Tavendale v Hargreaves
[2013] NZHC 2374
•11 September 2013
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 |
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 of Mr Robert Henry Austin. Her estate appears to be in the order of
$750,000 comprising mainly stocks, shares and bonds.
[8] The deceased made wills on 22 November 1995, 22 August 2003,
15 November 2004 and 6 November 2007. The terms of the 2003, 2004 and 2007 wills seem to be largely the same, but for a change of trustees in 2004 and an amendment possibly by way of update to distribution of the deceased’s chattels. Those wills all provided for a $5000 cash legacy to each of the deceased’s 10 grandchildren, totalling $50,000 with the balance of her estate divided equally between her daughters, Ms Hargreaves and Ms Diana Sidey.
[9] The previous 1995 will differed in that it did not include the $50,000 cash legacy to the grandchildren, Instead, this would simply form part of the deceased’s residuary estate and, other than a distribution of certain chattels and horses, this entire residue was to pass to her daughters, Ms Hargreaves and Ms Diana Sidey equally.
[10] The 1995 will, and a later 2002 codicil to that will were all prepared for the deceased by her solicitors at the time, Lane Neave. The 2003, 2004 and 2007 wills were prepared by new solicitors she instructed then, Goodman, Steven, Tavendale (now Goodman, Tavendale, Reid). In particular Ms Christine Susan Ross (Ms Ross), a solicitor working for Goodman, Steven, Tavendale at the time obtained instructions from the deceased and prepared the November 2007 will.
[11] The November 2007 will was signed by the deceased shortly after she sold a property she owned at the time at Withells Road, Avonhead to Ms Hargreaves’ daughter, Sophie. Also at that time she purchased an independent living townhouse at the Ngaio Marsh Retirement Village. There has been no suggestion at any time that this transaction to sell the Withells Road property to her granddaughter, Sophie, might be attacked for reasons of lack of capacity or the like.
[12] Before me all parties accepted however that the deceased at some point prior to her death was diagnosed with dementia. From the available medical evidence before the Court it seems that this dementia commenced around 2004. Dr Peter Wilkinson, the deceased’s doctor for more than 20 years up to August 2007 has given evidence that the deceased’s mental and physical health deteriorated in 2004. At about this time she was required to leave the farmlet on which she lived with her horses and move to a small back section property at Withells Road, Avonhead, where she was to live alone. Dr Wilkinson confirms that during the latter period of her time living at Withells Road, the deceased was suffering episodes of confusion and memory loss consistent with the onset of dementia.
[13] At some time in 2006 the deceased had a formal 3MS assessment of her cognitive function at Princess Margaret Hospital in Christchurch. In that test she scored 64 out of 100 and in his evidence Dr Wilkinson stated:
That sits in the category of moderate cognitive impairment...her short memory and her processing of day to day activities would be affected with that degree, certainly, even at a higher degree, at a higher number...long term memory is generally quite well preserved in dementias...I would have thought that her ability to know what her will was and what its effect is given that that would be an aspect of long term memory would have been relatively preserved especially given her family history.
[14] In early 2007 the deceased was moved from her Withells Road property to Ngaio Marsh Retirement Village after she was involved in a traffic incident involving what was said on her part to be a “hit and run” accident. According to Dr Wilkinson, this showed the likely effects of her dementia as indicated by the deceased’s uncharacteristic aggression on this occasion.
[15] Finally, in response to a question whether in about August 2007 the deceased would have been clearly aware of what she wanted in her will and to whom particular items were to go, Dr Wilkinson stated in his evidence that this:
...may have been a clear window of lucidity and knowing the items which she referred to, paintings etc, and to which children, grandchildren they were going, I – there’s probably little doubt that she could affirm capacity in that context at that time, but not necessarily the next day. So that’s the nature of the beast (dementia).
[16] The other medical evidence before the Court is from Dr Robin Ann Hay (Dr Hay) of Papanui Medical Centre which it appears took over the deceased’s medical care from August 2007 when Dr Wilkinson was no longer able to continue.
[17] Although there appears to be some confusion over whether the deceased was seen by Papanui Medical Centre between August 2007 and February 2008, what is clear from Dr Hay’s evidence is that she saw the deceased in February 2008 for a standard three month physical check-up. No mental capacity testing was done at that point however.
[18] From her evidence before the Court, Dr Hay’s recollection is that she was involved in having the deceased’s car driving licence revoked. The date this occurred is unclear but it seems it was likely to be sometime between November 2007 and February 2008. Despite the earlier car incident in early 2007 referred to at [14] above, it would appear that the deceased continued to drive for a period throughout 2007. On this aspect, before the Court Ms Hargreaves endeavoured to submit that the deceased’s car was sold in November 2007, but this it seems is not entirely clear.
[19] The next evidence with respect to the deceased’s mental and physical condition was provided by Ms Tamara Forbes (Ms Forbes). She was a neighbour of the deceased when she owned a rural property from 1987 to about 2004. Ms Forbes is a registered nurse with significant geriatric care experience. In her evidence she refers to a time just prior to November 2004 where she states in her evidence at page 87, line 23:
...I had had in my working career lots of interaction with the aged care and I automatically assumed (when I had a talk to the deceased in her lounge and initially she didn’t know who I was) that she was dementing...I was quite taken aback at how frail she had become in really such a short time, and the fact that she couldn’t remember me and I had to tell her who I was.
[20] Later in her evidence, Ms Forbes at page 88 states that:
...2004 was the first occasion on which I was concerned about her and perhaps had dementia thoughts...(prior to that)...I don’t remember being concerned about her dementia when she visited our home right through 2003...she was out in the paddocks often...
[21] Lastly, the principal evidence before the Court on behalf of the applicants was that of Christine Susan Ross (Ms Ross). Ms Ross was the solicitor who took instructions and attended on the deceased both for the sale of her property in 2007 to Ms Hargreaves’ daughter, Sophie, and for the November 2007 will.
[22] Ms Ross has been a property and estates solicitor in New Zealand and Australia since her admission to the bar in about 1988. On her evidence, she has wide experience in completing wills. It would seem that over a 20 year span of completing wills for clients in her time in practice in New Zealand she would have completed around 2000 wills. This amounts to something over 100 wills per year. Her evidence before me which I found to be clear, forthright and detailed was to the effect that:
Incompleting the November 2007 will I was absolutely satisfied that the deceased understood what she was doing, she knew what she had, she was very clear about everything and at all stages both in completion of her will and for the sale of her property to her granddaughter, Sophie, she knew fully the implications of what she wanted and at all times signed her own documents.
Insofaras the sale of her property to Sophie was concerned, she was aware it was a straight cash deal with Sophie at the valuation figure undertaken by Andrew Sunderland of Metro Valuations whom she met and spoke to when he was inspecting the property to do his reports.
Itwas the deceased who contacted me to call on her to make the few changes she required to her 2004 will which culminated in her November 2007 will and not her brother, Mr John Austin, or anyone else. Throughout I took my instructions solely from the deceased.
Theonly alteration made by the November 2007 will was a change to her chattels list distribution which was not unexpected given that
elderly people often change their minds concerning chattel bequests and give away items prior to their death. No change of any kind was made to the residuary beneficiaries in her will who throughout all previous wills were her two daughters and as to the $50,000 bequest to grandchildren which had been included in both the 2003 and 2004 wills.
Giventhese matters and the fact that when I and my secretary called on her on 6 November 2007 to sign the will she herself identified two mistakes when reading through the attached chattels list and had these altered in pen before she signed her will reinforced my view at the time that she clearly knew precisely what she was doing.
Althoughthe deceased was physically frail when she signed this will on 6 November 2007 both then and now I remain convinced completely that she had full testamentary capacity and was not at the time in any way mentally constrained, such that she might not have known what she was doing.
Knowingnow that in 2007 the deceased was likely to have been affected to some degree by dementia I can only say that given my knowledge that it is a progressive disorder and in the early stages, when this clearly was, the deceased was not necessarily precluded from understanding both what she had and to whom she was giving it.
Inote also that in November 2007 she was purchasing items using her EFT-POS card including payments to bakeries, a nursery, a supermarket and, as I understood it at the time, she continued to drive her motor vehicle.
Andfinally, it is simply not consistent to suggest as seems to be happening here, that the deceased around this time had capacity to sell the Withells Road property to Sophie but not to reassess how her personal effects, chattels and other assets were to be distributed in her will.
The underlying dynamics
[23] From all the material which is before the Court, it is reasonably clear that for some time up to now the relationship between the respondent, Ms Hargreaves, and other members of her family has been fraught to say the least. Throughout this entire proceeding, Ms Hargreaves has been at pains to complain about what she says are decisions taken, in particular by her brother Mr John Austin as a trustee of their late father’s estate and as attorney for the deceased. She maintains these have reduced down the value of the deceased’s estate. None of this, of course, has any relevance to matters which are the subject of the present proceeding. Nevertheless, before me Ms Hargreaves again endeavoured to pursue these aspects to no avail.
[24] Next it seems clear that Ms Hargreaves’ intentions, which she confirmed before me, are to challenge not only the November 2007 will but also the 2004 and 2003 wills of her late mother, so that her estate can be distributed in accordance with her 1995 will.
[25] This was despite the fact that it was made clear to Ms Hargreaves throughout that her present caveat, if upheld, would simply mean that the 2004 will would take the place of the November 2007 will. Other than a slight alteration to the chattels distribution, the 2004 will is really no different in its provisions from the November 2007 will. Ms Hargreaves confirmed that she would then take further proceedings to upset both the 2004 will and also the 2003 will on the grounds again of testamentary incapacity or undue influence against her mother to reach a point where the 1995 will prevails.
[26] Again the only appreciable difference with the 1995 will, other than a change of trustees and certain amended chattels distributions, would be the removal of the
$50,000 bequest to the 10 grandchildren.
[27] The effect of all this would simply be that the grandchildren will miss out on this $50,000 bequest, although before me Ms Hargreaves rather confusingly suggested that she was not wishing to upset these bequests to the grandchildren, despite the fact that this was a precise effect of her present caveat.
[28] All this, in my view, had a definite ring about it suggesting a concerted effort on the part of Ms Hargreaves, notwithstanding the cost, to reach a point of “principle” which she considered to be “right”. The real financial impact to her of all this (leaving aside the chattels distribution) would be not more than $25,000 – representing one half of the $50,000 grandchildren bequest which would otherwise come to her as a residuary beneficiary. Notwithstanding this, and invitations from the Court to reconsider her position, Ms Hargreaves was adamant throughout that she would press on regardless of the fact that the substantial estate funds of over
$750,000 remained frozen in trust and unable to be distributed in the meantime.
[29] There is no conclusion that can be reached here other than the fact that the potential impact on the 10 grandchildren, (including Sophie, her own daughter) not to mention her sister, Ms Diana Sidey, is of no moment to Ms Hargreaves. And, as early as 16 April 2013, Ms Diana Sidey herself filed a notice in this proceeding confirming that she supports the present application to make absolute the order nisi of the November 2007 will. Specifically she opposed the stance taken by her sister and stated that Ms Hargreaves’ claim and caveat was “unmeritorious”.
[30] All of these matters bring to mind the comments of Young J in a not entirely dissimilar situation in McIlroy Calder & Fraser v Giles1 where at page 11 he stated:
I have considerable unease about this litigation. There is highly likely to be nothing in it for Mrs Giles (who lodged a caveat against any application for administration of the deceased’s estate) and those who support her position in these proceedings. It seems at least likely that the wills which precede the testator’s association with Ms Apera will provide for charities as the ultimate beneficiaries. There is no precise evidence as to this before me. Apart from such charities, it is highly likely that the only people who will benefit financially from this litigation will be the lawyers. Cases about principle rather than money (which is apparently the way Mrs Giles sees the present case) have a tendency to incur costs which in the end even the most principled litigant will regard as disproportionate to what is involved. So I am most reluctant to direct a full trial here and thus require the attendant cost to be incurred.
[31] Those remarks, in my view, apply precisely to the present case. Notwithstanding this, however, before me Ms Hargreaves persisted with her opposition to any attempts to remove her caveat. I must therefore proceed to consider the present application to make absolute the order nisi granting probate of the November 2007 will and to consider whether Ms Hargreaves’ caveat should be discharged, and I now do so.
The present proceedings
[32] The steps taken by the applicants in this case have invoked s 61 of the Administration Act 1969 (the Act) which provides:
61 Where a caveat lodged, court may grant order nisi
1 McIlroy Calder & Fraser v Giles HC Christchurch 1 June 1999 P1233/98.
In every case where a caveat has been lodged and has neither lapsed nor been withdrawn, the following provisions shall apply:
(a)the court may, upon application on behalf of the person applying for administration, supported by affidavits upon which, if there had been no caveat, administration would have been granted, may make one or other of the following orders:
(i)in any case where the court is satisfied that the caveat has been or may have been lodged vexatiously or frivolously, an order for the discharge of the caveat or for security for costs; or
(ii)in any other case, an order nisi for the grant of administration to the person applying, which order nisi shall name a time and place for showing cause against the same, and the court may enlarge any such order from time to time:
(aa)in any case where, pursuant to subparagraph (i) of paragraph (a), the court makes an order for the discharge of the caveat, it may also make an order—
(i)for the payment of costs by the caveator:
(ii)prohibiting the caveator from lodging a subsequent caveat:
(b)every such order nisi, and every order enlarging the same, shall be served on the caveator by delivering a copy of the same at the address mentioned in his caveat:
(c)if before the day named in the order nisi or the day to which the order is enlarged the caveat is withdrawn, the order nisi may be made absolute at any time thereafter:
(d)in any case to which paragraph (c) does not apply, if on the day named in the order nisi, or on the day to which the order is enlarged, the caveator does not appear, the order nisi may be made absolute, upon an affidavit of service; but if the caveator appears, the hearing shall be conducted in the same manner as nearly as may be as in an ordinary action, and the court may order—
(i)that the order nisi be made absolute or discharged; or
(ii)that the application for administration be made in solemn form,—
and any order made under subparagraph (i) or subparagraph
(ii) may be with or without costs, as may be just, and, if the court so directs, those costs may be paid out of the estate:
(e)at any hearing under paragraph (d), the parties may, subject to the rules, verify their cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, be subject to be cross-examined by or on behalf of the opposite party orally in open court, and after cross-examination may be re- examined orally in open court by or on behalf of the party by whom the affidavit was filed:
...
[33] The present matter comes before me effectively pursuant to s 61(d) and (e) of the Act. As I have noted, in terms of paragraph (d) the applicants seek an order that the earlier order nisi be made absolute. As best I can tell, Ms Hargreaves in turn is effectively seeking an order either for the order nisi to be discharged or for it to be required that an application for administration is made in solemn form. The usual approach on the hearing of such applications, as noted by Rodney Hansen J in Puru
v Puru,2 is:
...to determine whether the caveator has raised sufficient to show that a full enquiry should be made: Re Nissenbaum (1939) NZLR 94 and Re Payne (1989) 2 PRNZ 432.
The conventional course is for the caveator to provide such evidence as is readily available to support the caveat and for those propounding the will either to submit to a requirement to proceed in solemn form or, alternatively, to deny that the caveator has raised enough to prevent the order nisi being made absolute. The Court does not usually resolve genuinely disputed issues of fact under s 61 – Van der Kaap v Wilson & Ors Van der Kaap v Wilson & Ors CA97/04 14 June 2005 at [34].
[34] On these matters, the general legal principles applying to the first issue raised here of testamentary capacity are settled and summarised in the Court of Appeal decision in Bishop v O’Dea3 as follows:
[1]In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity: Re White [1951 NZLR 393 (CA) and Peters v Morris (CA99/85: judgment 19 May 1987).
[2]If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have
2 Puru v Puru HC Auckland 28 February 2007, CIV-2006-404-2491 at [4].
3 Bishop v O’Dea (1999) FRNZ 492 (CA) at pages 2-3.
testamentary capacity rests on those who seek probate of the will: Public Trustee v Bick [1971] 1 NZLR 301 and Peters v Morris (supra).
[3]That onus must be discharged on the balance of probabilities: Watkins v Public Trustee [1960] NZLR 326 (CA). Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.
[4] In order to establish capacity, when in issue, those seeking probate must demonstrate the maker of the will had sufficient understanding of three things:
(a)that he or she was making a will and the effect of doing so (“the nature of the act and its effects”)
(b)the extent of the property disposed of
(c)the moral claims to which he or she ought to give effect when making testamentary dispositions.
These three matters derive from the leading authority of Banks v Goodfellow (1870) LR QB 549 as cited by this Court in Ranby v Hooker (Court of Appeal, Wellington CA, 16 September 1997) and in Peters v Morris (supra).
[5]If incapacity before the making of the will has been established, those seeking probate must show the will was made after recovery of or during a lucid interval. In such a case the will is regarded with particular distrust and there is, in the first instance, a strong presumption against it, particularly if it displays lack of moral responsibility in the nature of the dispositions: 4 Halsbury’s Laws of England Vol 17 at para 904.
[35] It is clear that the question of testamentary capacity is always one of fact to be assessed under all the circumstances prevailing at the critical time, which is the time of making the will – Re Meehan (Deceased).4 It is accepted that a person generally regarded as insane can have testamentary capacity and make a valid will during a lucid moment – Chambers v Queens;5 cited by Hammond J in Brown v Pourau.6
[36] So far as the second ground raised by Ms Hargreaves as caveator here is concerned relating to allegations of undue influence, Rodney Hansen J in Puru v Puru at [26] stated that this required the Court to determine whether there is any evidence that those who were said to have unduly influenced the deceased exercised
4 Re Meehan (Deceased) Unreported Court of Appeal 19 May 1987 CA 99/85 at page 45.
5 Chambers v Queens (1840) 2 CURT 415.
6 Brown v Pourau [1995] 1 NZLR 352.
power or mental coercion over her and by that means the will was obtained. In this regard Rodney Hansen J noted:
[26] ...Undue influence relates to impairment of judgment rather than to improper conduct on the part of the person possessing influence – Carey v Norton [1998] 1 NZLR 661; (1997) 16 FRNZ 686. The burden of proving that influence was in fact exercised is on the party alleging undue influence – Craig v Lamoureux [1920] AC 349 (PC). However, where the person who has prepared a will takes the benefit of it, the rule in Barry v Butlin (1838) 2 Moo PCC 480 applies to cast on the proponent of the will the onus of showing “the righteousness of the transaction” – see Fulton v Andrew (1875) LR 7 HL 448 at 471 – 472 where Lord Hatherley said:
There is one rule which has always been laid down by the Courts having to deal with wills, and that is, a person who is instrumental in the framing of a will, as these two persons undoubtedly were, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will was read over to the testator and that he was of sound mind and memory and capable of comprehending it. But there is a father onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of shewing the righteousness of the transaction.
Discussion – lack of testamentary capacity
[37] In the present case it is accepted by all parties that the deceased was diagnosed with dementia and that this occurred around 2003 – 2004. It is the extent of this dementia and its impact upon the deceased’s testamentary capacity at the operative time in November 2007 which is in issue here.
[38] On this, the decision of this Court in Re Rhodes (Deceased) Steward v Meades,7 although a clear case of lack of capacity on the part of the testator, held that only a small amount of capacity may be needed where property is disposed of by a deceased fairly. Where abrupt and unfair changes to the will occur, fuller and clearer evidence of capacity, it is said, is required.
[39] In Harrison v Harrison8 probate was opposed on the grounds of undue influence and lack of testamentary capacity. In this case, it was doubtful whether
Mr Harrison who had dementia possessed testamentary capacity and the changes to the will were indeed major ones:
[68] Concerning capacity I am not satisfied that Mr Harrison understood the competing claims he had to weigh in the balance. What he was doing in this will was not affirming, or adjusting, past assessments in relation to how he would leave his property. He was totally changing them. Even if I accepted, which I do not, that weight can be placed on his explanation five days later of why his son was excluded, there is no explanation in that document or elsewhere as to why there was such a change in relation to his grandsons.
[40] And the decision in Re French,9 concerned whether Mr French who also had dementia had testamentary capacity on 3 May 2000 when he executed a second will. At [20], the Judge noted that the later will made changes to an earlier will and at [26] he suggested that nothing indicated that Mr French had a “lucid” interval at the time he signed this will.
[41] The Judge was satisfied that the deceased did not have testamentary capacity and the plaintiff’s application for recall of probate of an earlier 1988 will and for probate of the 3 May 2000 will was dismissed.
[42] And, Re Sell10 was another clear case where the Court found that the testator, Ms Sell, who had rapidly progressing dementia lacked testamentary capacity (at [9]).
[43] Testamentary capacity in all these cases outlined above was quite obviously lacking, particularly where the will-maker made substantial changes to the will or the particular beneficiaries and where there were often also suggestions of undue influence. In many of these cases, it is clear that the will-makers could not remember basic details such as their address, dates, names of children and other relatives and so on.
[44] But none of these cases assists greatly in situations where, as it is alleged has occurred here, a will-maker who is a mild to moderate dementia sufferer has “lucid moments”.
[45] In overseas jurisdictions, however, where a diagnosis of dementia has occurred, recent judgments in the United Kingdom and Australia have clearly indicated that such a diagnosis does not preclude the testator’s ability to execute a will. In this regard I have been referred to two recent decisions.
[46] The first Simon v Byford11 is a decision of the High Court in England. There it was held that although a testatrix had suffered mild to moderate dementia when she had changed her will, she had capacity to appreciate the amount of the beneficiaries claims and therefore to change her will from an unequal division of her estate between her children to an equal one. The Court held there that the law upheld the right of elderly people to leave their property as they choose, even if their mental faculties had declined considerably. In this case the differences in previous wills were slight and all beneficiaries under both wills were the obvious ones and received substantial gifts under both wills.
[47] The second case referred to me was from the New South Wales Supreme Court – D’Apice v Gutkovich – Estate of Abraham (No. 2).12 In that case in 2010 it was held that the testator, who suffered from moderately severe dementia, still had the requisite testamentary capacity. In particular White J noted that the testator who revokes a gift does not need to have capacity to appreciate the general nature and extent of their estate or weigh the claims of all persons who have claims on her bounty. It is enough that she is capable of judging whether the person deserves to be excluded.
[48] Turning now to the present situation and the deceased’s testamentary capacity here, as I have noted above, there can be no doubt that the deceased to some degree did suffer from dementia at the time she signed her November 2007 will. Notwithstanding this, the evidence of Ms Ross, in particular, is that in 2007 the deceased herself requested an appointment to alter her will, and that she understood she was making a will, what she was disposing of and to whom this property was to be disposed and the reasons why. In particular, Ms Ross was fully satisfied that the deceased was entirely lucid at the time and fully understood what she was doing.
This was noted even to the extent that corrections to the chattels list were made by the deceased before signing her will. It was the deceased who made these minor changes. The other evidence before the Court from the medical professionals, Dr Wilkinson and Dr Hay, all indicated that the deceased’s dementia was progressive and that notwithstanding this, she was capable of having periods of time where she fully understood what she was doing and would have the necessary testamentary capacity. Indeed, around this time the deceased made the decision to sell her Withells Road property to Sophie, and this decision is entirely unchallenged. Certainly, the evidence before the Court would also seem to suggest that the deceased was driving her car right up to this time at least.
[49] In addition, according to the decision in Re Rhodes noted above, in this case the deceased needed only to have a very small amount of testamentary capacity as here the changes to her earlier 2004 will were minor in the extreme and there is a strong argument that her property was disposed of fairly and “in accordance with moral dictates” – Re Rhodes at [40].
[50] Further, the English Supreme Court decision in Simon v Byford would support a view here that the deceased as an elderly person clearly had the right to leave her property as she chose even though her mental faculties had declined somewhat with the onset of dementia. The differences between her November 2007 will with her previous wills again were slight. Nothing unusual in the later will would lead to any suggestion that she may not have known fully what she was doing at the time.
[51] The New South Wales decision in D’Apice v Gutkovich would also seem to support this insofar as it determined that even a testator who suffered from moderately severe dementia still could have the requisite testamentary capacity.
[52] A diagnosis of dementia in this case, in my view, clearly does not negate testamentary capacity. This is a case like Simon v Byford and D’Apice v Gutkovich where the medical evidence indicates that in November 2007 the deceased at worst was likely to be suffering only mild to moderate dementia. The evidence of Ms Ross also is to the effect that she had full capacity to appreciate her beneficiaries’ claims,
to know what she was doing and indeed even to properly correct Ms Ross’s misunderstandings in her chattels list. And given that evidence of Ms Ross, an experienced solicitor in matters of this kind, I am satisfied that the deceased, while physically frail, had testamentary capacity here when the November 2007 will which made very few substantive changes to her previous wills, was signed. Nothing that Ms Hargreaves has purported to put before the Court in my view would tend to negate this conclusion.
Discussion – undue influence
[53] I turn now to the issue of undue influence. This is quickly disposed of as I see it. In doing so and applying the principles noted above to the facts prevailing here, I find:
(a)there is no evidence that any extraneous pressure or mental coercion was placed on the deceased to sign the November 2007 will, contrary to her own wishes, either by the applicants or by her brother, Mr John Austin, or indeed by anyone else;
(b)significantly, there were no recent significant testamentary dispositions in favour of the individuals accused of having unduly influenced the deceased;
(c)the evidence of the deceased’s poor physical health and dementia itself is not enough to show that undue influence is to be inferred here; and
(d)it could not be said that the deceased’s judgment here in making her November 2007 will was impaired by any influence of others.
[54] Despite many unsupported allegations on the part of Ms Hargreaves of fraudulent conduct on the part of the applicants and/or her brother, Mr John Austin, there is no evidence before the Court to support any of this. Further, it is clear that the applicants and Mr John Austin are not beneficiaries in the deceased’s estate.
[55] Ms Hargreaves’ claims on this undue influence point are entirely unsubstantiated and must fail.
An aside
[56] For completeness here, I need to mention by way of an aside one further matter raised before me by counsel for the applicants. In this, it was suggested that Ms Hargreaves’ caveat and the proliferation of applications she has made in this proceeding show that her motivations in this case are not over genuine concerns with respect to the November 2007 will. Rather, it is said the caveat was lodged in an endeavour simply to seek financial records of both the deceased prior to her death and for her late husband’s estate and to “pursue a vendetta against her brother Mr John Austin” over all this. I express no view on these matters and leave them all on one side however. They are not relevant to the issues which were before me.
Conclusion
[57] For all the reasons outlined above, I conclude that Ms Hargreaves has been unable to show cause why the order nisi should be discharged or why a full enquiry by way of an application for probate in solemn form should be required here.
[58] The present application succeeds.
[59] An order is now made pursuant to s 61(d)(i) of the Administration Act 1969 that the order nisi made in this proceeding on 4 October 2012 granting probate of the 6 November 2007 of the deceased is made absolute. A further order is made that the respondent, Ms Hargreaves’ caveat is discharged.
Costs
[60] As to costs, the applicants have been successful here and are clearly entitled to an award of costs.
[61] On this question of costs, however, there were no specific submissions advanced to me either by counsel for the applicants, by Ms Hargreaves or by any other party.
[62] I direct therefore that the applicants and any other party claiming costs here are to have 10 working days from the date of this judgment to file and serve any memoranda they wish on the issue of costs.
[63] Ms Hargreaves and any other party to this proceeding may file and serve any memoranda in reply they may wish on this issue of costs within a further 10 working days of receiving the memoranda noted at [62].
[64] The applicants and any other party claiming costs are then to have a further 5 working days to file and serve any further memoranda on costs they may wish, but this is to be strictly in reply.
[65] All those memoranda are then to be referred to me, and in the absence of any party indicating they wish to be heard on the question of costs, I will decide that issue based on the material which is before the Court, including all the memoranda filed.
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D Gendall J
Solicitors:
Goodman Tavendale Reid, Christchurch Mortlock McCormack Law, Christchurch Copy to Respondent
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