Austin, exerted undue influence over the deceased when she made her November 2007 will.

[6] The hearing of this matter before me was to determine whether the order nisi was to be made absolute, whether the caveat of Ms Hargreaves was to be discharged,

or whether the order nisi was to be discharged or this matter was directed to proceed as an application for probate in solemn form.

Background

[7] As I have noted above, the deceased was 91 when she died. Her husband, Colin Laurence Austin, pre-deceased her, having died on 19 August 1989. She had four children, Mr John Austin, the respondent Ms Hargreaves, Diana Margaret Sidey (Ms Diana Sidey) and Robert Henry Austin who pre-deceased her. At the time of her death the deceased had 10 grandchildren, being three children of Mr John Austin, four children of Ms Diana Sidey, one child of Ms Hargreaves, and two surviving children…

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.

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Details

Case: [2013] NZHC 2374
Decision Date: 11 September 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the applicants Mark Johnathan Tavendale and Euan Boyd Lindsay Hilson sought a grant of probate for the will of the deceased, Margaret Ruth Austin. The respondent, Penelope Ann Hargreaves, opposed the grant of probate, arguing that the deceased lacked testamentary capacity and that undue influence was exerted upon her. The central legal issues were whether the deceased had the requisite testamentary capacity at the time she executed her will and whether undue influence was exercised by the applicants or others. The Court found that the deceased, despite her diagnosed dementia, had lucid intervals and sufficient understanding to execute her will. There was no evidence of undue influence by the applicants or others. Consequently, the Court granted the applicants' request for probate and discharged the respondent's caveat.

Orders