ESTATE OF TURK [2020] NZHC 1495

ESTATE OF TURK [2020] NZHC 1495

Caveator raised sufficient doubt about the deceased's testamentary capacity based on consistency of prior wills, medical notes indicating cognitive impairment after 2008, contemporaneous reports of decline around 2014–2015, and the inadequacy of the three-line GP certificate; accordingly the order nisi should not be made absolute and the executors must apply for probate in solemn form with full medical disclosure.

Citation
[2020] NZHC 1495
Parties
Applicant (executor): Gerardus Johannes Turk; Applicant (executor): Jacqueline Robinson; Caveator: Ronald Adrianus Turk
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 June 2020
Procedural Posture
Probate Dispute Under Administration Act 1969 S61 / Show Cause Hearing on Order Nisi; Ordered That Application for Probate Be Made in Solemn Form
Outcome
Caveator succeeded on show cause; order nisi not made absolute; executors directed to apply for probate in solemn form and an inquiry hearing to be scheduled
Legal Topics
Testamentary Capacity, Caveat Under S61 Administration Act 1969, Order Nisi, Probate in Solemn Form, Disclosure of Medical Records
Probate Succession Estate Administration Medical Capacity Law Civil Procedure Testamentary Capacity Caveat Under S61 Administration Act 1969 Order Nisi +2 more

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Parties

Gerardus Johannes Turk

Applicant (executor)

Jacqueline Robinson

Applicant (executor)

Ronald Adrianus Turk

Caveator

Procedural Posture

Probate Dispute Under Administration Act 1969 S61 / Show Cause Hearing on Order Nisi; Ordered That Application for Probate Be Made in Solemn Form

Legal Issues

  1. 1 Whether the caveator has raised sufficient grounds to show cause to prevent the order nisi being made absolute
  2. 2 Whether the deceased possessed testamentary capacity when executing the 23 December 2014 will
  3. 3 Whether further medical records and a full inquiry into capacity are required

Ratio Decidendi

Caveator raised sufficient doubt about the deceased's testamentary capacity based on consistency of prior wills, medical notes indicating cognitive impairment after 2008, contemporaneous reports of decline around 2014–2015, and the inadequacy of the three-line GP certificate; accordingly the order nisi should not be made absolute and the executors must apply for probate in solemn form with full medical disclosure.

Court Disposition

Caveator succeeded on show cause; order nisi not made absolute; executors directed to apply for probate in solemn form and an inquiry hearing to be scheduled

Orders

  • Executors to make application for probate in solemn form under s61(d)(ii) of the Administration Act 1969
  • All medical records relating to the deceased (including mental health and capacity assessments) to be obtained and disclosed before the further hearing