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 deceased’s estate. The 2014 will was a significant change from the deceased’s previous will dated 23 May 2012 and his nine previous wills dating back to 20 June 1990. The 2014 will excludes Ronald, the caveator in these proceedings, in a number of respects including as a residuary beneficiary of his estate. Ronald’s children are also excluded from any entitlement.

[7]    It is not disputed that throughout 2012 and onward, the deceased displayed erratic and inappropriate behaviour at Turks Poultry Farm Ltd (the Poultry Farm), where Ronald and the deceased worked. Both parties agree that the deceased had difficulty regulating his emotions and acted brashly and inappropriately in the work environment. The executors say that the deceased was always this way and his

behaviour did not change after the accident. They say the deceased’s outbursts and frustrations reflect his serious and consistent disagreement and unhappiness towards decisions that were being promoted by Ronald about the company, which the deceased had founded. Ronald says the deceased’s behaviour became steadily worse from 2012 and can be attributed to the deceased’s declining mental capacity. This is the main dispute between the parties.

[8]    On 21 October 2019 Ronald lodged a caveat against the estate of the deceased. In January 2020, the executors applied for probate of the deceased’s will.

[9]    Section 61 of the Act provides that where a caveat has been lodged, the Court may make an order nisi for the grant of administration to the person applying for the administration. The order nisi must be served on the caveator and must name a time and place in which the caveator must “show cause” why the order should not be made absolute.2 On 24 March 2020, the Registrar of the High Court at Wellington granted the executors an order nisi for the grant of administration. The Court ordered that unless the caveator shows cause to the High Court why the order nisi should not be made absolute by 4 May 2020, probate of the will of the deceased shall be granted to executors. This Court has since directed that the interim order nisi will remain in force until further order of the Court.3

[10]   Ronald has applied for discharge of the order nisi; for probate of the will of the deceased to be made in solemn form; and the appointment of a temporary administrator pending the outcome of the application for probate in solemn form. The executors seek an order that Ronald shows cause as to why the order nisi should not be made absolute.

[11]   The parties have since resolved the matter relating to the appointment of a temporary administrator by way of an undertaking from Mr Montague and reached agreement on disclosure of information. The parties are therefore agreed that the only matter remaining to be determined is whether Ronald has raised sufficient doubt about the validity of the deceased’s final will. If so, both parties accept that the appropriate

2      Section 61(a)(ii).

3      Re Estate of Turk HC Wellington CIV-2019-485-614819, 5 May 2020.

course is for the order nisi to continue in force (with the executors continuing to act on an interim basis) and for an application for probate to be made in solemn form. The application would then need to proceed to a fully contested hearing.

Legal principles

[12]   If the caveator appears at a hearing to show cause why the order nisi should not be made absolute, the Court must determine whether to make the order nisi absolute, to discharge the order nisi, or to order that the application for administration be made in solemn form where the application can be dealt with in a contested hearing.4 The onus is on the caveator to show why the order nisi should not be made absolute. To that end, the caveator has to raise sufficient grounds to establish either that the order nisi should be discharged or that a full inquiry is appropriate.

[13]   The threshold for satisfying the Court that there are grounds for a full inquiry is low.5 As the Court does not normally resolve disputed facts at a “show cause” hearing, if the caveator’s evidence is disputed, the Court normally orders the application for administration to proceed in solemn form.6 If a caveator does not raise sufficient grounds at the “show cause” hearing to establish that a full inquiry should be made into the matters raised by the caveator, then the order nisi will usually be made absolute.7

[14]   In Van der Kaap v Wilson, the Court of Appeal outlined the usual approach to hearings under s 61 of the Act to show cause:8

… 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 High Court does not usually resolve genuinely disputed issues of fact under s 61.

4      Administration Act 1969, s 61(d).

5      Jurisich v Harris [2016] NZHC 525 at [7], citing Re Van der Kaap HC Whanganui CIV-2003- 488-579, 21 April 2004.

6      Margaret Briggs and others Brookers Family Law – Family Property (online ed, Thomas Reuters, accepted 29 June 2020) at [AA61.03]; and John Earles and others (eds) Dobbie’s Probate and Administration Practice (6th ed, Lexis Nexis, Wellington, 2014) at [49.4.4].

7      Jurisich v Harris, above n 5, at [6].

8      Van der Kaap v Wilson CA97/04, 14 June 2005 at [34].

[15]   The Court will generally only discharge the order nisi at a “show cause” hearing if there is uncontested evidence in support of the order not to appoint the applicant as administrator. If the facts are disputed, the Court will generally order the applicant for the grant of administration to make the application in solemn form.

[16]   The issue for determination for this Court is whether Ronald, as the caveator, has raised sufficient doubt such that the order nisi should not be made absolute. In that case, the order nisi should continue in force and the executors should apply for probate in solemn form. Such a process then requires formal pleadings and a full contested hearing.9

[17]   Whether Ronald in this instance “shows cause” will be determined by reference to the medical assessment of testamentary capacity. The principles of testamentary capacity are canvassed comprehensively in Woodward v Smith and the following principles have particular relevance:10

(a)The will-maker must:

(i)understand the nature of the act and its effects, and also the extent of the property of which he is disposing;

(ii)be able to comprehend and appreciate the claims to which he ought to give effect; and

(iii)be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.

(b)It is not necessary that the testator should view his will with the eye of a lawyer, nor comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to

9      Jurisich v Harris, above n 5, at [7].

10     Woodward v Smith [2009] NZCA 215 at [19].

understand the elements of which it is composed and the disposition of his property in its simple forms.

(c)Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.

Parties’ positions

[18]   Ronald says that since the car crash in 2008, the deceased suffered noticeable cognitive decline for several years and was suffering from this decline both at the time of the signing of the will and some years before the will was executed. He says that business disagreements between the two did not affect the father-son relationship until after the deceased’s brain injury when his capabilities were diminished. He says further that the deceased was unable to understand what was going on at the business in the years leading up to the signing of the 2014 will and this led him to view Ronald as “the enemy” because he could not understand why changes were happening.

[19]   Ronald therefore submits that the deceased was clearly impaired and that his behaviour is sufficient to raise the question of whether the deceased was suffering from “unsoundness of the mind” when he gave instructions for his 2014 will. He submits there is sufficient evidence to raise doubt as to the deceased’s capacity in 2014, and this doubt is unlikely to be resolved without access to full medical records and an opinion as to capacity.

[20]   For further context, the deceased’s estate owns certain shares in the Poultry Farm, some of which are due to Ronald under an agreement with the deceased and his late wife dated 28 July 2002. Ronald says his personal relationships with his executor siblings, Gerald and Jacky, are very strained due to business pressures. Ronald alleges that Gerald and Jacky may utilise their position as executors to adversely affect his interests in the Poultry Farm and specifically that they may attempt to persuade members of the Board to remove him as manager of the company. If Ronald was no

longer manager of the Poultry Farm, he would be no longer be entitled to the specific gift of shares under the 2014 will, in accordance with the 2002 agreement.

[21]   The executors say that Ronald’s case relies on a single material change among all wills executed by the deceased since 2009 (five of them) and the 2014 will, being the exclusion of Ronald from the residue of the estate, to establish suspicion of a lack of testamentary capacity. They say all other evidential factors pointed to by Ronald in favour of cognitive decline were present from 2008 following the deceased’s serious car crash. However, they highlight that Ronald does not argue that the deceased lacked capacity prior to 2012 because, if so, that would leave Ronald reliant upon a 2001 will which does not grant him a controlling share interest in the Poultry Farm.

[22]   The executors say that between 2009 and 2013 the deceased’s pattern of disposition was entirely consistent. They say that by late 2014, the relationship between Ronald and the deceased had broken down to the point that the deceased had formed an intention that Ronald be removed as a director of the Poultry Farm. The deceased signed a shareholder notice to that effect in December 2014. Thus, the change in disposition contained in the 2014 will, they submit, is entirely consistent with events at that time. The executors submit the change in disposition is supportive of testamentary capacity, not adverse to it.

Discussion

[23]   In perusing the evidence filed by each of the parties, the parties’ submissions, and the medical notes provided in the common bundle to date, I consider there needs to be a full assessment of the deceased’s medical history, particularly from 2008 to 2014, leading up to the making of the deceased’s last will in 2014. The subsequent deterioration in the deceased’s capacity to the date of his death will also need to be gauged for this Court to be satisfied about the deceased’s testamentary capacity. Without the evidence being tested, I consider that the Court is not in a position to determine whether the deceased intentionally and with full grasp of his mind, as the executors assert, wished to disinherit Ronald and his grandchildren for personal and business reasons.

[24]   In short, Ronald has raised sufficient doubt in my mind as to whether the deceased possessed testamentary capacity at the time of making his last 2014 will. There are five reasons for my conclusion.

[25]   The first is the consistency with which the deceased has included all his children equally nine previous wills from 20 June 1990 to 23 May 2012. It is a significant change for the deceased to remove Ronald almost entirely from his 2014 will. All other five siblings are included in the 2014 will. The removal of Ronald also removes any entitlement of his children to inherit.

[26]   Secondly, the medical notes, supplied on the day of this hearing, detail that on 30 October 2008 the deceased had a left frontal subcutaneous haematoma; that he was not to be involved in decision making “re business”; and that the enduring powers of attorney (EPOA) should be activated. The notes specifically state: “EPOA to take over”. It is plain from the disclosed medical notes that, following the car accident in 2008, the deceased had “major difficulty calculating, sequencing, word finding” and that he had “difficulty with complex tasks.” I note that the daughter and son executors in the will were the deceased’s respective attorneys for property and personal care and welfare.

[27]   There are then records of hospital visits from 2012 to 2015 suggesting that the deceased was experiencing dizziness, falling over, and that he had difficulty with his balance and his stress levels. Of particular note is the entry in the medical notes of  29 August 2015, where the deceased’s daughter (unnamed) has described a “gradual decline in father over last year – now mostly sits in his chair and watches TV”. The notes say: “not normally confused … felt muddled yesterday.” The timing of these descriptions is just eight months after the date the deceased made his last will on    23 December 2014.

[28]   Thirdly, there is evidence from others working with the deceased that suggest the deceased may have experienced a type of cognitive impairment that affected his personality, mood swings, and ability to make rational decisions. The deterioration in the deceased’s personality and mood swings appears to have been noticeable in the 2012-2013 years, when a consultant to the Poultry Farm expressed his view that in

discussing business matters with him in 2012, the deceased struggled to grasp concepts which were not complex. This witness also witnessed volatile and angry behaviour from the deceased in front of the company employees. Although the consultant is not a medical expert, he had the impression that the deceased could not contain his emotions and became distressed and almost helpless after outbursts. While testamentary capacity does not require that the testator can assess his will as a lawyer might, the comments raised by the deceased’s co-workers raise some doubt as to the deceased’s mental capacity which I cannot exclude on the information before me.

[29]   Fourthly, there is evidence that the deceased was suffering from dementia and had been in the years prior to his death. However, when the dementia began is not presently before the Court and further medical records are required, including any mental health or mental capacity assessments undertaken since 2008.

[30]   Finally, the applicant executors produced and rely on a medical opinion undertaken on 6 November 2014, which records that the General Practitioner (GP) was of the opinion that the deceased was “well-oriented and cognitively intact” and that he “is mentally competent for managing his legal and business affairs.” This conclusion is at variance with the cognitive assessment undertaken after the deceased’s accident in 2008, when the enduring powers of attorney were activated on the medical advice of the treating medical staff at that time.

[31]   More importantly, the GP’s medical certificate is extremely abbreviated, being three lines long, and the purpose for which the medical opinion was proffered is unstated. If, as the caveator asserts, the GP did not have prior knowledge of the deceased’s medical history and had little to do with the deceased prior to this opinion, the reliability of that opinion is, in my view, in question. I am in agreement with the caveator’s submission that the medical certificate falls woefully short of an assessment of testamentary capacity.

[32]   The caveator relies on Woodward v Smith in which the Court of Appeal endorses as “good practice” the steps a medical professional should take in undertaking an assessment of testamentary capacity.11 In a recent paper presented at

11     Woodward v Smith, above n 10, at [57]-[59].

the New Zealand Law Society Trust Conference, the authors caution that particular care should be taken in such an assessment if the patient is not being assessed by his or her usual physician.12 Clearly, such an assessment should include the effect of the brain injury in the case of the deceased’s previous medical history and the medical assessment at that time, that the deceased should “not be involved in decision making” in respect of business matters.

[33]   The purpose for which the medical opinion was sought and the context in which the medical assessment took place are matters that should properly be explored and examined in a full inquiry. As part of that inquiry, the assessment of whether the deceased understood the consequence of making his 2014 will, excluding not only Ronald but any grandchildren who might expect to benefit under the will, will also be relevant. In Woodward, the Court referred to the Banks v Goodfellow criteria for a testamentary capacity assessment which included an assessment of the patient’s understanding of “the claims of those who might expect to benefit under the will.”13 I consider that this factor is a relevant consideration here, given the previous history of the deceased’s will making prior to 2014.

[34]   For all of the above reasons, I am satisfied the caveator has “shown cause” and the application for probate should be made in solemn form. This will then require a full hearing. It is important to reinforce that the practice of the Court in “show cause” cases is not to decide the ultimate issue as to the validity of the will. I have not undertaken such an exercise, but I am satisfied that Ronald, as caveator, has raised sufficient grounds to show that a full inquiry should be made. I am satisfied that the low threshold for a “show cause” application is met.

[35]   There is one further matter. As the caveator submits, the timing of the onset of the deceased’s dementia is not before the Court. The caveator has requested that information and I consider that all medical information relating to the deceased must be obtained and disclosed before the further hearing and inquiry into the evidence.

12     Vicki Ammundsen, Kimberly Lawrence, and Colette MacKenzie “Capacity in Practice” in Greg Kelly (ed) Trust Conference 2019 (NZLS CLE Ltd, Wellington, 2019) at 111.

13     At [57], citing Banks v Goodfellow (1870) LR 5 QB 549.

Result

[36]The caveator’s “show cause” action succeeds.

[37]   I now direct the executors under the will to make the application for probate in solemn form under s 61(d)(ii) of the Administration Act 1969.

[38]A fixture for the inquiry hearing should now be scheduled.

Cull J

Solicitors:

Greg Kelly Law Ltd, Wellington for the Caveator Todd Whitehouse Solicitors, Levin for the Applicants