Dodssuweit v Olivier [2019] NZHC 1226

Dodssuweit v Olivier [2019] NZHC 1226

On the balance of probabilities the court found the deceased had the requisite testamentary capacity and capacity to enter the challenged gifting transactions in May 2017. The contemporaneous medical records, treating clinicians' assessments, objective context (including longstanding testamentary intention to favour the second daughter), explanations for apparently aberrant behaviour, the absence of reliable evidence of delirium at the relevant times, and credible legal advice given on instructions collectively established capacity. Consequently the unconscionability claim also failed.

Citation
[2019] NZHC 1226
Parties
Plaintiff: Cornelia Dodssuweit; Plaintiff: Stephan Dodssuweit; First Defendant: Kevin Norman Olivier; Second Defendant: Bettina Dodssuweit; Third Defendant: KM Dod Trustees Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 May 2019
Procedural Posture
Estate/probate Litigation (capacity and Unconscionable Transactions) / Judgment Delivered After Trial
Outcome
Plaintiffs' claims dismissed
Legal Topics
Testamentary Capacity, Inter Vivos Gifts, Enduring Power of Attorney, Mental Health (compulsory Assessment and Treatment) Act 1992, Professional Legal Advice, Family Dynamics in Succession
Wills and Estates Capacity Assessment Mental Health Law Unconscionable Transactions Trusts Property Transfers Testamentary Capacity Inter Vivos Gifts +4 more

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Parties

Cornelia Dodssuweit

Plaintiff

Stephan Dodssuweit

Plaintiff

Kevin Norman Olivier

First Defendant

Bettina Dodssuweit

Second Defendant

KM Dod Trustees Limited

Third Defendant

Procedural Posture

Estate/probate Litigation (capacity and Unconscionable Transactions) / Judgment Delivered After Trial

Legal Issues

  1. 1 Whether deceased had testamentary capacity when executing 19 May 2017 will
  2. 2 Whether deceased had capacity to enter inter vivos gifting transactions in May 2017
  3. 3 Whether gifting transactions were unconscionable and should be set aside

Ratio Decidendi

On the balance of probabilities the court found the deceased had the requisite testamentary capacity and capacity to enter the challenged gifting transactions in May 2017. The contemporaneous medical records, treating clinicians' assessments, objective context (including longstanding testamentary intention to favour the second daughter), explanations for apparently aberrant behaviour, the absence of reliable evidence of delirium at the relevant times, and credible legal advice given on instructions collectively established capacity. Consequently the unconscionability claim also failed.

Court Disposition

Plaintiffs' claims dismissed

Orders

  • Plaintiffs' claims dismissed
  • Costs to follow the event on a scale 2B basis unless agreed