IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-915 [2014] NZHC 885

IN THE MATTER OF	An application for further provision out of
the Estate of Kenneth Murray Kendall, deceased, pusuant to the Law Reform (Testamentary Promises) Act 1949 and Recall of Probate.	

BETWEEN	
ROSALIND MURRAY-KENDALL Plaintiff	

AND	
PETER WEBSTER WILSON AND HELEN CATHERINE WILKINS First Defendants

PETER WEBSTER WILSON AND PETER WARWICK MACKY Second Defendants	

Hearing:	13 and 14 March 2014	

Appearances:	
Mr Finnigan for Plaintiff
Ms S Clapham for Defendants	

Judgment:	
2 May 2014	

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
2 May 2014 at 3 pm, pursuant to
Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MURRAY-KENDALL v WEBSTER & ORS [2014] NZHC 885 [2 May 2014]

Introduction

[1]       This  case  concerns  the  wills  of  the  late  Kenneth  Murray-Kendall  (the deceased) who died 28 February 2012 aged 84 years.

[2]       A proceeding has been  filed by the niece of the deceased,  Ms Rosalind Murray-Kendall  (the  plaintiff)  against  the  executors  and  trustees   under  the deceased’s  last  will  dated  12th   of  October  2009  (the  first  defendants)  and  the executors and trustees of the deceased’s penultimate will made on 12 August 2008 (the second defendants).  The 2009 will was admitted to probate on 15 May 2012. By her proceeding, the plaintiff seeks to have the 2009 will set aside as well.

[3]       If the plaintiff is successful in her litigation the will that would then be admitted to probate is one executed 24 January 1996 under which she would have received a fifth share in the deceased’s estate.  Under the two later wills she is not a beneficiary.  However, she will nevertheless receive a distribution from a trust that the deceased set up on 1 October 1997, the K M Kendall Trust (the trust).

[4]       Under the 2008 will, the principal beneficiary was a Dominican convent of nuns at Wanganui.  Under the 2009 will, the principal beneficiary was the de facto partner of the deceased, Lady Helen Wilkins, with whom he commenced co- habitation in or about October 2009.

[5]       In her earlier statement of claim the plaintiff sought to attack the wills on the grounds of lack of testamentary capacity but she does not now proceed on the basis of such a cause of action.  By her second amended statement of claim the plaintiff pleads three causes of action:

(a)	a claim under s 3(1) of the Law Reform (Testamentary Promises) Act

1949 (the Act) asserting that the deceased promised but failed to leave to her a property at Whangaehu in exchange for services she provided to the deceased;

(b)	that the 2008 will of the deceased is invalid due to undue influence

exerted on the deceased by the “Dominican nuns in Wanganui”; and

(c)       that the 2009 will of the deceased is invalid due to undue influence exerted on the deceased by the second of the first defendants, Lady Helen Wilkins.

[6]       The defendants seek summary judgment on each cause of action, or in the alternative, for the plaintiff’s pleading in respect to the alleged testamentary promise to be struck out.

[7]       The grounds upon which the summary judgment orders are sought are that none of the causes of action in the second amended statement of claim can succeed. The strikeout applications are based upon the grounds that:

a)        the pleading discloses no reasonably arguable cause of action or case appropriate to the nature of the pleading;

b)        that the pleading is likely to cause prejudice and embarrassment or delay in the proceedings;

c)        the pleading is frivolous or vexatious; the pleading is an abuse of the process of the court; and

d)	the plaintiff’s pleadings are speculative and without foundation.

[8]       Part of the relevant background includes the provisions of the previous wills made by the deceased and these are summarised in the following table:

Date	

Beneficiaries	

Prepared by	
22 February 1989	Residue to wife, Hanne
Alternative provisions in favour of Erik, Petra and Franciscan Friary	Public Trust	
24 December 1996	Residuary estate divided into five equal
shares:
Two for Franciscan Friary
One to  plaintiff
Two  to Erik and Petra equally if both living at death otherwise one	Public Trust	

15 July 2003	Four equal shares to Erik, Petra, plaintiff
and Gretchen (his sister and mother of the plaintiff)	Mr Macky	
12 August 2008	Residuary estate to St Dominic’s convent	Mr Macky	
12 October 2009	Residuary estate to Lady Wilkins if she
survives him if not then to St Dominic’s
convent	Mr Logan	

[9]       I  shall  make  further  reference  to  the  background  subsequently  in  this judgment.

Evidence of a further will

[10]     Before commencing discussion of the case and the applications which the defendants have brought, reference must be made to an attempt on the part of the defendants to file additional evidence concerning diary entries which the deceased made during his lifetime.   This material was submitted to the Court after I had completed the hearing and reserved my decision on the matter.  I understand that the plaintiff considers that there may have been another will, that there is a possibility that this additional will contained dispositions that were favourable to her and that it is  of  significance  that  only  a  short  period  later,  the  deceased  executed  the penultimate and ultimate wills which excluded her completely.  That being so, the argument would run, the changes to the later wills were precipitate and called for explanation.

[11]     In my view, having regard to the issues that arise on the applications which I have heard, the Court would not be assisted by admitting further evidence.  Rather than  adjourning  the  proceeding  and  hearing  further  submissions  based  upon additional evidence it seems preferable to me for this judgment to be completed promptly.

[12]     Given that there is only the most speculative basis for the propositions which the plaintiff would put forward, I do not see that the Court would be assisted by admitting further evidence that might be relevant to that controversy.

[13]     I therefore decline to permit further diary evidence to be adduced at this late stage.

Submissions relating to defendants’ summary judgment and strike out applications

[14]     There was no dispute between the parties that the principles applicable to the defendants’ summary judgment application are those summarised by the Court of Appeal in Westpac Banking Corporation v M M Kembla New Zealand Ltd:1

[61]      The   defendant   has   the   onus   of   proving   on   the   balance   of probabilities that the plaintiff cannot succeed. Usually summary judgment for a defendant will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim. …

[62]      Application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment only able to be properly arrived at after a full hearing of the evidence. Summary judgment is suitable for cases where abbreviated procedure and affidavit evidence will sufficiently expose the facts and the legal issues. Although a legal point may be as well decided on summary judgment application as at trial if sufficiently clear (Pemberton v Chappell [1987] 1 NZLR 1), novel or developing points of law may require the context provided by trial to provide the Court with sufficient perspective.

[15]     So far as strike out applications are concerned the parties were again in agreement.  A party may seek to strike out all or part of a pleading if it discloses no reasonably arguable cause of action.2   The Court proceeds on the basis that all of the factual allegations in the statement of claim are true, but is not required to assume the truth of a pleaded allegation which is “obviously put forward without any foundation”.3  Typically where “an essential factual allegation is so demonstrably
contrary to indisputable fact” strike out may be appropriate.4

1	Westpac Banking Corporation v M M Kembla New Zealand Ltd [2001] 2 NZLR 298; (2000) 14
PRNZ 631 (CA).
2	High Court Rules, r 15.1.
3	Collier v Panckhurst CA136/97, 6 September 2006 at [19].
4	Attorney-General v McVeagh [1995] 1 NZLR 558 at 566.

Background

[16]     The deceased was a well regarded professional sculptor.  He married twice in his life but had no children of his own.  The second marriage was to Hanne Geritson, who  had  two  children  (Eric  and  Petra)  from  a  previous  relationship.    Their association began in 1968 and ended with the death of Hanne in 1995.   Eric and Petra became the stepchildren of the deceased.

[17]     From the date of Hanne’s death onward the deceased lived on his own in Titirangi.   The evidence suggests that he was lonely and sad if not depressed following the death of Hanne.

[18]     The pattern of the deceased’s life at that time was that he worked in a studio at his home address in Titirangi making models and casting bronze sculptures as well as marketing and selling his work.  He made his own breakfast and evening meals but ate his lunch (his main meal each day) out of his home.  He did his own shopping and managed his household.  He drove himself.  He had a wide network of friends. He employed a cleaner and he had a lady assist him with his business accounts. There seems to be little question that in 1995 when the deceased was 67 years old he was a still a vigorous and energetic man who managed his life effectively.  He also was in the habit of keeping a daily journal which described in some detail and with candour events in his life and the people around him.    Reference will be made to some extracts from his diary further on in this judgment.

[19]      The plaintiff, who is a neice of the deceased and is the daughter of the

deceased’s sister Gretchen, began having frequent contact with him by telephone in

1996.   She was then living in Wellington and working for Telecom.   She had a troubled background as will become apparent from the later parts of this judgment.

[20]     The deceased was an ardent practicing catholic.   He frequently engaged in prayer and attended church.  In or about 1996 he conceived the idea of establishing a retreat house akin to a convent or a monastery, open to both men and woman, with an emphasis on assisting people in regaining their faith.  He appears to have had a keen interest in clerical dress and he envisaged that those staying at this retreat,

which they could attend for about a year, would wear as appropriate the garb of a nun or of a monk.

[21]     It was the deceased’s wish to start a religious retreat house that led him to purchase a property at Whangehu in the Wairarapa which features in the chronology of subsequent events.

[22]     In one of the conversations that he had with the plaintiff he also developed the idea that the plaintiff should join him in the retreat venture.   There was some difference in opinion about when this conversation took place but it was either in
1996 or 1997.  The plaintiff claims that if she were to have joined in the venture, she would have to adopt the clothes and lifestyle of a nun.

The basis of the testamentary promises claim in this case

[23]     The plaintiff seeks an award under the Act as follows:

1.         A  declaration  that  the  deceased  failed  to  honour  a  testamentary promise to reward the plaintiff for the services rendered to the deceased in that the deceased did not leave Whangaehu to the plaintiff.

2.         An order against the first defendants (or the second defendants if the last will is recalled from probate) under section 3 of the Law Reform (Testamentary Promises) Act 1949 for judgment vesting Whangaehu or its process in the plaintiff or for such sum as reasonable in the circumstances of the case.

[24]     The plaintiff’s claim is made pursuant to s 3(1) of the Act, which relevantly

provides:

3.	Estate of deceased person liable to remunerate persons for work done under promise of testamentary provision

(1)        Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express

or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified  amount  or  was  to  relate  to  specified  real  or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased  in  his  lifetime  of  such  amount  as  may  be reasonable, having regard to all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate, whether as creditors, beneficiaries, wife, husband, children, next-of-kin, or otherwise.

[25]     The requirements of s 3(1) can be summarised as:

a)	the claimant provided services to the deceased during his life time beyond the normal expectations of such relationship;

b)	the deceased made a promise to make provision for the claimant in their will;

c)	the existence of a nexus between the promise and service; and d)	the promise was not honoured in the will.
[26]     If a testamentary promise is made out, s 3(1) requires that any relief provided to  the  claimant  should  be  reasonable  in  the  circumstances  of  the  case.     In determining   that   question   the   Court   is   to   have   reference   to   all   relevant circumstances, and as noted by the Court of Appeal in Powell v Public Trustee that
includes in particular:5

(1)	the circumstances in which the promise was made and the services were rendered or the work was performed.

(2)	the value of the services or work.

5	Powell v Public Trustee [2003] 1 NZLR 381 (CA) at [10].

(3)	the value of the testamentary provision promised. (4)	the amount of the estate.
(5)        the nature and amounts of other claims on the estate.

[27]     In that decision Tipping J also referred to the Privy Council decision in Re Welch,6 where Sir Robin Cooke observed at p 6 that “the criterion as to the relief to be granted is reasonableness”.7   Tipping J also observed:8

… [m]anifestly it will often be impossible or inappropriate to weigh in any nice scales services or work on the one hand and testamentary reward on the other.  An assessment, even a generous one, by a promisor able to exercise a sound judgment would not lightly be departed from.  In this case, however, the difficulty is that there is no evidence that the promises were ever seen by the deceased or the appellant as an assessment of a reward for services.  As already indicated, their Lordships regard much of the evidence of services as tenuous.

[28]     I further accept the statement of the purposes and effect of the Act set out in the submissions which Ms Clapham filed to the following effect:

The Law Reform (Testamentary Promises) Act provides a remedy where a person  who is now deceased, promised during his lifetime (expressly or by implication) to reward the applicant for services rendered or work performed by the claimant, by making provision for the claimant in the deceased’s will. The Law Reform (Testamentary Promises) Act empowers a Court to award to the claimant such sum as may be reasonable in all the circumstances, having regard to the value of the services rendered and work performed and the nature and amount of other claims (including claims under the Family Protection Act).

[29]     In regards to this particular case, it is clear that the alleged promise was not honoured in any of the deceased’s wills.   The plaintiff did not receive any testamentary benefit in the 2008 or 2009 wills.  The remaining questions are whether a valid promise was made, whether she provided services that went beyond that normally  expected  and  whether  there  is  a  nexus  between  the  promise  and  the services.    An  additional  question  arises  as  to  whether  it  is  reasonable  in  the
circumstances to make an award to the plaintiff out of the deceased’s estate.

6	Re Welch [1990] 3 NZLR 1; (1990) 7 FRNZ 536 (PC).
7	Powell v Public Trustee, above n 5 at [11].
8	Re Welch, above n 6 at 7.

The promise element

[30]     The plaintiff alleges that the defendant made a promise to her, the substance of which was stated in the following terms in the amended statement of claim:

42.       Recognising the costs that the plaintiff had incurred – monetarily, emotionally and physically – about the beginning of May 1997, in conjunction with the plaintiff’s agreement to participate in the retreat house   agreement,   the   deceased   and   the   plaintiff   reached   an agreement whereby the deceased would provide to the plaintiff the following security –

(a)        If the deceased sold the Whangaehu property, the deceased would  pay  the  plaintiff  half  the  profit  (which  did  not happen);

(b)        The deceased would leave the Whangaehu property to the plaintiff   on   his   death   under   his   will   [“testamentary promise”].

Details of which the deceased confirmed in writing in his diary for 1
May 1997.

[31]     In her affidavit dated 29 January 2014 the plaintiff gave an account which I think can be fairly summarised as follows.   At the time she agreed to help the deceased  with  founding  the  retreat,  the  plaintiff  was  living  in  Wellington  and working for Telecom as an online help operator.  While talking to customers in the course of her work she would, in promising cases, ask questions about whether they happened to know of any suitable properties in the area where they lived.  It was by this means that she says she found out about the Whangaehu property.

[32]     After setting out her account of the various services that she provided and about the agreement pursuant to which she would come to live at the Whangaehu property the plaintiff then says:

30.       As these “rules” became clearer, we discussed what I had been promised and the costs that I incurred ... not just monetary but emotionally and physically for me.  His first idea was that he would gift me one of the properties ... there were two titles to the [Whangaehu] property and that I could move there but be separate.  He might “contract” me to cook or shop or help out.  I asked him how I would live; there was no house on that land. He then suggested he buy me a house up here in Auckland ... and I started to look, especially in Titirangi and Waiheke.  He then wrote in his diary which is annexed to the first affidavit of Lady Wilkins, ...  that he would sell Whangaehu and split the profit with me or leave it to me in his will.  In

conversations and partly in his diary, the deceased acknowledges his debt to me and his part in completely disrupting my life, but there was little if any remorse.  The deceased was completely self-absorbed and in his own words (in diary attached) “balmy about this idea”.9    He had serious doubts about whether he could pull it off:  ... if I asked about why he didn’t include in his sharing about the retreat with others the “rule” about wearing Habits and Franciscan robes he would attack and belittle me as not being a “believer” in his dream.

(emphasis added)

[33]     Mr Finnigan, counsel for the plaintiff, accepted that that was the key part of the evidence relating to the existence of a promise.

[34]     However, dealing first with the core allegation as I see it, it is necessary to also examine the evidence in the form of the diary entry which the deceased made concerning the discussions about what would happen on the sale of the Whangaehu property or what was to happen to it on his death.

[35]     The diary entry is dated 1 May 1997 and is in the following terms:

Long discussion with Roz [the plaintiff] about it all.   Lots of things came out.  In the end she came up with something she’d like - If I sold the place she could have half of the profit on the sale and that I’d leave it to her - the property - on my death.  Sounds OK.

[36]     Ms Clapham, counsel for the defendants, emphasised the fact that the diary entry states what the plaintiff said she wanted by way of a property provision for herself.  But the meaning of the deceased’s last two words it is not clear.  The diary entry does not establish that, having heard her out, the deceased gave any response to what she had said to indicate that he accepted the proposal that she had made.  The literal wording used indicates that the last words in the passage, “[s]ounds OK”, may well merely reflect the diarist’s subsequent thoughts about the conversation.   The diary entry does not say, as could be expected if the plaintiff’s account were correct, “I said to her that sounds okay”.

[37]     I next deal briefly with the plaintiff’s assertion that in July 1997 there was discussion about the deceased buying a house for her on Waiheke Island.   This,

transaction the plaintiff says, was to be financed entirely by the deceased borrowing money.  Nothing seems to have come of that proposal.

[38]     The  question  then  is  whether  on  the  defendants’  summary  judgment application the Court should conclude that the plaintiff’s case so far as it relates to whether or not there was a promise within the terms of s 3(1) of the Act is plainly unable to succeed, the consequence of which is that judgment ought to be entered in favour of the defendants.

[39]     The position that the plaintiff’s evidence leaves the Court is that there is considerable doubt whether a promise of the kind alleged was actually made relating to the sale or testamentary disposition of the retreat property.  I accept that there are, as Ms Clapham submitted, reasons to have reservations about the evidence of the plaintiff.  However, on balance I do not consider that it would be justified to enter summary judgment against the plaintiff in regard to the alleged promise.   It is a matter for trial at which the Court can weigh her oral evidence against the probative value of the diary entry and properly determine this question.

The services element

[40]     Mr Finnigan referred me to the Court of Appeal’s decision in Samuels v Atkinson in which there is a discussion of the meaning of “services”.10   In particular, the Court discussed the difficulties over whether things done voluntarily or that arise as an incident of living in close proximity should be regarded as “services” for the purposes of s 3(1).11   In the next paragraph the Court cited Thwaites v Keruse:12

Companionship, affection, cohabitation, may properly be regarded as “services” in some circumstances, where for example the promisor is elderly or lonely or in poor health. But that cannot be so in the case of young people simply sharing together the pleasures of each other’s company in a common household.

[41]     It went on to cite a passage from Re Fagan (dec’d):13

10	Samuels v Atkinson [2009] NZCA 556; [2010] NZFLR 980.
11	At [49].
12	Thwaites v Keruse [1993] 11 FRNZ 19 (CA) at 23.
13	Re Fagan (dec’d) [1999] NZFLR 222 (HC) at 236.

… the apparent difference may be resolved in conventional cases by first assessing the norm, as was done in Re Welch; and then deciding whether the benefits conferred significantly exceed the norm, in which case, as other authorities  decide,  an  award  […]  may  be  made  taking  into  account competing claims, even though neither deceased nor plaintiff viewed the matter in commercial terms.

[42]     The Court in Samuels v Atkinson concluded that a claimant must ‘identify “something extra”’ in order to establish that the services provided to the deceased go beyond  those  expected in  the normal  course of their relationship  and  are those contemplated by s 3(1).14

[43]     I read the authorities as requiring the Court to enquire whether:

a.	The suggested services are in fact services that qualify for recognition in terms of the Act;

b.	Whether the services went beyond what might be expected as to the mutual help given by family members to one another; and

c.	Whether the provision of services was offset by advantages conferred upon the claimant so that no further recognition is called for.

[44]     There is no dispute that the services that Ms Clapham summarised in her submissions were the ones which the plaintiff relies on to support her application.  I have already made brief reference to part of these but it is necessary to set out a
fuller summary of the services which are said to include the following:

   August 1996: plaintiff and the deceased begin frequent telephone and written

communication.

   September 1996: Plaintiff seeks out and inspects properties suitable for the retreat house, including three properties in Hawkes Bay, one in Onga Onga, and another (in November) in Wellington.

   January 1997: Plaintiff travels to Auckland and spends a week caring for the deceased who was unwell at the time.   Later that month she inspected the
Whangaehu property with a real estate agent.

   March 1997: Deceased entered into an agreement to purchase the Whangaehu property  on  the  plaintiff’s  recommendation,  and  plaintiff  arranged  two tenants for the property pending settlement of the purchase in October. Plaintiff relocates to Auckland to care for the deceased and assist with his Diocesan School exhibition. She further helps sell two Auckland properties
and to inspect two further properties.

   April – October 1997: When living with the deceased, the Plaintiff pays the housekeeper, cooks and cares for the deceased, arranges quotes from removal companies, gardens at one of the Auckland properties, massages the deceased’s feet, liaises with the bank for financing, visits the Whangaehu property twice to inspect and organise new people to move in, and assists in
the deceased’s exhibition.

   September 1997: Plaintiff organised travel bookings, passport renewal, and removal  trucks  to  move  belongings  to  the  Whangaehu  property  for  the
deceased.

   October 1997 – October 1999: Plaintiff regularly visits the deceased on a two-monthly basis, including long weekends, birthdays, and a three week Christmas vacation. On such occasions the plaintiff cooked, gardened, and assisted the deceased unpack his belongings.  One time she looked after the
Whangaehu property when the deceased visited Cambridge for a period.

   December 2007: Plaintiff relocates to the Whangaehu property to care for the deceased long term and lives there until April 2008 when the deceased ejects
her.

   February 2012: After the plaintiff moved out of the Whangaehu property in

2008, she returns for 9 days to assist with the deceased’s care.

[45]     The defendants accept that the concepts of “work” and “services” in s 3(1) of the Act are to be given a large and liberal construction.15    In line with the previous discussion, the defendants also accept that “services” can include intangibles such as the companionship, affection and emotional support provided by a niece to an uncle that  goes  beyond  what  would  be  normally  expected  of  that  relationship.    It  is therefore open to the plaintiff to argue that the services provided qualify for the
purposes of s 3(1).   On this basis it would be inappropriate to reach judgment without full consideration of the evidence at trial, and therefore summary judgment against the plaintiff is unavailable on this point.  Whether the alleged services were rendered, their extent, whether they were no more than the reciprocal help that relations in the same family would provide to each other and similar questions require the Court to determine disputed questions of fact.   The account which the plaintiff provides is not so improbable or inconsistent with other contemporary evidence and documents that the Court can conclude that there is no issue of substance which ought to go to trial.

The nexus element

[46]     In regards to the requirement for a nexus between a promise and work or services in s 3(1), Ms Clapham made the following submission:

In Jones v Public Trustee [1962] NZLR 363 (CA) the Court said, at p 364:16

…it is essential that the promise must, either expressly or impliedly, be one to reward the promisee for services rendered or work done by making some testamentary provision. …and not a mere promise to make testamentary provision which is not linked with, or founded upon, such services or work.

[47]     I accept that as an accurate statement of the position in regards to the nexus element of s 3(1).

[48]     The diary entries make it clear that the deceased for many years loved his niece.   He was, however, not blind to her weaknesses.   In particular, he observed with regret the fact that the plaintiff did not seem to make very wise choices in her life, especially in managing her finances.  He also perceived that salvation lay in her

own hands rather than looking to other people to provide her with the financial security that was obviously important to her.

[49]     On 28 April 1997, before the date of the “promise” and at the time when she was  living with  the deceased  in  his  house at  Auckland, the plaintiff raised  the question of whether the deceased had discussed making provision for her security and future with the person who assisted the deceased with his financial affairs.

[50]     His diary entry records this conversation and notes:

I said “no” and asked if she wanted to talk about it all.  I told her I couldn’t provide future security and suggested she go on and work with Telecom and get a good “history” with the company.

[51]     During the conversation they went on to discuss whether it was suitable for her to leave Auckland and live at the Whangaehu property (which the plaintiff had contracted to purchase) which would mean she would be isolated from her support Fellowship.  He applauded her efforts to clear her debt and spoke of what he had at risk with starting the retreat venture.   The response which the deceased gave, according to the diary note, was a hostile one.

[52]     Subsequently  on  8  June  there  was  another  angry  exchange  between  the deceased and the plaintiff after the deceased made complaints about the effect her behaviour had on a resident at the house.  The talk ended with the deceased putting to the plaintiff an accusation that he had heard that she had said of him that he was “just the last in a line of men who had buggered up her life”.  The plaintiff denied that she had made such an assertion but the exchange is indicative of the negative impression that the deceased had about the plaintiff accepting responsibility for her own financial future.

[53]     Subsequent diary entries show that the subject of his step-son’s financial security was exercising the deceased’s mind quite considerably.  It is clear that he felt pulled in several directions in that he wanted if possible to put resources into funding the retreat, to try and help the plaintiff financially, and also continue to give financial assistance to his stepson Erik.

[54]     In her affidavit she said she arranged travel arrangements, passport updates and the like for the deceased in August 1997 when he was proposing to go on an overseas trip.  She also arranged for removal trucks in the shifting operation from Titirangi to Whangaehu.  She says of her uncle in this regard “he expected nothing less and gave nothing in return”.  Whether this is an account of the plaintiff making unrecognised services which were over and above what might be expected having regard to the familial relationship that existed between the two of them or whether it was part of the give and take of their relationship poses, again, questions that are unsuitable for determination on a summary judgment application.

[55]     There is little point in examining the supposed linkage existing between the assistance that the plaintiff says she gave to the deceased and the claimed promise to benefit her.  That is because they all involve questions of the extent and degree and judgment  which  places  them  outside  the  scope  of  the  matters  that  can  be appropriately dealt with by way of a summary judgment application.

[56]     This discussion is enough for present purposes to show that the deceased may well have made his alleged promise out of a sense of family duty or affection felt for the plaintiff, or concern for the difficulties that she had had in life, rather than to signify a reward for promised services.   Since it is doubtful whether the plaintiff can establish the nexus required by s 3(1), it is unlikely that an order granting the
testamentary promise would be justified.17

[57]     However, that issue is also one that requires the testing of evidence  and which is unsuitable for disposition by summary judgment.

Quantum

[58]     The point is made for the defendants that reciprocal benefits must be brought into account. While the plaintiff likely rendered services of a type contemplated by s 3(1) at that time she also received reciprocal advantages and benefits from the deceased.  In Powell v Public Trustee the Court of Appeal held:18

A claim for services or work which have already been partially remunerated in  money,  can  succeed  only  to  the  extent  of  the  shortfall.  If  intangible services have been partially “remunerated” by reciprocal benefits, the same approach must logically be taken. As intangible services like companionship qualify as service, reciprocal benefits of a like kind must equally qualify as partial remuneration. A claim can succeed only to the extent of the unremunerated balance. If intangible services were to be wholly matched by reciprocal benefits, there would be no balance to claim.

[59]	The defendants say that the reciprocal advantages and benefits received by the plaintiff include the following:

a)        The plaintiff had the benefit of rent-free accommodation in 1997 and

2007 at a time when she had no home.

b)        During  this  time  the  plaintiff  enjoyed  her  uncle’s  companionship,

affection, and emotional support.

c)        In January 1997 the deceased paid her airfare and gave her a cheque for $1000 when she came up to Auckland on the occasion he mismanaged his Tegretol medication.

d)        The  plaintiff  purchased  food,  but  there  is  no  evidence  that  she purchased groceries for the household.

e)        While in Titirangi she paid the cleaner from time to time.

f)         While at Whangaehu she once paid for water but was repaid by the deceased.

g)        In 2008 the deceased paid $5,800 for her furniture to be transported back to Auckland when she left Whangaehu.

h)        The plaintiff enjoyed the deceased’s hospitality at Christmas, holiday times and at other times. Sometimes that hospitality extended to her friends.

[60]     The defendant submitted that any work or services provided by the plaintiff were exaggerated and were in any event adequately rewarded by the benefits she received from the deceased.   They argued that both the benefits received by the plaintiff in the deceased’s lifetime and the “imminent” distribution from the trust mean that no award can properly be made for the plaintiff from the deceased’s estate.

[61]     In response the plaintiff challenged the assertion that a sizeable distribution from the trust was imminent: the plaintiff is only a discretionary beneficiary, and in fact no distribution has been made.

[62]     There are two difficulties with dealing with the matter of quantum as part of the present proceeding.   First, the assessment of what value was provided by the plaintiff, on the one hand, and what she received on the other is preferably to be undertaken at trial rather than on a summary judgment basis.  The defendants cited Harris v Pyne Gould Guinness Ltd in support of their argument.   However, that decision, which followed a full trial, involved an evaluation of the value of the
services provided weighed against the value of the testamentary promise.19

[63]     Secondly, and this flows from the first observation just made, unless the Court is able to come to a clear view that any benefits provided were outweighed by reciprocal benefits received, then it cannot be said that there was an imbalance requiring redress by way of an order under the Act.

Conclusion on summary judgment

[64]     For the foregoing reasons I am not able to agree that this is an appropriate case where summary judgment ought to be entered for the defendant.

The application to strike out the testamentary promises claim

[65]     Rule 15.1 of the High Court Rules (the rules) provides as follows:

15.1	Dismissing or staying all or part of proceeding

(1)	The court may strike out all or part of a pleading if it—

19 Harris v Pyne Gould Guinness Ltd HC Christchurch M316/88, 23 November 1989.

(a)       discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)	is likely to cause prejudice or delay; or

(c)	is frivolous or vexatious; or

(d)	is otherwise an abuse of the process of the court.

(2)        If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)        Instead of striking out all or part of a pleading under subclause (1), the court may  stay all or part of the proceeding on such conditions as are considered just.

(4)	This rule does not affect the court's inherent jurisdiction.

[66]     The first ground upon which the application is based is that as a pleading it is defective  and  is  therefore likely to  cause prejudice and  delay.    The defendants complain that the statement of claim contains pleadings of evidence, it is prolix, refers to  matters  that  are scandalous  and  fails  to  meet  the relevant  and  overall purpose of a pleading which is to provide the opposite party and the Court with a clear understanding of what is alleged and against whom.   Reliance is generally placed on r 15.1.

[67]     I accept that there are shortcomings to the statement of claim.  It is prolix as is indicated by the fact  that it extends to 31 pages in length.   It also includes recitation of evidence in the case which should not be included in a statement of claim.  By way of example paragraph 78 and 79 which has been chosen at random read:

78.        Based  upon  diary  entries  of  the  deceased,  on  29  September  2009,  the deceased records:

Helen said she was nervous of Roz!!.   I told her she had no claim to this house.  I said I’d make a new will leaving Wairarapa to her. “What about the nuns?”  That dream she had a few days/nights ago. I said that have no claim either hand anyway shed be the boss! I’ll go tomorrow to Bruce Logan  and  make  another  will  leaving  Wairarapa  to  Helen.  She’s  put

spiritual Physical energy into the dear old place-and she needs to have it to live in. The Lady Abbess.

79.	Based upon diary entries of the deceased, on 2 October 2009, the deceased records:

Helen sorting out her room-preparatory to leaving this afternoon.

.........

we went into town.  Me to the Lawyer’s rooms to change my will and leave everything to Helen.  Lady Helen Wilkins She’s thrown in her lot with me. The least I can do is-the same Helen collected me

........

She did it by measuring. Clever girl. My girl.  My Super Sister.

[68]     The statement of claim contains other instances of the pleading of evidence.

[69]     On grounds of prolixity alone and the inclusion of narrative and statements of evidence in the statement of claim, it can be said that the statement of claim does not comply with the High Court Rules.

[70]     In The Commissioner of Inland Revenue v Chesterfields Pre-Schools Ltd & Ors the Court of Appeal noted:20

Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and an abuse of the court’s processes.  Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible.

[71]     In my view, the present second amended statement of claim is just such a pleading.

[72]     I do not, however, consider that the statement of claim should be struck out on these grounds.   If the proceeding is to continue, an opportunity ought to be given
to the plaintiff to file a succinct claim setting out the matters that she relies upon as

20	Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53’ [2013] 2
NZLR 679 at [89].

constituting such causes of action as remain after consideration by the court of the applications which the defendants have made.

[73]     It is also said that the statement of claim is defective because it does not plead with any particularity the nexus that is required between the services alleged to have been provided to the deceased and the alleged testamentary promise.  While I agree that such elements are far from clear in this case, I consider that the elements of the claim, including the nexus between the services and the promise, can (albeit with some difficulty) be divined from the statement of claim.

[74]     The claim to strike out is also brought on the basis that the proceeding is frivolous.

[75]      Associate  Judge Bell  considered  the meaning of those  terms  in  Deliu v Hong.21    He concluded that a claim could be seen as frivolous if it lacked value, importance, seriousness or was completely untenable.22     I respectfully agree with those observations.

[76]     I do not consider that the present claim as so described can be viewed as “frivolous”.  The plaintiff’s claim is not completely untenable, nor does it lack value, importance or sincerity.

[77]     The defendant also makes a number of complaints about the conduct of the plaintiff since the date of the death of the deceased.   These include having her solicitors caveat probate of the deceased’s last will in March 2012 only to withdraw it the following month.   She also lodged a caveat against the title to the property which  was  owned  by the  trust  on  the  apparent  basis  that  she  claimed  to  be  a beneficiary of the trust.  Plainly there was no ground for lodging such a caveat and in due course it was withdrawn.

[78]     It was submitted that the present proceeding was brought for:

Spurious reasons generated by spite, and a grievance that while she was once
named as a beneficiary in the deceased’s will, she was not in the last.

[79]     This claim of spitefulness on the plaintiff’s behalf was supported by some letters which she had written to Lady Helen Wilkins after the death of the deceased. It is true that at least one unpleasant and unreasonable letter was sent in January
2013 which concluded with her saying that there was no prospect of her  being successfully pursued for a costs order because she had no money.  She said:

So you will need to bankrupt me Helen… But you have already done that in a way haven’t you?

[80]	Those comments were uncalled for.  However, I am not prepared to accept that the overall course of conduct on which the plaintiff has engaged show that she is pursuing the proceedings for a collateral purpose to either apply improper pressure to the trustees or to cause difficulties to Lady Helen Wilkins out of spite.

Undue influence

Introduction

[81]     Because of the conclusion that  I have come to  that judgment cannot  be entered  on  summary  judgment  in  favour  of  the  defendant  in  regard  to  the testamentary promises cause of action, summary judgment in respect of the other causes of action which seek to set aside the wills of the deceased for undue influence
must similarly be declined.23   However, the defendants also seek orders striking out

the undue influence pleading on the ground that it discloses no reasonably arguable cause of action.

[82]     As  part  of  the  background  it  is  necessary to  mention  the  wills  that  the deceased made prior to his death.  This has significance in terms of the question of consistency of testamentary disposition and also may have significance because of assertions that the testator was becoming progressively more irrational in respect of certain delusions which the plaintiff says that he was subject to in his closing years.

[83]	In regards to the 2008 will, the plaintiff argues there are grounds to suppose it was entered into as a result of undue influence because:

a)        The will is inconsistent with previous testamentary dispositions which favoured his family members; instead, it left his estate to strangers; and;

b)        The deceased was by a combination of circumstances vulnerable at the time he signed the will because he had a “convent delusion” and the object of his benefactions was an order of nuns.

[84]	In regards to the 2009 will, the plaintiff’s argument follows a similar vein:

a)	The will is inconsistent with earlier dispositions;

b)        The deceased was subject to delusions (in particular the “convent delusion”) which resulted in vulnerability to any undue influence that might be brought to bear;

c)        The deceased’s de facto wife of recent years discussed the terms of the will with him and therefore, it may be supposed, brought undue influence to bear upon him.

[85]	The nature of undue influence was explained in Re Dudley (deceased).24

Fisher J summarised the doctrine in the following terms:25

(a)        The key question is whether, because of extraneous pressure from others,  the  will- maker  has  signed  a  will  contrary to his  or  her wishes.

(b)        Persuasion which has left the final choice to the will-maker is not undue  influence. Where  there is  evidence  of  strong influence  or pressure, the Court will approach the question of the will-maker’s own wishes with suspicion. However, if satisfied that the will- maker’s wishes have not been overborne, and that in the end he or she wanted the will in that form, the Court must uphold the will. In

those circumstances the ultimate source of the will is not the external
pressures but the exercise of the willmaker’s own free judgment.

(c)        The  onus  of  proof  lies  upon  the  proponent  of  undue  influence.
However direct evidence of undue influence is not to be expected. These  cases  usually  turn  upon  the strength  of the circumstantial
evidence.  The   question  is   whether   from  all   the   surrounding
circumstances, with particular emphasis upon the result of the will and  the  circumstances  in  which  it  was  actually  executed,  undue
influence is to be inferred.

(d)        For this purpose all the circumstances bearing directly or indirectly upon the free will of the will-maker at the time of execution are relevant.   These   include   illness,   pain   and   suffering,   physical weakness and mental deterioration falling short of testamentary incapacity. They also include dependency upon others in legal, business, social, medical and/or domestic matters. One should view with special care any powerful need, obligation, or vulnerability on the part of the deceased which others might be in a position to exploit.

(e)        However, it is not enough to show that others had the means and opportunity to unduly influence the deceased and that there has been a recent testamentary disposition in their favour. The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.

[86]     I respectfully agree with the above summary.

[87]     It is necessary to further mention some of the circumstances which have been considered as giving rise to presumptions of undue influence.  The position as stated in the following terms in Laws of New Zealand:26

... Undue influence cases fall into two classes. The first comprises cases where it is proved that actual influence was used on the transferor in respect of the transaction in question. This class of case consists of circumstances where the concern is with pressure applied, akin to common law duties, and where  the  concern  is  with  the  actual  use  of  influence  falling  short  of pressure. The second comprises cases where the relations between the parties have been such as to raise a presumption that the transferor was subject to undue influence.

In  those  cases  where  a  presumption  of  undue  influence  arises,  the justification for the presumption is that the character of the relationship between the donor and the donee raises suspicions about the voluntariness of the donor's actions. A presumption of undue influence may arise in one of two ways. It may arise from certain specific relationships which are said automatically to give rise to a presumption of undue influence. For example, between:

   penitent and religious adviser;

   patient and medical adviser or medical assistant;

   client and solicitor or legal advisor;

   beneficiary and express trustee;

   child and parent; and ward and guardian.

Alternatively, a presumption of undue influence may be raised from the particular circumstances in which the parties find themselves. Therefore, there are relationships which do not produce an automatic universal presumption of undue influence (for example, between fiancé and fiancée, or wife and husband, or soldier and officer), but where in the circumstances of the particular relationship a presumption of undue influence ought to be recognised. Once the presumption is raised, whether automatically or on the facts of the particular case, an evidential onus falls on the other party to rebut the presumption.

[88]     I accept that the above is a correct statement of the general principles and add only that since the decision of the House of Lords in Royal Bank of Scotland Plc v Etridge  (No  2)  it  has  been  settled,  at  least  in  the  United  Kingdom,  that  the relationship of husband and wife is not one from which an inference of undue influence flows.27   That position appears to have been accepted in New Zealand.28

Background

[89]   Some background factors need to be considered before considering the application of the above principles to the circumstances of this case.  Mr Finnigan for the plaintiff stressed the fact that up until 2003 the deceased included his stepchildren and niece in his will but that after that and from the date of the next will in 2008 the family were omitted.

[90]     Essentially the plaintiff is inviting the inference that a continuation of making benefactions for the family was to be expected and that any unexplained departure

27	Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773.
28         Stephen Kós QC “Undue Influence” in Andrew Butler (ed) Equity and Trusts in New Zealand (2nd  ed, Thomson Reuters, Wellington, 2009) 679 at 697; see also Westpac New Zealand Ltd v Nicol HC Auckland CIV-2010-404-7649, 15 July 2011 at [53].

from that pattern of testamentary intention would call for an explanation in the absence of which an adverse inference could be drawn that the deceased was acting under some form of influence which perverted his true wishes.  However, there is no authority which holds that in general terms a failure to make provision for family members of itself points to the likelihood or even possibility that undue influence has been applied and that that has resulted in the deceased being deflected from making the type of will that he/she could have been expected to make.

[91]     The next point is that inconsistency of testamentary disposition (whether to relatives or to other persons or institutions, for example) may, if unexplained, be relevant circumstantial  evidence which either on its own or together with other evidence will go to prove that it was likely that the will was not in fact the product of the testator’s own volition.

[92]     It has to be borne in mind that the testator was free to make such dispositions as he chose, subject of course to the need to give effect to any enforceable testamentary promises - a matter with which the first part of this judgment was concerned.

[93]     Secondly, even if the pattern of his previous wills indicated a concern for and interest in his family’s welfare, human circumstances do not remain static.  The trust of which the plaintiff and the stepchildren are beneficiaries had been used as the vehicle to acquire (together with a private company in which he owned the shares) the retreat property when it was purchased in 1997.  It is correct that the trust owed substantial debt back to the deceased for the funds which were advanced for the purchase of the property but substantial assistance was nonetheless available to the beneficiaries over and above what he had given to some of them in his lifetime.

[94]     Third, it is apparent that the affection which the deceased had for the plaintiff waned in the latter years of his life.  While there can be no definite pronouncement on the matter in a judgment of this kind, one can at least see grounds upon which he was arguably justified in his disenchantment with the plaintiff.

[95]     Fourth, as the years went by and the children progressed into adulthood, it would not be remarkable if the deceased took the view that they, and the plaintiff in particular, should be able to provide for themselves.

[96]     Fifth, it would also seem to be the case that the lifelong interest that the deceased had in the Roman Catholic faith became ascendant in the latter years of his life.  The fact that he might wish to benefit the church was, of course, his prerogative and it would be wrong to view his redirection of his benefaction to such an object as the church as being somehow aberrant.

[97]     The final background factor which influenced his testamentary decisions was the entry into his life of Lady Helen Wilkins.  This seems to have occurred around about 2004 when he was 76 years old.   Over the next eight years the relationship evolved to the point where they commenced living together in December 2009, albeit with interruptions, as man and wife.  The testator was quite old when this latter relationship commenced.  This circumstance was commented upon by Dr Srzich, a consultant psychiatrist and psychogeriatrician in his affidavit.  When commenting on the matter of undue influence, Dr Srzich stated:

28.	The finding of undue influence is ultimately a matter for the court.
However, there are what have been called some “red flags” which
suggest that undue influence may have occurred.  They include the following:

a)	Mr Kendall’s use of a new lawyer in making his 2009 will;

b)	The dramatic shifts in his bequests between 2008 and 2009 compared to the 1996 and 2003 wills;

c)	The amount Lady Helen was to benefit from the new will.

[98]     I note that these red flags and risk factors do not by themselves indicate that undue influence did occur, only that they raise the possibility that it may have been exerted.

[99]     Lady Wilkins clearly made an impression on Mr Kendall; he left his estate to her.  Their very close relationship is clear from the diaries.  However this influence is not in itself necessarily undue.   As to the other “red flags”, the use of the new lawyer  may  possibly  be  explained  by  the  fact  that  the  testator  had  moved  to

considerable distance away from Auckland where his original lawyer practised and that it was understandable that he should seek the services of a lawyer practising in the locale where he now lived, that is in the Wairarapa.

[100]   The preference for Lady Helen Wilkins in the last will is considered below.

The 2008 will - undue influence

[101]    Counsel for the plaintiff placed considerable stress in the submissions on the apparent obsession that the deceased had about nuns and their items of personal clothing.  This together with the proposal that the retreat at Whangaehu should be run along the lines of a religious house with the inmates dressing in the ecclesiastical garb of nuns or monks led Mr Finnigan to categorise the deceased as being in the throes of a “convent obsession”.  This was the basis for an expression of opinion that because the deceased was showing signs of derangement in this area of his life that he lacked testamentary capacity and was vulnerable to undue influence.

[102]   Assistance is available to the court to assess this matter in the form of the evidence of Dr Srzich.   Significantly, Dr Srzich was retained by the plaintiff to provide opinion evidence.  Having reviewed the evidence about the matters which were compendiously described by Mr Finnigan as “the convent delusion”, the expert concluded  that  there  was  “no  convincing  evidence  to  suggest  that  Mr  Kendall suffered from delusions at the time he made his 2008 and 2009 wills”.

[103]   However, he completed his affidavit by saying that “of course my opinion could be challenged and Mr Kendall’s statements may be interpreted as indicating the presence of a psychotic illness.  I cannot definitively exclude the fact that he was suffering from  delusions”.    The “messages” to  which  he was  referring to  were messages  that  the  deceased  considered  he  was  receiving  from  God  about  the direction he should take in his life.  Dr Srzich said these messages “are not clearly ideas of reference or pathological in anyway other way (sic) or “signs” that people may see in mundane day-to-day events”.

[104]   He earlier dealt with the issue of the sexualised references that the deceased had made to women’s undergarments in relation to female religious personnel.  The doctor was not prepared to see these as being evidence that the deceased suffered from psychotic illness.

[105]   Against that background I shall briefly consider the 2008 will.  The deceased had had previous dealings with the sisters of a Dominican convent in Wanganui.  He clearly admired them for the fact that they had dedicated themselves to the ideals and way of life which they had embraced.  By April 2008 it was clear to him that that the retreat as previously conceived would not be proceeding.  He was quite disenchanted with the plaintiff by this time and had earlier spoken to his solicitor in the same month about “her invading demeanour and how she has designs on [the retreat]”.

[106]   He did not seem to be vindictive to her as his diary note from 21 April 2008 indicates when he referred, apparently to a sermon he had recently heard, about:

Fr Julians talk about the sadness of regret that we don’t love someone more. Roz would grab that and apply it to me vis-a-vis her!.  All I can say is that I can’t have her grabbing control of  my environment…

[107]   Later in the same diary he noted:

I had an idea:

May be I could go to Wanganui and talk to Sr Michael about a bequest.   I’d better phone her.   May be that brave Dominican undertaking of hers isn’t getting off the ground.

[108]   In August of the same year he received a newsletter from the Dominican sisters at Wanganui.  On the 10th of that month he gave instructions to his solicitor in Auckland to prepare the will that benefited the Dominican sisters.

[109]   One notable aspect of the plaintiff’s claim is the absence of any indication of the person or persons who are supposed to have exerted undue influence on the deceased which led to the execution of the 2008 will.  This issue arose in Norton v
Carey.29

29	Norton v Carey HC Auckland M161/95, 1 July 1996 at 54.

[110]   The position is summarised in Equity and Trusts in New Zealand:30

Carey makes it clear that there need be no actual misuse of power by the defendant  at  all  in  procuring  the  transaction.     But  there  must  be  a relationship – usually pre-existing the transaction – that either causes or enables the transaction to proceed.

[111]   It is this last element which is entirely absent from the statement of claim.

[112]   The pleading of the grounds for setting aside the 2008 will commences with reference to a diary entry dated 7 August 2008 which records: 31

Mail.  A newsletter from the Dominican nuns in Wanganui.  Did I summon them up?

Sister Micala with the news (nerve?)  and a plea for funds.  The Habits –
material-so costly.

I must send some money.  There is a page of coloured photos of the sisters. Despite two who have given their life away they are getting postulants and N from other countries and now number 10.  God bless them.

[113]   Further on in the statement of claim32 it is pleaded:

86.       The  combination  of  the  deceased’  convent  delusion  and  facts pleaded in paragraph 83 hereof meant that the deceased was vulnerable to the request made by the Wanganui Convent as pleaded in paragraph 71 hereof, if it was the “trigger” for his last will, such as to constitute undue influence upon the deceased such as to invalidate the 2008 … Will.

[114]   The above references to the statement of claim set out the entire basis upon which the undue influence claim is brought with regard to the 2008 will.

[115]   It is clear from authority that any alleged undue influence must be referable to the relationships between specific persons. This is implicit, not just from decisions such as Carey, but from high authority such as the opinion of Lord Nicholls of Birkenhead in the Royal Bank of Scotland case where he said:

Equity identified broadly two forms of unacceptable conduct.   The first comprises overt acts of improper pressure or coercion such as unlawful threats.   Today there is much overlap with the principle of duress as this

30	Stephen Kós QC “Undue Influence”, above n 27 at 686.
31	At paragraph 83 of the statement of claim.
32	At paragraph 86.

principle has subsequently developed.   The second form arises out of a relationship between two persons where one has acquired over another are measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage.33

[116]   Before there could be questions of undue influence that fall within the second of Lord Nicholls’ two categories, the plaintiff would need to outline a case which contained the essential element of a relationship that gave an ascendant person an influence over the other.  Identification of who the person or persons were and the aspects of the relationship which led to the subordinate party placing trust or confidence in the other party are pre-requisites of a viable case.  There is no pleading that such a relationship existed between the deceased and the nuns generally, or the
representative of them.34    The statement of claim pleads nothing more than that the

deceased received a newsletter from the Dominican sisters which seems to have included a request for donations.  I accept that it is implicit in the diary entry which was quoted in the statement of claim that the newsletter and accompanying request did not come “out of the blue”.  The terms of the diary entry make it plain that the deceased already had knowledge of the Dominican nuns.  The case for the plaintiff appears to arise solely from the fact that an order of nuns for which the deceased had a warm regard, asked him for a donation.

[117]   But there is no pleading of a relationship between the deceased and  the members of the religious order which had the necessary characteristics to give rise to undue influence by the latter over the former.35

[118]   Once it is acknowledged that there is no relationship which is identified as being productive of undue influence, all that is left is the alleged circumstance that the deceased suffered from a “convent delusion”.   However the only possible relevance that such a circumstance could have is that it in the context of an undue influence claim, it may have rendered what was otherwise an innocuous situation into  one  which  was  objectionable  by  reason  of  a  particular  sensitivity  to  the influence arising out of the deceased’s alleged “convent delusion”.  But that is not
the way that the plaintiff pleads her claim.

33	At paragraph 8.
34	Huguenin v Baseley (1807) 14 Ves 273.
35	Allcard v Skinner [1875] 36 ChD 145, 171.

[119]   The presence of the alleged delusion cannot supply the missing elements that the plaintiff would have been required to plead and to prove if she were to succeed in a claim that the 2008 will was not the product of the exercise of free will on the part of the deceased.

[120]   The only other way in which the “convent delusion” could have had any imaginable relevance to the 2008 will arrangements was that it showed Mr Kendall lacked testamentary capacity – a claim which the plaintiff has disavowed.

[121]   This is not a case where the plaintiff is assisted by the principle that for the purposes of strike out applications, allegations of fact in a statement of claim are normally to be regarded as capable of proof at trial.   The pleading in this case altogether lacks a pleading of the facts which would be the necessary foundation of an undue influence claim.

[122]   I have also given consideration to the question of whether the plaintiff might be able to amend the pleading to overcome the problems that I have noted above.  If that is a possibility then the plaintiff should be given the opportunity to do so.  I do not however consider that in the circumstances of the present case amendment is a reasonable possibility.   I say that because the plaintiff did not put forward any alternative suggested pleading in the course of argument before me.  There was no assertion on the part of the plaintiff that her case was to be amended.  That would seem to reflect a tacit acceptance that there is no other evidence which the plaintiff could rely upon as a platform for attacking the decision-making process which led to the deceased executing his 2008 will.   The proceeding was commenced in 2013. The plaintiff has had the opportunity to amend her statement of claim.   It can be assumed that the plaintiff’s advisers have on her behalf put forward the best case that she is able to make in relation to the 2009 will.

[123]   Nor is this a case where the substantial outlines of a viable cause of action have been disclosed in the existing pleading which could be later elaborated by further particulars to be provided after discovery and other interlocutory steps have taken place.

[124]   It  is my view the pleading of undue influence relating to the 2008  will discloses no reasonably arguable cause of action and therefore ought to be struck out.  There will be an order accordingly.

The 2009 will – undue influence

[125]   Much of the background discussed in relation to the 2008 will has relevance to the circumstances in which the deceased executed the 2009 will.

[126]   It is necessary to set out the detailed grounds that were put forward for this cause of action in the statement of claim:

(a)       Lady Wilkins had assumed a position of care over the deceased such that it placed Lady Wilkins akin to a fiduciary relationship with the deceased;

(b)       due to the age and infirmities of the deceased, Lady Wilkins had an ascendancy over the deceased;

(c)	the request made by Lady Wilkins to the deceased evidenced by the
deceased’s diary entry for 29 September 2009 as pleaded in paragraph
78 hereof; to change his will to leave the Whangaehu property to
Lady Wilkins;

(d)       the attraction for an dependency upon Lady Wilkins to ensure that Lady Wilkins would live with the deceased and would be throwing in her lot with the deceased in the deceased’s convent delusion.

(e)       the  involvement  of  Lady  Wilkins  in  driving  the  deceased  to  the solicitors in Masterton, Logan Gold Walsh, on 2 October 2009, to make his last Will;

(f)        the disposition of the entire estate of the deceased to Lady Wilkins, whose association with the deceased had been comparatively limited at 12 October 2009 and, at its highest, was a “friend” who was about to throw her lot in with the deceased as the deceased portrayed Lady Wilkins in his final will instructions to Mr. Logan on 2 October 2009 as pleaded in paragraph 81.

(g)       the love and dependency upon  Lady Wilkins to ensure that  Lady Wilkins threw in her lot with the deceased in the deceased’s convent delusion.

(h)	the deceased’s convent delusion.

[127]   Three questions need to be answered:

a)	whether  Lady  Helen  Wilkins  was  in  a  position  of  confidence  in relation to the deceased;

b)        whether the deceased acted under that influence when executing the

2009 will; and

c)        whether that influence was “undue”.

[128]   In  the  first  place,  the  relationship  of  confidence  is  focused  upon  the relationship of de facto husband and wife that existed between the deceased and Lady Helen Wilkins.  Just as with the relationship between husbands and wives of any kind,36  such a relationship is not presumed to give rise to a relationship of confidence.

[129]   Attention therefore has to be focused upon the factual circumstances that might be supposed to have led to a relationship of confidence existing between the parties and which was operative and influential on the deceased when executing his last will.

[130]   The facts upon which the plaintiff apparently relies are that Lady Wilkins was in a de facto relationship with him at the time he made his last will, that she was the will’s beneficiary and that she may have requested the making of the will.

[131]   Mr Finnigan placed considerable stress on a diary entry dated 29 September

2009, the month before the will was signed.  It states:

Helen said she was nervous of Roz!   I told her she had no claim to this house.  I said I’d make a new will leaving Whangaehu to her. “What about the nuns?”  That dream she had a few days/nights ago.  I said that have no claim either and anyway - shed be the boss! I’ll go tomorrow to Bruce Logan and make another will leaving Whangaehu to Helen. She’s put spiritual physical energy into the dear old place-and she needs to have it to live in. The Lady Abbess.

36	At [85] above.

[132]   I consider that it is arguable that based upon this evidence Lady Wilkins did raise the question of her security of residence at the Whangaehu property.  The diary note seems to indicate that the deceased understood that she had a concern which he sought to allay by telling her that he would sign a new will.  The new will can only have been one which would leave the property to her.

[133]   Three  days  after  the  events  described  in  the  diary  the  deceased  gave instructions for the new will.

[134]   I am not required to review the merits of the claim based upon the undue influence which Lady Wilkins allegedly brought to bear.  Because the matter cannot be dealt with on a summary judgment basis, the Court is restricted to considering the strike out application.

[135]   My conclusion is that unlike the position with the 2008 will, the pleading of the undue influence in relation to the 2009 will is sufficient to pass muster and it should not be struck out as disclosing no reasonable cause of action.37

[136]   I have already considered the alternative ground for strike out in relation to the testamentary promises claim which is essentially that the proceeding represents part of a course of conduct on the part of the plaintiff to use the proceedings for purposes which are not apt.  I considered the arguments in the context of the strike out application in relation to the 2008 will.  There is no need to repeat what I then said.  In my view the strike out application in relation to the cause of action based upon the 2009 will ought not to be granted on grounds that it discloses no reasonably arguable cause of action.   The application is however adjourned for further consideration in relation to the 2009 will so that the question of whether the plaintiff intends to remedy the defects in the pleading – that is the prolixity and pleading of
evidence – are to be attempted.

37 High Court Rules, r 15.1.

Result

[137]   There will be an order striking out the cause of action based upon undue influence relating to the 2008 will.  The strike out application in regard to the 2009 will is adjourned to the next mention which is referred to in the following paragraph.

[138]   No doubt the plaintiff will wish to consider the effect of the order made in regard to the 2008 will before deciding what if any further steps she wishes to take in the proceeding.  If the proceeding is to continue, I would expect to hear from counsel for the plaintiff concerning the strike out application based upon defects in the pleading of the other causes of action.   If the plaintiff intends to file an amended statement of claim to address the defects in the present pleading, she is to do so within 21 days of today’s date.  The registrar is to list this matter in the Chambers list for June 2014 at which point the parties will be heard on the remaining aspects of
the strike out application in relation to the 2009 will and also on the matter of costs.

J.P. Doogue
Associate Judge