Estate of Young

[2018] NZHC 3397

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-1740

[2018] NZHC 3397

IN THE MATTER OF

the Administration Act 1969 and the Senior Courts Act (the High Court Rules)

IN THE ESTATE

of JEAN ANTOINETTE YOUNG

BETWEEN

RAEWYN ANN TANNER and PATRICK DONALD YOUNG

Plaintiffs

Hearing:	On the papers
Appearances:	S T Clapham for the plaintiffs
Judgment:	18 December 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 18 December 2018 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Counsel:
Sonja Clapham, Barrister, Auckland

Copy to:
Kelly Flavell Law, Howick, Auckland

Re: Estate J A Young v [2018] NZHC 3397 [18 December 2018]

[1]As duty judge, I am presented with an application for a grant of administration.

Background

[2]                 Jean Antoinette Young died at the age of 95 on 5 September 2016, after over five years’ residence at St Patrick’s Home and Hospital in Auckland’s Epsom.

[3]                 Mrs Young left two wills, dated in 2006 and 2016 respectively, the latter purportedly revoking the former. Both wills appoint two of her children, Raewyn Anne Tanner and Patrick Ronald Young, as executors and trustees. The 2016 will addressed the intervening death in 2014 of her third child, Rosemary Therese Keane, and added a $20,000 gift to each of her grandchildren.

Application for grant of administration

[4]                 Raewyn and Patrick bring this proceeding for me to identify the valid will.1 Technically, it is an application for a grant of administration: an “application in solemn form” under HCR 27.6, to resolve some contentious aspect of the will’s validity; alternatively, an “application without notice” under HCR 27.4 ‘in common form’. Probate in solemn form is generally irrevocable; probate in common form is revocable.

[5]                 Following 14 August 2018 directions by Brewer J, the proceeding has been served on all interested parties, each of whom advises s/he does not intend to take any steps in the proceeding but supports the application. I am invited to determine the application on the papers, which seeks either probate in solemn form of the 2016 will, or probate in common form of the 2006 will.

Discussion

[6]                 I have limited evidence of the circumstances in which the 2016 will was drafted. Raewyn explains Patrick told her “he had told Mum that she should change her will to ensure that all grandchildren received something”. Patrick only says he instructed a solicitor “to give assistance in the preparation of a new will for my

1      Re Young, Hobbs v Christchurch City [1968] NZLR 1178 at 1179.

mother”, which he “approved”, and had his mother’s signature of it witnessed by two family friends, Roger Giles Barry and Peter John Black. The hearsay nature of Raewyn’s explanation, and Patrick’s evident availability to give evidence, means Raewyn’s statement to that extent is inadmissible as proof of its contents.2 But I do not require to know why the 2016 will was drafted, only whether there is any foundation to doubt its validity.

[7]                 Mr Barry and Mr Black describe the circumstances of witnessing Mrs Young’s signature of the will in Patrick’s presence in February 2016. They each describe an extended discussion with Mrs Young, looking through photographs Mr Barry brought with him, of various events and activities he attended with Patrick. Mrs Young was engaged and responsive, appearing to pay close attention to the photographs. Subsequently – without any discussion of its contents, or having it read to her, but after appearing closely to read the will – Mrs Young signed the will. Both Mr Barry and Mr Black apprehended from her participation in their earlier discussion of the photographs, Mrs Young understood the contents of the will. Mr Barry’s and Mr Black’s statements on the will are evidence of its validity.3

[8]                 However, Mrs Young’s general practitioner’s death certificate records her causes of death later that year to be “Advanced Dementia Years” and “Advanced Age Years”. The certifying doctor was Roderick David Mulgan, who also is a practising barrister with specific expertise in the principles of legal capacity and its assessment. Dr Mulgan separately recorded:4

Mrs Young suffered from an advanced state of dementia for several years prior to her death. She had no capacity whatsoever during that time to give instructions in respect of a will, or any other aspect of her affairs.

[9]                 In sworn amplification of that statement, Dr Mulgan explains he was Mrs Young’s doctor for over five years, from the time of her admission to St Patrick’s as a high needs patient with a diagnosis of dementia, until her death. He would see her at

2      Evidence Act 2006, ss 17 and 18.

3      Wills Act 2007, s 11(4); HCR 27.17.

4      Dr Mulgan referred specifically to “the four-limb test for testamentary capacity” established in Banks v Goodfellow (1870) LR 5 QB 549; Jacoby and Steer “How to assess capacity to make a will” (2007) 335 BMJ 155; and “the favourable comments made” about the latter in Woodward v Smith [2009] NZCA 215 at [57] and [59].

least monthly, noting – while “her physical health remained robust” – “[her] cognition continued to deteriorate”, to the point “[f]or the last two or three years of her life she had very little understanding”. He elaborates on his assessment, including by reference to independent assessments of her progressive impairment. He says the degree of Mrs Young’s cognitive impairment was such as to render her incapable of constructively being tested as to her cognitive function. He thought “her cognitive function was such that she lacked capacity for all legal purposes”.

[10]Dr Mulgan concludes:

In my opinion, the impairment was such that she was unable to give instructions for a will or to understand and approve the content of any will prepared for her. I consider she would have been below the necessary threshold of understanding by a considerable margin.

The materiality of that assessment is in the test for testamentary capacity, including whether the testator had sufficient understanding she was making a will and the effect of doing so.5

[11]             Raewyn’s evidence of her later dealings with Mrs Young is  consistent with Dr Mulgan’s assessment. So too is the evidence of a close grandchild, Michael Brian Keane. Both have clear and happy memories of their earlier dealings with Mrs Young, and of her previous capacity for decision making and recall. Both recite multiple anecdotes of Mrs Young’s increasingly serious loss of that capacity. Raewyn emphasises Mrs Young’s ability to maintain appearance, while lacking comprehension. Although it is unsaid, such may explain Patrick’s and the witnesses’ involvement in the 2016 will, as misunderstanding any manifestation of approval on Mrs Young’s part as her comprehending agreement.

[12]             I am satisfied, on the balance of probabilities, the evidence is of Mrs Young’s lack of testamentary capacity in February 2016. I therefore find the February 2016 will is not valid. The 2006 will thus is not revoked.

[13]             I therefore address Raewyn and Patrick’s alternative application ‘without notice’ under HCR 27.4. I am satisfied in the circumstances in which this alternative

5      Bishop v O’Dea (1999) 18 FRNZ 492 (CA) at [6(a)].

application arises, for the purposes of HCR 27.4(9), I have all the evidence I require to grant probate of the 2006 will in common form. The application, and Raewyn’s and Patrick’s affidavits as executors, minorly differ from the prescribed forms. But they are to the same effect and are not misleading.

[14]             Mrs Young died on 5 September 2016. Her death certificate is produced in evidence. Her last valid will dated 28 February 2006 also is produced in evidence. Raewyn and Patrick are the executors named in the will. They respectively swear and affirm they will faithfully execute the will in accordance with the law, and commit (if required) to verifying by affidavit Mrs Young’s estate’s inventory and account. I am not asked, and see no requirement, for the last.

Result

[15]I grant probate of the 2006 will in common form.

Costs

[16]             I have not been addressed on costs, and anticipate it is unlikely to be an issue. But if it is, my preliminary view is the executors are entitled to be paid their costs out of Mrs Young’s estate, as they were bound to propound Mrs Young’s 2016 will.

—Jagose J