IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CIV-2024-419-0007
[2024] NZHC 1365	

IN THE MATTER	of the Estate of Wendy Josephine Luckie	
BETWEEN	PUBLIC TRUST
Applicant	

Hearing:	6 May 2024	
Appearances:	M Freeman for the Applicant	
Judgment:	28 May 2024	

JUDGMENT OF ROBINSON J
[Application for probate in solemn form]

This judgment was delivered by me on 28 May 2024 at 11:30 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt

RE ESTATE OF W J LUCKIE [2024] NZHC 1365 [28 May 2024]

Introduction

[1]	When Wendy Josephine Luckie (deceased) died on 16 March 2023 her most recent will was dated 12 March 2014 (2014 Will). Her previous will was dated 24 June 2011 (2011 Will). In both wills the Public Trust is the named executor.

[2]	The Public Trust applies for a grant of probate in solemn form in respect of the 2011 Will. It does so because there is evidence to suggest that the deceased lacked testamentary capacity at the time she executed the 2014 Will.

The Wills

[3]	Counsel advises the estate is worth approximately $940,000 before costs.

[4]	Under the 2011 Will the deceased left the residue of her estate to her husband if he survived her by 30 days. However, the deceased’s husband predeceased her in January 2014, three months before she made the 2014 Will.

[5]	The remaining legacies in the two wills are largely identical, save for two points described below.

Grandchildren

[6]	Both wills leave a 2/6 share of the estate to be divided equally among the deceased’s grandchildren. However, the 2011 Will divides that share amongst nine of her 10 grandchildren, whereas the 2014 divides the share amongst all 10 grandchildren. The Public Trust has consulted with the grandchildren regarding the exclusion of one of them. There is no known reason for the exclusion. The Public Trust consider the omission was likely a mistake. In any event, the grandchildren have entered into a Deed of Family Arrangement (Deed) recording their agreement that if probate is granted in respect of the 2011 Will the excluded grandchild will receive a share of the deceased’s estate equal to that which will be received by the other nine grandchildren. So, the Deed negates any substantive difference between the wills in this respect.

[7]	Both wills leave a 1/6 share in total to different charities, but the charities and shares are different in that:

(a)	under the 2014 Will the Royal New Zealand Foundation of the Blind (Blind Foundation) receives 25 per cent of the 1/6 share, whereas under the 2011 Will it receives 10 per cent of that 1/6 share; and

(b)	the 2014 Will makes no provision for three charities who would each receive five per cent of the 1/6 share under the 2011 Will.

Procedure

[8]	The Public Trust applies for probate in solemn form pursuant to r 27.6 of the High Court Rules 2016 (Rules). As noted, it does so because it has concerns about the deceased’s testamentary capacity at the time she executed the 2014 Will.

[9]	The Public Trust sought and obtained directions as to service in accordance with r 27.8 of the Rules. Those directions did not require service on the deceased’s children or grandchildren because in light of the Deed the benefit they will each receive under the 2014 Will or the 2011 Will is the same irrespective of which ever will is admitted to probate. None of the parties served (including the Blind Foundation) have taken any steps to support or oppose the application.

Service

[10]	Service has occurred in accordance with Anderson J’s directions as to service dated 5 February 2024, including on the Blind Foundation. None of the parties served have taken any steps to support or oppose the application.

Public Trust’s role

[11]	In reliance on the decision of Simon France J in Public Trust v Dollimore1 the Public Trust considers it is appropriate that it advance both wills with sufficient information to enable the Court to decide which will should be probated. I agree that

1	Public Trust v Dollimore [2018] NZHC 3316.

is the responsible approach for the Public Trust to take. With the assistance of counsel it has assisted the Court without taking an overly adversarial stance.

Legal principles

[12]	The relevant legal principles are well established. They are helpfully set out in counsel’s submissions, and most recently by Anderson J in Public Trust v Niemann.2 To establish testamentary capacity, the will-maker must have a sufficient understanding of four things:3

(a)	that he or she is making a will and the effect of doing so;

(b)	the extent of the property being deposed of;

(c)	the moral claims to which he or she ought to give effect when making the testamentary disposition; and

(d)	that he or she was free from any disorder of the mind that might distort feelings or judgment relevant to making a will.

[13]	Mental soundness is a question of degree.4 The mere existence at the date of the will of a delusion or partial unsoundness of the mind not affecting the general facilities and not operating on the mind of the will-maker regarding his or her testamentary dispositions does not render the will-maker incapable of disposing of their property by will.5

[14]	The party propounding the will must show that at the time of making the will, the testator was free from the delusion or its influences; or that it was of such a character that it could not reasonably be supposed to affect the disposition of the will- maker’s property. Testamentary capacity does not require a sound or disposing mind and memory in the highest degree because these things exist on a spectrum. The will-

2	Public Trust v Niemann [2014] NZHC 934 at [8] – [16].
3	Banks v Goodfellow (1870) LR 5 QB 54, cited with approval in Woodward v Smith [2009] NZCR 215 at [19].
4	John Earles and Others (Eds) Dobbie’s Probate and Administration Practice (6th Ed, LexusNexus, Wellington, 2014) at [49.7.8].
5	Re White (dec’d) [1951] 1 NZLR 391 (CA).

maker’s mind may be affected, but there may be enough capacity left to understand and make a sound assessment of all those things in circumstances which enter the nature of a rational, fair and just will.6

[15]	If a will is rational on its face and has been properly executed, it is presumed to have been made by a person in competent understanding. However, if there are factors telling against that presumption, the Court must decide against the validity of the will unless the evidence, on the whole, is sufficient to establish that the will-maker was of sound mind when the will was signed.7

[16]	Dementia alone is not enough for testamentary capacity to be found. In Simpson v Kirkwood8 medial evidence will be given due weight. A doctor examining an attending will-maker as to testamentary capacity should make notes of the examination and ask questions to test mind, memory and understanding of a person entitled to claim on the will-maker’s assets and the extent of the estate. Less weight should be given to a retrospective assessment.

[17]	Where the medical evidence is equivocal or the will-maker had a fluctuating level of capacity, the Court is entitled to place weight on the observations and views of the persons who took the will-maker’s instructions.9 The Court will typically place greater weight on the views of an experienced officer (professional) who had previous dealings with the will-maker. Conversely, the views of an inexperienced officer who had no dealings with the will-maker ought to carry less weight.10

The 2014 Will

[18]	The 2014 Will has been properly executed. It is rational on its face. As noted, the substantive changes: removed reference to the deceased’s husband who had recently died; provided equally for all 10 of the deceased’s grandchildren rather than just nine of them; and reallocated 15 per cent of the 1/6 share she had wished to leave

6	Woodward v Smith above n 2, at [10].
7	Dobbie’s Probate and Administration Practice, above n 3 at [49.7.11].
8	Simpson v Kirkwood [2019] NZHC 454.
9	See generally, Woodward v Smith, above n 2; Public Trust v Dollimore [2018] NZHC 3316; Public Trust v White [2012] NZHC 230.
10	See generally, Public Trust v Atwool [2020] NZHC 1228.

to various charities. In the absence of evidence to the contrary the deceased would therefore be presumed to have been of competent understanding when she made the 2014 Will.11

[19]	The evidence includes the Public Trust’s “scrolling notes”. These record the Public Trust’s dealings with the deceased over time. On 14 March 2014 the deceased executed her amended will together with Enduring Powers of Attorney. The scrolling notes dated 14 March 2014 record that the will-taker was alive to potential issues concerning the deceased’s capacity. The will-taker recorded that the deceased had been diagnosed with Alzheimer’s, but that she had remembered her contact details, her date of birth, her full name and those of her children. The will taker recorded that she was satisfied with the deceased’s capacity, and that the deceased understood what changes she was making to her will. The will taker recorded that the deceased wanted to make some changes to the charities, and had forgotten to include one of her grandchildren in her 2011 Will but wanted to include her in the 2014 Will along with the other grandchildren.

[20]	On 27 January 2017 (nearly three years later) the deceased was medically certified as being mentally incapable on the basis that she was assessed as having dementia and was wholly unable to comprehend matters relating both to her personal welfare and property management.

[21]	On 19 May 2023, the Public Trust obtained an opinion from a medical specialist that the deceased would not have had mental capacity to fully understand what a will is and its consequences when she executed the 2014 Will. This opinion was a retrospective assessment. The medical specialist had met the deceased in 2019 and his opinion was based on her past medical records. He noted that:

(a)	In January 2013 the deceased’s GP notes that she suffered a “probable stroke”, although subsequent notes state “full recovery” and did not mention cognition.

11	Dobbie’s Probate and Administration Practice, above n 6.

(b)	On 25 June 2013 the deceased underwent a brain CT for “confusion and mild expressive dysphasia”.

(c)	In 2012 the deceased was prescribed donepezil, which is a drug to treat mild to medium dementia caused by Alzheimer’s.

(d)	Correspondence from the deceased’s GP to Waikato Hospital in November 2013 noted progressive senile dementia. By then she was being cared for by her son at home.

[22]	On this basis the medical specialist thought it unlikely that the deceased was cognitively capable of making a will in 2014.

Discussion

[23]	As noted above, the Court will give less weight to a retrospective medical assessment (based on contemporary notes) than it would to a medical assessment carried out when the will-maker made the will.12 The Court is also entitled to place weight on the observation of those who took the will-maker’s instructions. In the present case there is no evidence as to the seniority of the Public Trust officer who took the deceased’s will, nor the extent of his or her previous dealings with the deceased.

[24]	In the circumstances it was clearly appropriate that the Public Trust obtained the retrospective medical assessment of the deceased’s testamentary capacity. In light of that assessment, the Public Trust has responsibly asked the Court to determine whether the 2014 Will or the 2011 Will should be probated. The Public Trust applies for a grant of probate in solemn form of the 2011 Will, but has taken an appropriately neutral stance. In submissions the Public Trust acknowledges the Court may be satisfied that the deceased had testamentary capacity in March 2014.

12	Simpson v Kirtwood, above n 7.

[25]	Although the retrospective medical assessment is sufficient to rebut the presumption that the deceased had testamentary capacity in March 2014, the evidence as a whole satisfies me on the balance of probabilities that she did. As noted, the will taker turned her mind to precisely this issue and was satisfied that the deceased had capacity. The deceased also signed Enduring Powers of Attorney at the same time, and I note that the standard for capacity in that regard is lower. But the will taker’s notes make clear she was also considering the deceased’s testamentary capacity.

[26]	The nature of the changes the deceased made in the 2014 Will are also significant. She corrected a mistake in her 2011 Will by providing equally for all 10 of her grandchildren rather than just nine.13 And she updated the will following her husband’s death in 2014. In my view these precise and particular amendments are not only rational, but tend to demonstrate that the deceased sufficiently understood: that she was making a will; the effect of doing so; and the moral claims to which she ought to give effect. The amendments do not suggest the deceased suffered from any disorder of the mind that might distort her relevant feelings or judgment.

[27]	Nor do I consider the relatively small changes the deceased made to the distribution of 1/6 share of her estate to different charities signify any lack of capacity on her part.

[28]	For these reasons, notwithstanding the medical practitioner’s retrospective assessment, I am satisfied the deceased understood the contents and effect of the 2014 Will. I do not consider she suffered a disorder of the mind that would “poison her affections” or “distort her sense of right”.14 I am satisfied on the balance of probabilities that when the deceased executed the 2014 Will she had testamentary capacity.

13 At the risk of over simplification, there would be some irony in granting probate of the 2011 Will, which contained an error requiring correction by Deed of Family Arrangement, on the basis that the deceased did not have capacity to execute the 2014 Will which she made partly in order to correct that error.
14 Public Trust v Dollimore, above n 9 at [96].

Result

[29]	I grant probate in solemn form to the deceased’s last will dated 12 March 2014.

Robinson J