Trustees Executors Limited v Poppe - [2024] NZHC 2346

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-000788

[2024] NZHC 2346

IN THE MATTER OF the Estate of ANNE PAISLEY RYAN

UNDER

Rule 27.6 of the High Court Rules 2016

BETWEEN

TRUSTEES EXECUTORS LIMITED

Applicant

AND

BEATRICE MARY POPPE

First Respondent

WINIFRED EDITH RYAN

Second Respondent

Hearing: On the papers

Appearances:

T Donnelly for the Applicant

M Ward-Johnson for the First Respondent C Knowles for the Second Respondent

Judgment:

21 August 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 21 August 2024 at 12 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

TRUSTEES EXECUTORS LIMITED v POPPE [2024] NZHC 2346 [21 August 2024]

[1] Anne Paisley Ryan (the deceased) died on 13 November 2021. She is survived by her sisters, Winifred Edith Ryan (Edith) and Beatrice Mary Poppe (Beatrice).

[2] The deceased left two wills. The last Will dated 17 April 2019 (2019 Will) appointed Edith and Beatrice as executors. The 2019 Will replaced an earlier will dated 4 April 2016 (2016 Will).

[3]Beatrice and Edith are the primary beneficiaries of the estate.

[4] The terms of the 2019 Will provide for specific distributions to named persons (subject to survivorship). The 2019 Will also provides that a property at 67 Para Street, Miramar, Wellington, go to Edith. Personal belongings, jewellery and the money in bank accounts, term deposits and investments are to be distributed to Edith and Beatrice in equal shares. It provides for half the residue of the estate to go to the Wellington City Mission and half to the Sisters of Compassion, Wellington, with the instruction that “the money to be used for food for the needy”.

[5] There are few material differences between the 2019 Will and the 2016 Will save in respect of the property at 67 Para Street. Under the terms of the 2016 Will, that property was to pass to both Edith and Beatrice.

[6] Beatrice expressed concerns about the deceased’s capacity and Edith’s influence over the deceased when she made the 2019 Will. They (as executors) did not agree whether the 2016 Will or 2019 Will should be propounded. They agreed to renounce as executors and for Trustees Executors Limited (TEL) to be the administrator under letters of administration with will annexed.

[7] TEL formed the view that the deceased had testamentary capacity at the time of the 2019 Will’s execution. That belief was based on evidence of the deceased’s solicitor who deposed that the deceased understood the nature and effect of making her Will along with the nature and extent of her property. Further, that she provided clear instructions as to the estate’s distribution and was still capable of living independently and managing her own affairs at the time of signing the 2019 Will. TEL additionally relied on the fact that two months after the creation of

the 2019 Will, the deceased had sufficient capacity to execute an enduring power of attorney in which she…

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: [2024] NZHC 2346
Decision Date: 21 August 2024

CaseChat Overview and Summary

Trustees Executors Limited has applied to the High Court of New Zealand for letters of administration with will annexed in respect of the will of the deceased, Anne Paisley Ryan, who died on 13 November 2021. The application is opposed by Beatrice Mary Poppe, one of the deceased’s sisters and beneficiaries under the will. Beatrice contends that the deceased lacked testamentary capacity when she executed the will and was unduly influenced by her other sister, Winifred Edith Ryan. The deceased’s will dated 17 April 2019 (the 2019 Will) replaces an earlier will dated 4 April 2016 (the 2016 Will). The primary beneficiaries under the 2019 Will are Beatrice and Edith, who have renounced as executors. Trustees Executors Limited has been appointed administrator. The court must determine whether the deceased had testamentary capacity when she executed the 2019 Will and whether Beatrice’s claims of undue influence are valid. Additionally, the court must decide if it has the jurisdiction to vary the terms of the will in light of a proposed compromise between the parties.

The court found that the deceased had testamentary capacity when she executed the 2019 Will. This conclusion was based on the affidavit of the deceased’s solicitor, who attested that the deceased understood the nature and effect of making a will, the extent of her property, and the moral claims to which she ought to give effect. The court was also satisfied by the medical evidence that there was no indication of the deceased lacking capacity at the time the will was made. As for the claim of undue influence, the court did not need to address it as Beatrice had abandoned this claim as part of the compromise agreement. The court also considered the jurisdiction to vary the terms of the will. It found that the Trusts Act 2019 provided the necessary jurisdiction to approve the variation of the will terms, given the consent of all beneficiaries and the absence of any detriment to vested interests. The court approved the variation of the will terms as per the compromise agreement, which included the distribution of the deceased’s property between Beatrice and Edith.

The court granted the application for letters of administration with will annexed in respect of the 2019 Will and approved the variation of the will terms as per the compromise agreement. The court found that the deceased had testamentary capacity when she executed the 2019 Will and rejected the claim of undue influence. The court also approved the variation of the will terms under the Trusts Act 2019, given the consent of all beneficiaries and the absence of any detriment to vested interests. The court did not make any order for costs.

Orders