ESTATE OF HENRY SOLE [2023] NZHC 2537

ESTATE OF HENRY SOLE [2023] NZHC 2537

On the balance of probabilities the Court was satisfied that the testator had requisite testamentary capacity when executing the 27 January 2011 will because contemporaneous, on‑the‑spot notes and testimony of the will preparer (Mr F) demonstrating careful considered instructions, combined with evidence the testator's schizophrenia was medicated and he was managing in the community, outweighed the inconclusive retrospective medical opinions; accordingly probate in solemn form was granted for the 27 January 2011 will.

Citation
[2023] NZHC 2537
Parties
Applicant/executor: Public Trust; Deceased/testator: Henry Melvyn Sole; Beneficiary: Ngaire Claridge
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 August 2023
Procedural Posture
Originating Application for Grant of Probate / Judgment Following Hearing of Originating Application (probate in Solemn Form)
Outcome
Grant of probate in solemn form in respect of the will dated 27 January 2011
Legal Topics
Testamentary Capacity, Grant of Probate in Solemn Form, Administration Act 1969
Probate Wills and Succession Mental Capacity Law Testamentary Capacity Grant of Probate in Solemn Form Administration Act 1969

Case Brief

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Parties

Public Trust

Applicant/executor

Henry Melvyn Sole

Deceased/testator

Ngaire Claridge

Beneficiary

Procedural Posture

Originating Application for Grant of Probate / Judgment Following Hearing of Originating Application (probate in Solemn Form)

Legal Issues

  1. 1 Whether the testator had testamentary capacity when executing the will dated 27 January 2011
  2. 2 Whether retrospective medical evidence and contemporaneous witness notes sufficiently establish or rebut capacity
  3. 3 Whether probate in solemn form should be granted despite concerns raised about capacity

Ratio Decidendi

On the balance of probabilities the Court was satisfied that the testator had requisite testamentary capacity when executing the 27 January 2011 will because contemporaneous, on‑the‑spot notes and testimony of the will preparer (Mr F) demonstrating careful considered instructions, combined with evidence the testator's schizophrenia was medicated and he was managing in the community, outweighed the inconclusive retrospective medical opinions; accordingly probate in solemn form was granted for the 27 January 2011 will.

Court Disposition

Grant of probate in solemn form in respect of the will dated 27 January 2011

Orders

  • Probate in solemn form granted for the will dated 27 January 2011
  • The reasonable costs of the executor in bringing the application are to be paid from the estate