HOOGEVEEN V PUBLIC TRUST HC AK CIV 2007-404-004300

HOOGEVEEN V PUBLIC TRUST HC AK CIV 2007-404-004300 1 August 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-004300UNDER The Administration Act 1969 IN THE MATTER OF an application for recall of probate in respect of the will of the late CHRISTINE MARIE HOOGEVEEN BETWEEN BERTHA MARIA WILHELMINA HOOGEVEEN, NATASHA MAREE HOOGEVEEN AND MAARTYN NICHOLAAS HOOGEVEEN Plaintiffs AND PUBLIC TRUST Defendant Hearing: 28 July 2008 Appearances: D J Jenkin for Plaintiffs S J McCarthy for Defendant Judgment: 1 August 2008JUDGMENT OF KEANE JThis judgment was delivered by Justice Keane on 1 August 2008 at 4pm pursuant to Rule540(4) of the High Court Rules.Registrar/ Deputy Registrar Date:Solicitors: Von Sturmer Ringer, Waiuku for Plaintiffs G Traves, The Public Trust, Level 3/218 Manchester Street, Christchurch[1] On 21 September 2005 Christine Hoogeveen, aged 40, who had suffered throughout her life from severe depression and who had attempted more than once to take her own life, died by her own hand, and there remain issues still as to how her estate is to be distributed, the most significant of which arises on this application. [2] During her lifetime Christine made two wills, the first on 6 November 1984, when she was 19, in which she named her niece Natasha, aged 22 months, and her nephew Maartyn, aged nine months, then her only nieces and nephews, her principal beneficiaries. [3] On 19 March 1997 Christine executed a second will reflecting instructions she had given on 11 September 1996 six months before. Her then partner was Andrew Robinson and in her will, she recorded, she contemplated marrying him. She made him her sole primary beneficiary. If he died before her, she provided, her estate was to be divided between her parents and brothers and sisters. [4] Christine never married Andrew Robinson. They parted in 2001. She began living with Kevin Middleton. They were to marry in 2005 on a date shortly after the date on which she took her own life. [5] The Public Trust, as executor of the 1997 will, obtained probate on 2 November 2005 but has not distributed the estate. Kevin Middleton has claimed in the District Court Act all or some part as relationship property. He has claimed also to have been inadequately provided for, and a testamentary promise. Andrew Robinson has not disclaimed his interest as sole primary beneficiary. That claim awaits the outcome of this present application. [6] On this application Christine's mother, Bertha Hoogeveen, and the 1984 beneficiaries, Natasha and Maartyn, seek to have probate under the 1997 will recalled. Christine, they contend, as does her whole family, was not on the two dates critical of sound mind. She lacked testamentary capacity. That is the only issue I am to resolve. The second point taken, that the 1997 will was not duly executed, will only arise if I find that Christine did have testamentary capacity.[7] As executor and trustee of Christine's 1984 as well as 1997 will, the Public Trust does not seek to assert that she made the later will with testamentary capacity. If probate as to that will is recalled, the Public Trust will retain stewardship on a fresh grant of probate under the earlier will. It would wish to be heard should the question whether the 1997 will was duly executed ever arise. [8] The defence of the 1997 will lies with Andrew Robinson as sole primary beneficiary. But apart from asserting at the first case conference in September 2007 that Christine then retained testamentary capacity, he has done nothing. He did not, as he was obliged to, file a statement of defence by January this year. An application then made to debar him was held over to the fixture. It became unnecessary. Though he had been served with all papers and given notice of the fixture, neither he nor any counsel appeared. [9] The result is that the question I have to resolve has narrowed to whether there is a tenable issue whether, when Christine issued instructions for and executed the 1997 will, she had testamentary capacity. If I am satisfied that there is an issue of that order, then in the absence of a proponent to the balance of probabilities that Christine had capacity, I must order the recall of probate; and, if I am able on this application, grant probate in respect of the 1984 will. [10] I should also add this. In seeking to have the 1997 will set aside, in order to restore the 1984 will, Christine's mother and Natasha and Maartyn intend, after Kevin Middleton's claim is either agreed or resolved, that all Christine's nieces and nephews share equally in the estate remaining.Testamentary capacity[11] Jurisdiction for the grant of the orders applied for is not in issue. That lies under s 5(1) of the Administration Act 1969 and HCR 650. [12] Nor can there be any issue as to the principles of law applying, when an issue of testamentary capacity is raised. They are set out in Bishop v O'Dea (1999) 18 FRNZ 492 CA, where Tipping J, for the Court, said this, at 493, paras [3] – [7]:[3] In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity [4] If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have testamentary capacity rests on those who seek probate of the will [5] That onus must be discharged on the balance of probabilities: Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity. [6] In order to establish capacity, when in issue, those seeking probate must demonstrate the maker of the will had sufficient understanding of three things: (a) that he or she was making a will and the effect of doing so ; (b) the extent of the property being disposed of; and (c) the moral claims to which he or she ought to give effect when making the testamentary dispositions. [7] If incapacity before the making of the will has been established, those seeking probate must show the will was made after recovery or during a lucid interval. In such a case the will is regarded with particular distrust and there is, in the first instance, a strong presumption against it, particularly if it displays lack of moral responsibility in the nature of the dispositions: [13] I need also to add, because six months separates the dates on which instructions were given and the will executed, that the need for capacity on the former date is primary and indispensable. If instructions are given with capacity, it has been held, a will may be valid even if it is less certain that the maker retained as complete a capacity when it was executed: Parker v Felgate (1883) 8 PD 171; Re Esche (dec'd), (Estate of) HC WN 23 April 1996 Heron J; Re Moresby (dec'd) Estate of: Cosgrave v Moresby HC AK M No. 256/86, 15 June 1988. [14] In Parker v Felgate Sir James Hannan said that when instructions are given with capacity and the will reflects the instructions: all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far: I gave my solicitor instructions to prepare a will making a certain disposition of my property; I have no doubtthat he has given effect to my intention and I accept the document which is put before me as carrying it out.Turbulent six months[15] The six months lying between the date on which Christine gave instructions, 11 September 1996, and the date on which she executed the will, 13 March 1997, proved to be highly turbulent for her and that is the first basis on which the family say she lacked testamentary capacity on the two dates. [16] In June 1996, three months before Christine gave the instructions now challenged, she and her then partner, Andrew Robinson, moved from Taranaki to the north of Auckland to share milk on a dairy farm near Ahipara. There a circular letter, sent out by the Public Trust, caught up with her. She was invited to review her 1984 will. She replied confirming that she wished to. She gave her name and address. [17] On 11 September 1996, at the Ahipara farm, Tracy Tobin, then a trust officer with the Public Trustee, took Christine's fresh instructions. Mr Robinson was present. Mrs Tobin recalls that he and the farmer were at odds and he was upset. That was distracting. According to the instructions Mrs Tobin then took, Christine described Mr Robinson as her fiancé whom she intended to marry. She wanted him to be her sole primary beneficiary. Her parents and brothers and sisters were only to take if he died before her. [18] Within two days, Mrs Tobin, by then back in Whangarei, prepared a new will on those instructions. But she cannot now recall why six months then passed, nor how it came to be that she and Christine arranged when and where the new will was to be executed. She thinks, I understand her to say, that it is more likely that she contacted Christine than Christine her; and if that is so it is unsurprising. [19] On 23 September 1996, within 12 days of giving Mrs Tobin instructions, Christine attempted suicide by taking weed killer. She was admitted to Kaitaia Hospital. Five days later, on 28 September, she was discharged into the care of Mr Robinson. On 11 October she made a second attempt. She stabbed herself and slashed her wrists. Again admitted to Kaitaia Hospital, she was transferred toWhangarei Hospital where she was diagnosed to be suffering from a major depression. On 11 November 1996, yet again, she was discharged into Mr Robinson's care. [20] On 16 December 1996 Christine's father, Martinus Hoogeveen, died unexpectedly, aged 61, of a heart attack. Christine joined the other members of the family at her father's funeral on 19 December 1996. That day, after the funeral, her mother gathered them together. She explained that she retained a life interest in the family's two farms but that they would share equally after her death. [21] On 23 - 24 December 1996 Christine returned to Kaitaia. She was still very much affected by her father's death when, on Anniversary Weekend, or Waitangi Weekend, 1997, she and a friend, Kathy Briggs, visited the cemetery in which their fathers were buried. Mrs Briggs had visited her while she was in Whangarei Hospital and was acutely aware of how vulnerable she had been and still was. Christine, she said, spoke of how fond she had been of her father and how much she missed him. [22] Also then unsettling was that Christine had attempted to open a second hand shop in Kaitaia selling second hand clothes, only to have to close it, and Mr Robinson's share milking agreement had been terminated. They were going to have to move. Against that unconducive background Christine executed her second will on 19 March 1997 at the Lotto shop, Mitre 10, Kaitaia, where she had recently begun to work. [23] Whether Christine executed the will duly, in a formal sense, may not be presently in issue. But the context must have been highly distracting. She executed it, so it seems, at the shop counter, witnessed by Mrs Tobin and the woman in charge, Mrs Eales, at a busy time, in the midst of a renovation. That in itself raises a question whether she was intent on making any conscious reappraisal of her instructions six months before, or was able to do so, or began to be able to understand how important that was.Capacity when giving instructions[24] The first reason advanced to question whether Christine had testamentary capacity on 11 September 1996, when she gave Mrs Tobin instructions, lies in some obvious inaccuracies in the instructions given. [25] Christine was intelligent. She had been the dux of her school, and she had held a demanding position in Australia. She was particular, and could be pedantic. Yet in the instructions that she gave Mrs Tobin she either misspelt herself, or tolerated Mrs Tobin misspelling, the names of members of her family. That her mother finds highly surprising. [26] Secondly, Christine, though she was then living with Mr Robinson and continued to do so until 2001, had never, her family says, disclosed that she and Mr Robinson were engaged. Mrs Briggs, in whom she then confided, confirms this. She thought, when she visited Christine in hospital after the second suicide attempt in 1996, that Christine was frightened of Mr Robinson. It troubled her that Christine was discharged into his care. Nor, in early 1997, did Christine mention any engagement when they confided in each other at their fathers' gravesides. [27] Thirdly, of as much surprise to Christine's mother, and her family, is that in the instructions Christine gave to Mrs Tobin she left out of account her nieces and nephews, of whom there were by then a number, and with whom she was very close. Instead she elected, if Mr Robinson died before her, to leave her estate to her parents and brothers and sisters. That is inexplicably inconsistent with the will she made in 1984. [28] Finally, whether Christine had testamentary capacity is most thrown into question, her family say, by her determined attempts to end her life so soon afterwards. She, they consider, must have been as depressed when she gave Mrs Tobin instructions and this must have affected her capacity to appreciate what she was doing and how significant it was.[29] That concern has the support of Ian Goodwin, a specialist consultant psychiatrist, who has reviewed Christine's clinical notes reaching back to the first occasion on which she received care for depression in 1992 after returning from Australia. [30] Those notes disclose that Christine received in-patient care on three occasions: in 1992 at Ashburn Hall, Dunedin; in 1995 in Taranaki; and finally, in 1996 in Kaitaia and Whangarei as I have described. But even when in the community, the notes also show, Christine received constant out-patient care. In October 1996, after she made her second suicide attempt that year the psychiatrist then responsible thought her one of the most depressed people he had ever seen. [31] During 1996, Dr Goodwin is clear, Christine is likely to have been in the grip of severe depression, culminating in but not confined to her two suicide attempts. On the day she gave Mrs Tobin instructions, he considers, her ability to weigh moral claims on her estate might well, in particular, have been compromised. [32] There is nothing to explain, Dr Goodwin says, why Christine chose to make a new will in September 1996 but he offers this hypothesis:It seems probable that given her severe state of depression at the time and perhaps her preoccupation with suicidal ideas, and in response to the circular letter from the Public Trust prompting a review of her will, that she mechanically followed the procedure pursued by the Public Trust to make a new will, which led to her giving 'instructions' in the presence of Mr Robinson. It also must be noted that (she) attempted suicide soon after giving these instructions (23rd September 1996). It is possible that given the extent of her suicidal ideation (which persisted considerably beyond the 23rd September) the making of a will may simply have been part of her intense desire to die. Having made a will (without due regard for its content) may have at some level assisted her to make a decision to kill herself.[33] That hypothesis, when set against the oddities in the instructions that Christine gave to Mrs Tobin, leads Dr Goodwin to conclude that in all likelihood at the date Christine gave those instructions she lacked testamentary capacity.Capacity on execution of will[34] The reasons the family advance to question Christine's capacity when she executed the will on 19 March 1997, six months after the instructions she gave, begin with a question – on whose initiative was that? [35] The evidence as a whole, the family says, makes it most likely that Mrs Tobin took the initiative and Christine merely acceded. That is consistent with the will having been executed, as it was, at the Lotto shop counter in Mitre 10, Kaitaia. More significantly, it points to the issue that is truly troubling. Did Christine even begin that day to appreciate the significance of what she was doing? Could she? [36] The will Christine executed, without apparently understanding it, was no longer true to reality. As she was all too aware, her father had died. Yet, consistent with her instructions six months before, he remained named one of the class to take if Mr Robinson died before her. That startling incongruity, her family considers, is inexplicable. [37] Christine cannot, her family contends, have reviewed her will, against the instructions she gave, with the conscious attention that required and in all probability she was incapable of doing so. The will was not merely obviously incorrect. The death of her father carried a consequence for her, as testator, that could not have been more material. [38] When Christine had given Mrs Tobin instructions six months before, she had few personal possessions to pass to anybody, whether Mr Robinson or her nieces and nephews. But when she executed her will her estate had enlarged to an altogether different order. As a result of her father's death she was eventually to share with her brothers and sisters in an estate comprising two fully equipped debt free farms. Had she been capable of understanding that, she would, her family say, never have left Mr Robinson her sole primary beneficiary. [39] These are cogent reasons, Dr Goodwin considers also, though nothing exact is known about Christine's mental and emotional state in March 1997, to questionwhether she then had testamentary capacity. Her life remained unsettled. Apart from the loss of her father, her business venture had failed and Mr Robinson's sharemilking appointment had come to an end. They had to find somewhere else to live. Their relationship may have been troubled. Christine may have signed the will mechanically incapable of bringing to it anything like the conscious attention essential.Conclusion[40] When Christine was well, or relatively so, it is clear, she was able to make informed choices. She was able to hold down a demanding job and she was careful about matters of detail. It is equally clear that from at least 1992 onwards, she was more often than not in the grip of a disabling, often severe, depression, even when she seemed most stable and content; and no more pointedly than during her years with Mr Middleton. She ended her life just as they were to be married. [41] There is no suggestion that even when her illness was most extreme she became psychotic and lost the ability to understand the nature and quality of her acts. Or any that when she gave Mrs Tobin instructions and executed her will she was unable - in the abstract - to understand the one and the other. But when she was severely unwell, as I am satisfied she was during the six months in question, her illness appears to have rendered her incapable of understanding in real terms what she was about. [42] The attempts Christine made on her life so soon after she gave Mrs Tobin instructions in September 1996, were so determined, and her depressive state so deep seated that there has to be a real question whether she had been able so shortly before to assess the moral claims on her estate, most especially those of her nieces and nephews, to whom she had earlier given complete priority. There is reason to question also whether, even though she and Mr Robinson did not part until 2001, she did see him as her fiancé and did contemplate marrying him. [43] That apart, there has to be a question whether when Christine executed the will in March 1997, she gave any thought at all, or was capable of giving anythought, to how far her estate had enlarged and how much that altered the moral calculus. In holding to the instructions she had given six months earlier, she accorded to Mr Robinson a right to share in her parents' property, to which her brothers and sisters, and her nieces and nephews, had an overwhelming claim. He had none. [44] There is then a more than tenable issue, I consider, whether Christine had testamentary capacity on either critical date and, in the absence of evidence showing to the balance of probabilities that she did have capacity, probate must under the 1997 will be recalled. I so order. The result is that Christine's 1984 will now stands unrevoked. There is no issue as to its validity. If I am able in these proceedings, without any formal application, to grant the Public Trustee probate under that will, I make that further order. [45] The result in the District Court proceedings is that Mr Middleton's claim will have to be resolved against the 1984 will, not the 1997 will. Mr Robinson will no longer have standing in those proceedings as a beneficiary. Whether he will wish to make any independent claim he will have to consider. In these proceedings no order for costs is applied for and none seems to me to be warranted. Costs will lie where they fall. _____________ P.J. Keane J