Wilson v Vallely-Te Kani - [2024] NZHC 1091

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
Plaintiffs

AND

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…

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 Wilson v Vallely-Te Kani

Details

AGLC: Wilson v Vallely-Te Kani [2024] NZHC 1091
Case: [2024] NZHC 1091
Decision Date: 6 May 2024

CaseChat Overview and Summary

In the case of Wilson v Vallely-Te Kani, the plaintiffs, Clive Fitzgerald Wilson and Jeffrey Raymond Wilson, trustees and executors of the last will of George Blakeman Wilson, applied to the High Court to recall the grant of probate of a 2018 will and declare it invalid on the grounds that Mr George lacked testamentary capacity and that the will was procured by undue influence from the defendant, Danielle Sarah Vallely-Te Kani. They sought to propound a 2004 will instead, and to recover the British Royal Navy Service medals bequeathed to Danielle in the 2018 will. Danielle disputed the claims of undue influence and argued that if the 2018 will was invalid, the 2013 will should be propounded instead. The court determined the application on the papers. The court found that Mr George did not have testamentary capacity when he signed the 2020 will, but had the capacity to sign the 2018 will. The court dismissed the claim of undue influence, noting that Mr George had independent legal advice when he signed the 2018 will and that the presence of independent legal advice is often a critical factor. The court also found that the 2018 will was not void despite being witnessed by Danielle’s husband, as Mr George had approved of the dispositions voluntarily. The court granted probate in solemn form for the 2018 will and dismissed the application to propound the 2004 will. The court did not need to address the validity of the 2013 will as it did not need to be resolved.

Orders