Turk v Turk - [2020] NZHC 1495

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-614819

[2020] NZHC 1495

IN THE MATTER of the Estate of JOHANNES GERARDUS TURK

UNDER

section 61 of the Administration Act

BETWEEN

GERARDUS JOHANNES TURK AND JACQUELINE ROBINSON

Applicants

AND

RONALD ADRIANUS TURK

Caveator

On the papers: 19 June 2020

Counsel:

G F Kelly and K H Lawrence for the Caveator J K Mahuta-Coyle for the Applicants

Judgment:

30 June 2020

JUDGMENT OF CULL J

[1] This step in the proceeding is to determine whether the caveator can show cause that the current order nisi should not be made absolute, to enable the grant of administration to the executors of the deceased’s estate.

[2] Ronald Turk (Ronald), the son of the deceased, has lodged a caveat against the estate of his late father. The executors of the deceased’s most recent will (the executors)1 have applied for probate of the will. The executors named in the will are Mr Gerardus Turk (Gerald) and Ms Jacqueline Robinson (Jacky), another son and daughter of the deceased, and the deceased’s lawyer, Mr Montague.

1 The named executors in the deceased’s last will are referred to as “the executors” in this judgment for ease of reference only. It does not signify any finality in their position as executors.

ESTATE OF TURK [2020] NZHC 1495 [30 June 2020]

[3] Under s 61 of the Administration Act 1969 (the Act), this Court made an order nisi for the grant of administration to the executors. Ronald must now “show cause” as to why the order should not be made absolute. Under s 61 the Act, if the Court finds the caveator has not raised sufficient grounds to “show cause”, the Court will make the order nisi absolute and grant probate to the executors. If the Court finds that Ronald has raised sufficient grounds to show that a full inquiry should be made, the Court can order the application for probate to be made in solemn form, with a fully contested hearing to follow.

[4] The threshold for a caveator to “show cause” is low. This step does not involve the Court in deciding the ultimate issue as to validity of the will. If the Court considers a full inquiry should be made, the Court will order the application for the grant of probate to be made in solemn form, so the matter can proceed to a fully contested hearing where disputes of fact can be determined.

Background

[5] Johannes Turk (the deceased) suffered from a serious brain injury caused by a significant car crash in 2008 which resulted in the death of the deceased’s wife. Together, the pair had six children. The brain injury is not disputed but its significance and the effect on the deceased’s behaviour is.

[6] The deceased passed away on 21 September 2019. He had executed a will dated 23 December 2014. As noted, the will appoints Gerald, Jacky and Mr Montague as executors of the…

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 [2020] NZHC 1495
Case: [2020] NZHC 1495
Decision Date: 30 June 2020

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, considered a dispute between Ronald Adrianus Turk and the executors of Johannes Gerardus Turk's estate, who are his siblings, Gerardus Johannes Turk and Jacqueline Robinson, and his lawyer, Montague. The case was about Ronald lodging a caveat against the grant of administration of his deceased father's estate, claiming that the deceased lacked testamentary capacity when he executed his last will in 2014. The executors sought an order that Ronald show cause as to why the order nisi should not be made absolute, granting them administration of the estate. The court had to determine whether Ronald had raised sufficient doubt about the validity of the deceased's final will to warrant a full inquiry.

The court found that Ronald had raised sufficient doubt about the deceased's testamentary capacity, necessitating a full inquiry. The court identified several reasons for this conclusion, including the deceased's consistent inclusion of all his children in previous wills, the significant change in the 2014 will excluding Ronald, and the medical notes indicating cognitive impairment following the deceased's 2008 car crash. The court also noted the conflicting medical opinions regarding the deceased's cognitive state and the brevity of the GP's assessment, which raised questions about its reliability. The court ordered that the executors make the application for probate in solemn form, requiring a fully contested hearing to address the issues raised by Ronald.

The court's decision was based on the low threshold for a caveator to show cause in such matters, as established in previous cases. The court emphasised that it was not deciding the ultimate issue of the will's validity but rather determining whether a full inquiry was necessary. The court directed the executors to proceed with the application for probate in solemn form, allowing for a comprehensive examination of the evidence, including the deceased's medical history and the circumstances surrounding the execution of the will. The court also highlighted the importance of obtaining and disclosing all relevant medical information before the next hearing.

Orders