Turk v Turk - [2021] NZHC 1269

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-614819

[2021] NZHC 1269

IN THE MATTER of the Estate of JOHANNES GERARDUS TURK

BETWEEN

GERARDUS JOHANNES TURK AND

JACQUELINE ROBINSON as Executors Plaintiffs

AND

RONALD ADRIANUS TURK

First Defendant

GERARDUS JOHANNES TURK AND

JACQUELINE ROBINSON as Beneficiaries Second Defendants

CIV-2021-485-156

BETWEEN

RONALD ADRIANUS TURK
Applicant

AND

THOMAS CHARLES MONTAGUE, GERARDUS JOHANNES TURKS, AND

JACQUELINE ROBINSON, as Executors of the Estate of Johannes Gerardus Turk

Respondents

Hearing: 21 April 2021

Counsel:

J K Mahuta-Coyle for Gerardus Johannes Turk and Jacqueline Robinson as Executors

A S Butler and K H Lawrence for Ronald Adrianus Turk P W Michalik for Gerardus Johannes Turk and Jacqueline Robinson as Beneficiaries

Judgment (Results):

21 April 2021

Judgment(Reasons):

1 June 2021

TURK AND ROBINSON v TURK AND ORS [2021] NZHC 1269 [1 June 2021]

REASONS JUDGMENT OF ELLIS J

[1] On 21 April 2021 I issued a “results” judgment granting probate in solemn form in respect of the will of Johannes Gerardus Turk (John) dated 23 December 2014.1 I also made a number of ancillary orders and directions.

[2]This judgment briefly sets out my reasons for the grant of probate.

Background

[3]John and his wife had six children.

[4] In 2008 there was a car crash that caused the death of John’s wife and caused him to suffer a serious head injury.

[5] John died on 21 September 2019. He executed his last will in December 2014. The named executors are John’s son Gerardus (Gerald), his daughter Ms Jacqueline Robinson, and a lawyer, Mr Montague.

[6] The 2014 will contained a significant change from John’s earlier wills, of which there were 10 dating back to 29 June 1990 (the penultimate one was dated 23 May 2012). In particular, the 2014 excluded his son Ronald in a number of respects, including as a residuary beneficiary of the estate. Ronald’s children are also excluded from any entitlement.

[7] The will acknowledged that Ron remained contractually entitled to a number of shares in Turk’s Poultry Farm Ltd (TPFL).

[8] Ron lodged a caveat against John’s estate, claiming that John lacked testamentary capacity when cutting him out. The Court made an order nisi for the grant of administration to the executors. But on 30 June 2020, Cull J declined to make the order absolute. On the basis of the evidence filed, she found that there was a

1 Turk v Montague [2021] NZHC 856.

tenable issue about whether Ron lacked testamentary capacity.2 She ordered that the application for probate be made in solemn form, with a fully contested hearing to follow.

[9] Just before that hearing was to take place, as a result of mediation, the parties agreed that the application could be dealt with by way of formal proof. Although Ron no longer opposed the grant of probate, the question of John’s testamentary capacity remained unresolved.

[10] On the basis of the evidence (which included evidence filed after Cull J’s…

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 Turk v Turk

Details

AGLC: Turk v Turk [2021] NZHC 1269
Case: [2021] NZHC 1269
Decision Date: 1 June 2021

CaseChat Overview and Summary

This case concerned the validity of the last will of Johannes Gerardus Turk (John) and the dispute over his testamentary capacity at the time of executing it. Ronald Adrianus Turk (Ron) contested the grant of probate of the 2014 will on the grounds that John lacked the necessary testamentary capacity due to a decline in his cognitive function following a car crash in 2008. The court had to decide whether John possessed the requisite testamentary capacity at the time of executing the 2014 will, which excluded Ron as a beneficiary. The key issues were the extent of John's cognitive decline post-crash, the rationality of his decision to disinherit Ron, and the sufficiency of the medical evidence to support Ron's claim.

The court found that the 2014 will, which introduced significant changes from John's earlier wills, did not by itself indicate a lack of testamentary capacity. The medical evidence, particularly the 2014 assessment by Dr. Sutton and the later evidence by Dr. Robinson, did not support a finding of incapacity at the time of executing the will. While John had suffered a brain injury in 2008, the evidence showed that he had recovered sufficiently to manage his affairs by 2009. The court considered that John's emotional and behavioural changes were rational responses to the business conflicts with Ron rather than indicators of diminished capacity. Furthermore, John's decision to amend his will was consistent with his long-standing grievances against Ron's management of Turk's Poultry Farm Ltd. The court concluded that John had the requisite testamentary capacity to make the 2014 will, and granted probate in solemn form.

The court's decision was based on the balance of probabilities, finding that John had sufficient understanding of the act and its effects, and was free of any mental disorder that would affect his decision-making. The court acknowledged the business conflicts but focused on the capacity issue, determining that John's actions were rational and justified given the circumstances. The court's findings were influenced by the medical evidence and the detailed instructions John provided to his lawyer, Mr. Montague, who had no doubt about John's capacity. The court did not find the 2017 record of severe dementia relevant as it was several years after the execution of the 2014 will. The court granted probate in solemn form, resolving the dispute over John's testamentary capacity.

Orders