Wilson v Vallely-Te Kani
[2024] NZHC 1091
•6 May 2024
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2022-470-000132
[2024] NZHC 1091
BETWEEN CLIVE FITZGERALD WILSON and
JEFFREY RAYMOND WILSON as trustees and executors of the last will of GEORGE BLAKEMAN WILSON
PlaintiffsAND
DANIELLE SARAH VALLELY-TE KANI
Defendant
Hearing: On the papers Counsel:
M B Beech for Plaintiffs Defendant Self-represented
Judgment:
6 May 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 6 May 2024 at 3.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ………………………………..
WILSON v VALLELY-TE KANI [2024] NZHC 1091 [6 May 2024]
Introduction
[1] This is an application to recall a grant of probate under r 27.34 of the High Court Rules 2016. The will at issue is that of the late Mr George Blakeman Wilson (Mr George) dated 23 August 2018 (2018 will).1
[2] The plaintiffs, Mr Clive Wilson and Mr Jeffrey Wilson, are Mr George’s only living children. The defendant, Ms Danielle Sarah Vallely-Te Kani (Danielle), is Mr George’s granddaughter.2
[3] The plaintiffs seek an order recalling probate of the 2018 will and declaring it invalid on the grounds that:
(a)The deceased lacked testamentary capacity; and/or
(b)The 2018 will was procured by the undue influence of the defendant, Danielle.
[4] The plaintiffs seek to propound the will of Mr George dated 9 September 2004. They also seek an order for the return of the British Royal Navy Service medals bequeathed to Danielle pursuant to the August 2018 will. In addition, they seek an order that the funds owing to Danielle pursuant to the 2004 will have been paid.
[5] Danielle disputes the claim of undue influence. Whilst she acknowledges that a medical report indicates that there were questions of Mr George’s mental capacity at the time the 2018 will was signed, she still seeks to propound the 2018 will. She also says that the plaintiffs, her uncles, are completely ignoring another will, namely the will of 2013. Her position is that if the 2018 will is invalid, then the Court should propound the 2013 will.
[6] This judgment is being determined on the papers by the agreement of the parties. The estate at issue is very small.
1 For ease of reference and to distinguish him from the plaintiffs, I will refer to him as Mr George (counsel for the plaintiff did likewise). I will also refer to the parties by their first names.
2 She is the only child of Mr George’s late daughter, Paula Marie Vallely. She passed away in 2001.
[7] For reasons set out below, I will treat this application as an application seeking probate in solemn form. To date, probate has not been granted. There is therefore no issue as to the recalling of probate.
[8] I note that there has been some delay in dealing with these proceedings. To the extent that that delay contributed to any misunderstanding on the part of the plaintiffs and their solicitors, the Court apologises.
Factual background
[9]Under his will of 9 September 2004, Mr George:
(a)Appointed his wife, Mrs Judith Wilson, and Jeffrey and Clive to be the executors and trustees;
(b)Gave to his wife, Mrs Judith Wilson, his personal chattels;
(c)Directed the trustees to allow his wife, Mrs Judith Wilson, to have the free use and occupation in the matrimonial home; and
(d)Provided for the residue and remainder of the estate, following Mrs Judith Wilson’s death, to be distributed as follows:
(i)to pay to Danielle, the sum of $12,000;
(ii)the remainder of the estate to Jeffrey and Clive as tenants in common in equal shares.
[10] In 2013, Mr George’s wife, Mrs Judith Wilson, passed away. After that Mr George started living with various family members.
[11] Following Mrs Judith Wilson’s death, there was a dispute between Clive and his wife, Louise, and Mr George regarding the circumstances of Mr George ceasing to reside in the former matrimonial home and how best to deal with that property and
Mrs Wilson’s estate in accordance with her will. Mr George issued proceedings against Clive and Louise in the High Court.3
[12] The defendant, Danielle, was Mr George’s welfare guardian and property attorney pursuant to an enduring power of attorney dated 29 July 2013.
[13] On 8 December 2014, Mr George, Clive and Louise entered into a Deed of Settlement settling the High Court litigation over Mrs Wilson’s estate.
[14] In a letter dated 12 August 2013, Dr Eunice Kelly of Tauranga, advised Mr George’s then solicitors, King Gerrard Partners of Pukekohe, that in her opinion Mr George had “full mental capacity in relation to all his financial, professional and medical decisions.”
[15] Danielle says there was a further will of Mr George executed on 25 October 2013. Clive and Jeffrey say that no original will has been provided by Danielle and nor has she provided evidence of those who “supposedly” witnessed it. The terms of the 2013 document record:
(a)The appointment of Jeffrey and Danielle as the executors and trustees;
(b)That all of Mr George’s property is to be given to Jeffrey and Danielle in equal shares;
(c)Gives reasons for excluding Clive from the will; and
(d)Notes that Mr George was being housed “by a granddaughter in Auckland and but for her kindness I would be homeless”.
[16] Mr George made a will dated 23 August 2018. Clive was removed as a beneficiary from that will. Under that will:
(a)Jeffrey and Danielle were appointed executors and trustees;
3 CIV-2014-970-171.
(b)Mr George’s British Royal Navy service medals were given to Danielle;
(c)The whole of the property (both real and personal) was given to Jeffrey, provided, however, that if Jeffrey died before taking an interest, Danielle was to take the interest in the estate which Jeffrey (her uncle) would have taken;
(d)It has again provided reasons for the exclusion of Clive; and
(e)Recorded that Danielle was excluded from the residue of the estate because Mr George had given her a gift of $50,000 in 2018 to enable her to purchase a family home.
[17] From July 2018 until October 2020, Mr George lived with Danielle and her family.
[18]At the end of October 2020, Mr George went to live with Jeffrey in Tauranga.
[19] The last will of Mr George was executed bearing the date 6 November 2020. Under that will, Clive and Jeffrey were appointed as executors and trustees and the will provided that the whole of the estate was to be shared equally between them. Danielle was not a beneficiary under the 2020 will.
[20] Danielle alleged capacity issues at the time of the 2020 will and lodged a caveat against it.
[21] In a report dated 23 January 2021, and filed with the Family Court in Whangarei, Dr Susan Shaw, neuropsychologist, concluded that there “is ample evidence on clinical interview that Mr Wilson [Mr George] is experiencing quite marked cognitive impairment”. She also noted “it also appears that a situation was fairly ‘easily engineered’ by family members to have him removed from Whangarei and transported to Tauranga, without him being aware of what was happening.”
[22] On 2 July 2021, Danielle filed a denunciation of probate notice in the High Court, denouncing all rights and title to the probate and execution of the 23 August 2018 will.
[23] Concerned that their father lacked testamentary capacity to execute the August 2018 will, Clive and Jeffrey filed a caveat dated 2 August 2021 against that will.4
[24] In 2021, in the Family Court at Whangarei, Clive filed an application for review of the decision relating to the enduring power of attorney granted by Mr George to Danielle. That application noted that there were already proceedings before the Family Court in Whangarei filed by Danielle pursuant to s 101 of the Protection of Personal and Property Rights Act 1988 (application for directions).
Analysis and decision
[25] The parties appear to agree that Mr George lacked testamentary capacity at the time of the 2020 will.5 There is sound medical evidence to support that conclusion. I find that Mr George did not have testamentary capacity at the time he signed the 2020 will.
[26] The critical issue I must address is whether to grant probate in respect of the 2018 will, the 2013 will (which Clive and Jeffrey dispute), or the 2004 will.
Issue (a) – Testamentary capacity – the 2018 will
[27] The requirements of testamentary capacity are set out in the judgment of the Court of Appeal in Woodward v Smith:6
[19] Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all … Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory
4 CIV-2021-485-611247.
5 In the Family Court proceedings FAM-2020-0888-000539, the parties filed a joint memorandum of counsel on 3 May 2021, agreeing that, based on the evidence of Dr Shaw, that the evidence was sufficient to establish that the last valid enduring powers of attorney of Mr George were the ones dated 29 July 2013. In her affidavit, Danielle says that she appreciates that Mr George’s testamentary capacity might have been “borderline by the end of 2020 and that he definitely struggled with memory loss that year”.
6 Woodward v Smith [2009] NZCA 215 at [19].
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 … But if that standard is not met, he will lack capacity.
[28] In Loosley v Powell,7 the Court of Appeal endorsed its previous decision of Bishop v O’Day,8 on the relevant onus and standard of proof in a testamentary capacity case:
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.
[29] In this case, and based on the s 76 report of Dr Shaw, there is some evidence raising a lack of capacity by Mr George in 2018. Dr Shaw notes in her report that at that time, Mr George was within the dementia range. The onus thus shifts to Danielle, seeking to propound the 2018 will, that Mr George, on the balance of probabilities, had sufficient capacity to make a valid testament at that time.
[30] The affidavit evidence of Danielle makes clear that careful steps were taken by the relevant solicitors in 2018 to ascertain and clarify Mr George’s testamentary capacity. The solicitors instructed sought a health practitioner’s certificate as to his testamentary capacity. The instructing letter carefully set out the requisite test and requirements. Dr Lauren Roche certified on 21 August 2018 that in her opinion Mr George was mentally capable to provide instructions for and to sign a new will. The correspondence from the solicitors also makes it clear that they took care in ascertaining and confirming the instructions from Mr George.
[31] I acknowledge that the report of the Dr Shaw, a very comprehensive one, does raise an issue about Mr George’s capacity in 2018. However, I am satisfied on the basis of the certificate from Dr Lauren Roche, and the associated surrounding correspondence, that Mr George did have the necessary testamentary capacity in 2018. There is no reason to question the conclusion of Dr Roche.
7 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [20].
8 Bishop v O’Day (1999) 18 FRNZ 492 (CA) at [3].
[32] I turn to address the remaining issues in respect of the 2018 will, namely whether the claim by Clive and Jeffrey of undue influence is made out and whether the 2018 will is invalid because it was witnessed by Danielle’s husband.
Issue (b) – Undue influence – the 2018 will
[33]The Court of Appeal in Green v Green9 held:
The doctrine of undue influence is founded on unconscionability in the sense that equity considers it inherently unconscionable for a person to rely on a transaction that has been procured by overbearing another’s will.
…
The essence of the undue influence doctrine is impairment of free will. It is the overbearing of the will that makes the influence “undue”. The focus is thus on the mind of the person consenting to the impugned transaction, not the motives of the person exerting the pressure or influence.
…
Before the court can be satisfied undue influence has been proved, it must be satisfied the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole … It is an approach that still allows appropriate recognition for the special status of formally executed wills without imposing such a demanding standard on those alleging undue influence as to render the doctrine of little or no value in the testamentary context.
…
As the cases show, the presence or absence of independent advice is often a critical factor when deciding whether to draw an inference of undue influence.
[34]The onus of proof lies upon the proponent of undue influence.10
[35] Clive and Jeffrey say that Mr George was wholly dependent on Danielle and that she had complete control over his finances, how he spent his time, and his whereabouts. They say that Mr George was at Danielle’s “mercy” as to when and if he was able to talk to them over the phone. They say that Danielle controlled and intercepted phone calls and prevented them from talking to their father.
9 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [39]–[40], [47] and [75].
10 Re Dudley (deceased) HC Auckland 1042/92, 14 May 1993 at 11–12.
[36] Clive and Jeffrey further contend that Danielle had access to Mr George’s money and that he was in a very vulnerable position. They say that significant and unaccounted for cash was withdrawn by Danielle from Mr George’s bank account. They rely upon bank statements revealing car and veterinary-related expenses but say that there were no legitimate reasons for why Mr George required veterinary or motor vehicle services. He did not own any pets and nor did he drive.
[37] In summary, Clive and Jeffrey contend that Danielle breached her fiduciary duty to Mr George by depleting and misappropriating his funds and by failing to act prudently or in his best interests. They say that the necessary element of unconscionability and overbearing of the will of Mr George are made out.
[38] These are, or course, very serious allegations, alleging dishonesty by Danielle. Such issues are not readily or easily determined on the papers without the benefit of the relevant parties’ evidence being tested by way of cross-examination.
[39] The burden of proof rests, of course, upon Jeffrey and Clive. Furthermore, I note the finding of the Supreme Court in Z v Dental Complaints Assessment Committee.11 There, the Supreme Court held that although there is a single civil standard, the balance of probabilities, the cogency of evidence required may depend upon the seriousness of the matters to be proved and the consequences of proving them.
[40] I find that on the facts here, Clive and Jeffrey have not established, to the civil standard (i.e. the balance of probabilities), all of the essential elements of undue influence. I accept that there was a relationship of influence, but Clive and Jeffrey have not established it was unconscionable and that the will was brought about as a result of the impairment of free will.
[41] The focus is on the mind of Mr George at the time of the making of the 2018 will. At that time, he had independent legal advice; there is no evidence to suggest that the solicitors involved failed to meet their legal obligations. As I have noted, the solicitors took careful steps to obtain a health practitioner’s certificate as to
11 Z v Dental Complaints Assessment Committee [2008] NZSC 55, (2009) 1 NZLR 1 at [112].
testamentary capacity. The email correspondence also establishes that they took care to understand all the surrounding circumstances leading to the making of the will. The case law notes that the presence of independent legal advice is often a critical factor.
[42] One of the pieces of evidence relied upon by Clive and Jeffrey is the hearsay evidence from ASB security guards said to have observed Danielle and her husband’s behaviour outside the bank. I cannot place any weight on that evidence.
[43] I further note that the provision in 2018 will excluding Clive from benefiting is consistent with the 2013 will (the matter I address below) made relatively close to the time when there was a dispute (and litigation) between Mr George and Clive and his wife.
[44] In excluding Clive from the will, the will records Mr George’s acknowledgment that he has “been housed by my son Jeffrey Raymond Wilson or my granddaughter Danielle Sarah Vallely-Te Kani and but for their kindness I would be homeless”.
[45]I accordingly dismiss the claim of undue influence.
Issue (c) – Void disposition – witnessing of the 2018 will
[46] Clive and Jeffrey say, in reliance of s 13 of the Wills Act 2007, that the 2018 will is void because it was witnessed by Danielle’s husband.
[47]Danielle does not dispute that her husband witnessed that will.
[48] I am satisfied under s 13(2) of the Wills Act 2007 that despite the prima facie void disposition, Mr George knew and approved of the dispositions at issue and made them voluntarily. Accordingly, the will is not void/invalid because it was witnessed by Danielle’s husband.
[49] The will was witnessed by a legal executive at the solicitors in Whangarei and for reasons given above, I am satisfied that Mr George had proper independent legal
advice in making the 2018 will. The evidence suggests that he had good reason to give his British Royal Navy service medals to Danielle, his granddaughter.
Conclusion
[50] I conclude that Danielle has established that probate should be granted in respect of the 2018 will:
(a)Mr George had the necessary testamentary capacity at that time;
(b)The claim for undue influence is to be dismissed; and
(c)Despite the will being witnessed by Danielle’s husband, the 2018 will is to be recognised and propounded under s 13(2)(d) of the Wills Act 2007.
The 2013 will
[51] It is not necessary for me to address the validity of the 2013 will, given my findings above.
[52] I record Danielle’s position that if probate is not granted in respect of the 2018 will, then the Court should grant probate for the 2013 will.
[53] Jeffrey and Clive dispute whether there was a will made by Mr George in 2013. In his affidavit in reply of 20 November 2023, Clive says that Danielle has provided no evidence from those persons witnessing the 2013 will. He also notes that she has not provided an original copy of that will and says that a number of lawyers have tried searching for such a will but without success. Clive also says that Jeffrey called the former solicitors, who advised that after two days of searching they could not find a copy of the 2013 will.12
12 Further hearsay evidence of this kind is not helpful to the Court. I note there is no email or documentation from the solicitors confirming the position.
[54] I do not need to resolve these issues. I would note, however, that on the face of the will, it appears to be valid. There is also correspondence from the relevant Pukekohe solicitors at the time (namely 2013) that clearly suggest that Mr George contemplated and did make a will at that time.
Result
[55] I make an order granting probate in solemn form in respect of the will of Mr George Blakeman Wilson dated 23 August 2018.
Andrew J
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