Re estate COUSINS [2021] NZHC 552

Re estate COUSINS [2021] NZHC 552 [18 February 2021]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2020-409-000364[2021] NZHC 552UNDER Section 14 of the Wills Act 2007IN THE MATTER of an application by HELEN IRENEDAVIDSON for an order that a document bedeclared the valid Will of the deceasedJANICE LEE COUSINSHearing: 1 February 2021Appearances: J C D Guest for ApplicantR J Little for RespondentJudgment: 18 February 2021JUDGMENT OF DOOGUE JThis judgment was delivered by me on 18 February 2021 at 4.00 pm pursuant toRule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The applicant, Helen Irene Davidson, (Ms Davidson) a lawyer practising inDunedin, seeks a declaration pursuant to s 14 of the Wills Act 2007 (the Act) declaringa document to be the valid will of her deceased client Janice Lee Cousins (Jan).[2] The document which Ms Davidson seeks to have validated as Jan's will is adraft will prepared by her. Ms Davidson brings her application on the basis that Janhad the testamentary capacity to make a will and had an immediate and unconditionalintention that her estate should be distributed in the manner provided for in the draftwill.[3] The respondents, who are members of Jan's family, say that there is a completeabsence of evidence establishing that the draft represents Jan's actual testamentaryintentions, and equally fundamentally that she lacked testamentary capacity to make awill in any event.[4] An additional factor in this case is that the respondents raise serious questionsconcerning Ms Davidson's legal craft and her propriety. They lack completeconfidence that the draft will accurately reflects Jan's instructions. They say it is inwhole or in part a fabrication by Ms Davidson.Background[5] Jan died at Christchurch, New Zealand on or about 2 October 2019. Jan didnot have a valid will when she died.[6] Jan was survived by two brothers, a sister, nephews and a niece.[7] Jan and her siblings grew up in Dunedin and moved to Nelson when Jan wasabout 15. Soon thereafter Jan left home to study psychotherapy. Eventually shemoved to London and practised as a professionally qualified child psychotherapist.[8] Towards the end of her career she developed Parkinson's disease. She ceasedpractice and returned to New Zealand in 2013. She stayed with her brother, Blair, inBluff for two or three months immediately following her return and then settled inDunedin.[9] She moved from Dunedin to an "over 55's village" (the village) in Christchurchonly a matter of weeks before her unexpected death.[10] Jan engaged Ms Davidson as her solicitor in respect of her conveyancing andpersonal affairs in 2017. In 2019 Ms Davidson attended to the conveyancing on thesale of Jan's home in Dunedin and the purchase of her unit at the village inChristchurch. Jan and Ms Davidson dealt with one another on these matters on manyoccasions throughout 2019.[11] In or around March 2019 Ms Davidson and Jan commenced discussions aboutthe need for Jan to consider signing an enduring power of attorney and givingMs Davidson her instructions on a will.[12] The first draft will was prepared based on Jan's initial instructions. Under thatdraft will she left her entire estate to two charities, Médecins Sans Frontières andAmnesty International (the charities) and she made no provision for her survivingfamily members.[13] Between March 2019 and June 2019 Ms Davidson moved law firms. She didnot take her file concerning Jan's will with her. In or around June 2019 an enduringpower of attorney was prepared and executed by Jan. Jan appointed Ms Davidson herattorney.[14] In or around July/August 2019 Jan renewed her instructions concerning thedraft will. After further discussions with Ms Davidson Jan changed her instructionsand told Ms Davidson to make provision for her family in the sum of $100,000. Theresidue was to be divided between the charities.[15] On 17 September 2019 Ms Davidson met with Jan at her home in Dunedin.Jan read the draft will and confirmed her instructions. It was agreed between Jan andMs Davidson that Ms Davidson would attend upon Jan at her new home inChristchurch to have the will executed. This was to have occurred on 24 October2019.The application[16] In summary, the application to validate the draft will prepared by Ms Davidsonis based on it being a written record of Jan's testamentary intentions communicated byher to Ms Davidson in the course of Ms Davidson managing Jan's personal affairs,including the preparation and execution of an enduring power of attorney andconveyancing on the sale and purchase of realty, and against the background of anagreement between Jan and Ms Davidson as to when and how the draft will would beformally executed.[17] Section 14 of the Act provides as follows:14 High Court may declare will valid(1) This section applies to a document that(a) appears to be a will; and(b) does not comply with section 11; and(c) came into existence in or out of New Zealand.(2) The High Court may make an order declaring the document valid, if it issatisfied that the document expresses the deceased person's testamentaryintentions.(3) The court may consider(a) the document; and(b) evidence on the signing and witnessing of the document; and(c) evidence on the deceased person's testamentary intentions; and(d) evidence of statements made by the deceased person.[18] The Court is entitled to take a robust approach to the application of s 14.1 Inmaking the evaluation required by the section, the Court may consider both thedocument itself and evidence of statements made by the deceased person regardingtheir testamentary intentions.2[19] The onus is on Ms Davidson to prove on the balance of probabilities that thedocument tendered for validation appears to be a will and accurately expresses Jan'stestamentary intentions.3Respondent's concerns about Ms Davidson's legal craft and her propriety[20] Ms Davidson acknowledged in cross-examination that she had been censuredin 2012 by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal forhaving backdated a will. She said she had taken such action because: that was the result that the family wanted to achieve, and it was very muchat the last minute and it was the stupidest thing, one of the stupidest thingsI've ever done and I am not going to repeat it.[21] Ms Davidson also acknowledged that her legal craft had been called intoquestion in the case of Wilson & Ors v Davidson.4 In that case Ms Davidson hadadvised the testatrix when she made a will. In the will the testatrix made a gift of "myhouse unit at Chatsford to Robert Rutter".[22] The testatrix's nephews and nieces in that case contended the gift to Mr Rutterfailed because, under the testatrix's occupation right agreement with a retirementcompany, her rights of occupation of her unit were personal to her and could not betransferred. Ms Davidson applied for correction of the will, seeking the replacementof the words "my house unit at Chatsford" with the words "my occupation rights inmy house unit at Chatsford including any proceeds therefrom". Nation J corrected thewill because he was satisfied the testatrix wanted Mr Rutter to have the benefit of theunit.1 Re Estate of Feron [2012] NZHC 44, [2012] NZLR551 at [11] applying Re Estate of Murray HCMasterton CIV-2011-435-000178, 20 December 2011.2 Wills Act, s 14(3).3 Re Estate of Beaumont [2013] NZHC 2719 at [11] – [13].4 Wilson & Ors v Davidson [2016] NZHC 1238.[23] In her originating application in this case Ms Davidson said:2.6 the consent of all persons who may be potentially affected by the grantingof the order have consented to this application.[24] When cross-examined by Mr Little about this she said:Mr Little, if I remember rightly you, your clients had applied for letters ofadministration. I had filed a caveat and the caveat had to be sustained or notsustained. One way or the other your people could be assumed to haveapproved with my then application.[25] The statement in 2.6 of the originating application is not factually correct onits face. I do not consider Ms Davidson was dissembling when she wrote thatstatement. I accept Ms Davidson believed that others supported her bringing thisapplication so as to resolve the question of whether or not she could sustain the caveatshe had lodged. I do not think she was being dishonest, but rather that shemisapprehended the situation and hence the inaccuracy of the statement.[26] I must also observe that Ms Davidson's general approach to recording mattersis unusual. Her file notes are incomplete. Ms Davidson said in evidence that she doesnot always record all instructions taken over time from clients, particularly: not if it is a repeat conversation or I am on [my] feet getting somethingwitnessed.She relied a lot on her memory for recollecting the details of the conversations she hadhad with Jan.[27] Ms Davidson's notes are, when recorded, extremely brief. Her notesconcerning Jan's will instructions were intermingled with her file notes concerningJan's personal and conveyancing files in what can only be described as a somewhatchaotic style.[28] In summary, Ms Davidson has on one occasion been censured for falling belowthe requisite professional standards required of a lawyer and conveyancer, and on otheroccasions she has had a somewhat unconventional style of practice and an impreciseway of expressing herself. It is with these observations in mind and with appropriatecaution arising that I approach the necessary evaluative assessment in this case.Does the draft will reliably express Jan's testamentary intentions?[29] Ms Davidson's case is that, but for the allegation that Jan did not havetestamentary capacity, this Court would inevitably declare the draft to be a valid will.[30] Mr Little, for the respondents, submitted that the evidence falls well below thestandard required by the Court as cogent evidence of the deceased's intentions. Theysay there is no extraneous evidence that Jan:(a) wished to make a will and to appoint Ms Davidson as the executrix andtrustee and enable her to charge the estate for her professional services;(b) knew what her estate consisted of or who the potential claimants were;(c) wished to give exactly $100,000.00 to her family and leave the residueto charities; and(d) wished to be cremated and have her ashes scattered over Lake Wanaka.[31] Finally, Mr Little submitted that Jan had never confirmed the content of thedraft will as her final testamentary wishes.The Draft Will[32] Exception was taken by Mr Little to the document being described as a draftwill. It is difficult to conceive, in these particular circumstances, of it being describedany differently. By virtue of the professional relationship between Jan andMs Davidson, the nature of their dealings with one another, the subject matter of thosedealings and the form and appearance of the document it is precisely what it purportsto be, namely a draft will.[33] The draft will is on its face unremarkable. First, it contains the usual revocationclause. Second, it appoints Ms Davidson as executrix and trustee of Jan's estate. It isof course common for testators or testatrices to appoint a solicitor in this role,especially when there are no obvious contenders amongst family and friendsconsidered by the deceased to be able and willing to take on the role.[34] Also, unremarkably, the draft will provides that the executrix and trustee maycharge the estate for any professional services in connection with the estate. Thesubmission was made that this clause benefits Ms Davidson and that is what ismotivating her to bring this application. I reject that notion outright. Nothing in mymind gives me pause as to the propriety or otherwise of such a clause and itsimplications in this case. Nor is there anything which gives me pause for thoughtabout Ms Davidson's motivation in seeking to validate the will.[35] The draft will also has the usual clauses for the payment of debts and taxes.[36] The draft will contains the usual clause concerning disposal of the deceased'sbody, and in this case Jan wished to be cremated and have her ashes scattered overLake Wanaka.[37] Read as a whole, the document appears to be a will.[38] The truly controversial clauses in this case are first a gift of $100,000.00 to bedivided equally between Jan's niece, nephews, brothers and sister. The second is theclause providing the residue to be divided equally between the charities.How the draft will was created[39] Ms Davidson said in evidence that taking Jan's instructions for the draft willwas a protracted affair for two primary reasons. First, because Jan refused tocontemplate death and therefore didn't like talking about it. Ms Davidson did not wantto press Jan unduly as she discerned it exacerbated Jan's feelings of vulnerability onaccount of her Parkinson's disease. Second, she said she had trouble getting therequisite information from Jan, and she wanted to give Jan time to contemplate heradvice that there was a risk that her will would be contested if she left her entire estateto charity without any provision for family members.[40] At the outset of their engagement about the will Jan told Ms Davidson that shewished to leave her entire estate to the charities. A draft will was soon thereafterprepared on this basis.[41] Later, Ms Davidson advised Jan again that her will may be subject to attackshould she leave her entire estate to charities. As a result, Jan instructed Ms Davidsonto amend the draft will to include provision for the family to receive $100,000.00. MsDavidson recalled writing $100,000.00 on the typed draft will to reflect the change.[42] She described the process in evidence: but at some point, probably when I was working in the last firm that shewas convinced by me to put the family in, then there would have been anAsterix in the corner and I would have written at that level, at that point in thewill, that there was a bequest to the family of $100,000. And I recall sayingto her: "Anymore?" and she said: "No more", and I said: "That's not going tobe very much," I thought here was more nephews and nieces than thereactually are, I said: "that's not going to be very much." She said, "well, atoken," is what it, is what she intended at that point.[43] Ms Davidson then moved law firms and the draft will (being the prepared willwith the handwritten notation made by Ms Davidson) remained with her former firm.Ms Davidson said in evidence that she thought it had probably been shredded. Sufficeto say that she was unable to produce the initial draft will that had her handwrittenamendment and was not able to produce any written file note about this change.[44] Ms Davidson has some file notes of iterative conversations she had with Janconcerning her will after she moved to her present firm. These recorded that there wasa conversation between them on 13 May 2019. The file note records inter alia:needs an executor (can't find one).[45] On 17 May 2019 there is an extensive file note covering the reasons for Jan'sdecision not to leave her estate to her family and her perception that they had wrongedher. It records the lack of contact she had had with some family members. It is alsoapparent that on this occasion Ms Davidson had enquired if Jan would like to appointher nephew Mr Philip Cousins as her executor. Ms Davidson recorded Jan'sinstructions in this respect as "not ok". It also contains the notation:Explained role of Executors, role of Attorney, history of straight PoA[46] On 11 June 2019 Ms Davidson and Jan had a telephone conversation. The filenote recording that conversation is as follows:Me to re EPoA – discussWill reqd now27 June 2019 apptment noon?[47] The file note produced marking the commencement of the instructions atMs Davidson's new firm is sparse, but indicates it was opened on 26 June 2019 andthat Jan instructed Ms Davidson to draft an enduring power of attorney appointingMs Davidson as her attorney. It also records Jan was intending to give Ms Davidsoninstructions as to a will.[48] Ms Davidson and Jan met on 10 July 2019. On that occasion Ms Davidsonelicited details about Jan's siblings. They also discussed Jan's intention to go toChristchurch to live in the village. Jan also reiterated to Ms Davidson that she wantedto make provision for the charities.[49] Two weeks later, on 25 July 2019, Ms Davidson took details of Jan's assets inthe United Kingdom and further details about the family. Jan renewed her instructionsto provide the bulk of her estate to the charities. Jan also informed Ms Davidson thatshe had made an offer on a unit in the village. It is evident from the file that they alsodiscussed the sale of Jan's Dunedin home.[50] A month later, on 26 August 2019, Jan provided Ms Davidson with her reasonsfor not wanting to make greater provision for her family. Jan said that Phillip and hisfriend no longer came to visit her. She said that while her brother Blair had initiallykept in touch with her, he had since become ambivalent towards her. Jan said that hersister Robyn thought she was "doolally" and that was no basis on which to maintain arelationship. Finally, Jan told Ms Davidson that there had been some adverseinterference by a family friend called June Birchall.[51] During this consultation Ms Davidson sought more information about familymembers' names and details concerning Jan's taxation affairs.[52] On 17 September 2019 Ms Davidson went to Jan's home in Dunedin to makefinal arrangements concerning the sale of the property. Jan confirmed her instructionsconcerning the draft will. Ms Davidson said she did not want to press Jan on thisoccasion to sign the will as she had too much on her plate over the move toChristchurch.[53] Under cross-examination by Mr Little, Ms Davidson said:"Jan, we need to sign your will and – but I am coming up in a few weeks timeanyway I'm scheduled to do that, so why don't I drop in and see you in yournew place," and she was very happy about that, that was a good excuse to dropin and by that stage she thought she'll have met enough people that she couldfind two witnesses which was struggling to find in Dunedin although I couldhave obviously found my office staff, but it was a good reason for us to catchup. And I guess I'm painting a picture which is, which is that I liked Jan andrespected Jan more than I respected most of my clients. She was – she wassuch an amazing person.And later on:I had thoughts about taking her on the launch to where my home in DiamondHarbour is as well, so it went that far.[54] After Jan had successfully moved to Christchurch, she and Ms Davidson hadanother telephone conversation. Jan told Ms Davidson that she would have nodifficulty finding two fellow residents in the village to witness her will whenMs Davidson visited her.Discussion[55] I am satisfied the document at issue has all the hallmarks in form and contentof a will. It therefore appears to be a will as is required by s 14 (1) (a) of the Act. Itscontents are quite unremarkable.[56] The draft will obviously does not comply with s 11 because it was neverexecuted, although there is clear evidence that Jan intended to execute it whenMs Davidson visited in Christchurch for that precise purpose.[57] The draft will also came into existence in New Zealand as required bys 14(1)(c).[58] I have set out in some detail how the draft will came to be created. I now wishto add some comments on the nature of the relationship between Ms Davidson and Janas it is of real significance to the outcome of my evaluative assessment.[59] Even though the relationship between Ms Davidson and Jan commenced in aprofessional context it appears they became very friendly. It is also clear thatMs Davidson had a very caring and pastoral approach to Jan and Jan's affairs. I wasstruck by the affection Ms Davidson had for Jan, and the moving account she gave inher viva voce evidence of the care and concern she had for Jan whom she describedas a remarkable person. Their relationship was in the nature of a friendship, as wellas being professional. That is no doubt why Jan appointed Ms Davidson her attorneycharged with dealing with her most intimate and critical affairs. There is no doubt inmy mind that, as a result of Ms Davidson's care and concern for Jan, Jan reposedconsiderable trust and confidence in her.[60] The respondents were critical of the length of time Ms Davidson took to takeher instructions. I am not. It is clear Ms Davidson recognised that Jan was feelingvulnerable and frightened. For instance, it was Ms Davidson Jan turned to when thepolice advised her she could no longer hold or obtain a motor vehicle licence. Intaking matters slowly and sensitively with Jan she managed to secure Jan's future withthe enduring power of attorney and to get Jan's firm instructions on the final form ofher will. She also managed to help Jan understand that some provision should be madefor her family, when Jan had fairly entrenched views that they did not deserverecognition in her will.[61] Although the file notes are incomplete and scant, I am satisfied that over aconcentrated period of time Ms Davidson elicited the necessary information from Janon which to make the draft will, and that all the core elements necessary in a will arecontained in the draft will. As to the incompleteness of the file notes, I am satisfiedthat Ms Davidson does have a good memory, was able to "fill in the blanks" and wasnot shaken under cross-examination as to her recollection of her many discussionswith Jan.[62] Jan had lived overseas for a long period. Her relationship with her siblings,niece and nephew were clearly affected as a result. Her relationship with them wasalso clearly affected by her perception of their reaction to her Parkinson's diagnosis.Jan did not have any partner or children to provide for. Her estate had been createdentirely by her own efforts. She was an independent freethinker. The charities shechose to benefit in her will are well-established entities, known internationally for theirintegrity and value to the global community. The respondents are not persons who areautomatically entitled to be claimants under s 3 of the Family Protection Act 1955.There are therefore clear and cogent reasons why Jan instructed Ms Davidson to draftthe will to make some symbolic provision for her family and to leave the bulk of herestate to the charities.[63] In summary, having regard to the draft will itself, the evidence as to why thedraft will was not signed or witnessed, the evidence as to Jan's testamentary intentions,the statements made by Jan to Ms Davidson in her capacity as Jan's lawyer and thepastoral care and concern demonstrated by Ms Davidson over and above theprofessional relationship, I am satisfied on the balance of probabilities that the draftwill appears to be a will and accurately expresses Jan's testamentary intentions.[64] As a result of those conclusions I do not accept the respondents' case thatMs Davidson was improperly motivated to bring the application, nor that she hasfabricated some or all of the draft will.Testamentary capacity[65] The principles relating to the assessment of testamentary capacity are wellsettled. They were set out by the Court of Appeal in Woodward v Smith5 and repeatedby the Court of Appeal in Loosley v Powell.6 In both cases the Court restated the5 Woodward v Smith [2009] NZCA 215.6 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618.principles laid down in the often-cited judgment of Banks v Goodfellow.7 Thoseprinciples, as restated by the Court in Woodward v Smith, are:8(1) Because it involves moral responsibility, the possession of the intellectualand moral faculties common to our nature is essential to the validity of awill(2) It is essential to the exercise of such a power that a testator:[i] understands the nature of the act and its effects; and also the extentof the property of which he is disposing;[ii] is able to comprehend and appreciate the claims to which he oughtto give effect;[iii] be free of any disorder of the mind which would poison hisaffections, pervert his sense of right, or prevent the exercise of hisnatural faculties; that no insane delusion shall influence his will indisposing of his property and bring about a disposal of it which, ifthe mind had been sound, would not have been made.(3) Unsoundness of mind arising from want of intelligence caused bydefective organisation, or by supervening physical infirmity or the decayof advancing age, as distinguished from mental derangement is equallycause of incapacity. But[i] Though the mental power may be reduced below the ordinarystandard, yet if there be sufficient intelligence to understand andappreciate the testamentary act in its different bearings, the power tomake a will remains.[ii] It is enough if the mental faculties retain sufficient strength fully tocomprehend the testamentary act about to be done.(4) It is not necessary that the testator should view his will with the eye of alawyer, and comprehend its provisions in their legal form. It is sufficientif he has such a mind and memory as will enable him to understand theelements of which it is composed, and the disposition of his property inits simple forms.(5) In deciding upon the capacity of the testator to make his will, it is thesoundness of the mind, and not the particular state of the bodily health,that is to be attended to. The latter may be in a state of extreme weakness,feebleness or debility and yet he may have enough understanding todirect how his property shall be disposed of; his capacity may be perfectto dispose of his property by will, and yet very inadequate to themanagement of other business, as, for instance, to make contracts for thepurchase or sale of property.7 Banks v Goodfellow (1870) LR 5 QB 549.8 At [19].(6) A testator who has reflected over the years on how his property shouldbe disposed of by will is likely to find it less difficult to express histestamentary intentions than to understand some new business.(7) Testamentary capacity does not require a sound and disposing mind andmemory in the highest degree; otherwise, very few could maketestaments at all.(8) Nor must the testator possess such capacity to the same extent aspreviously. His mind may have been in some degree weakened, hismemory may have become in some degree enfeebled; and yet there maybe enough left clearly to understand and make a sound assessment of allthose things, and all those circumstances, which enter into the nature ofa rational, fair, and just testament.(9) But if that standard is not met, he will lack capacity.[66] The statements from Banks v Goodfellow are to be treated as guidingpropositions rather than as a formula.9[67] The Court of Appeal in Loosely referred to the relevant onus and standard ofproof in a testamentary capacity case, citing the following from Bishop v O'Dea:10[3] In probate proceedings those propounding the will do not have to establishthat the maker of the will had testamentary capacity, unless there is someevidence raising lack of capacity as a tenable issue. In the absence of suchevidence, the maker of a will apparently rational on its face, will be presumedto have testamentary capacity.[4] If there is evidence which raises lack of capacity as a tenable issue, theonus of satisfying the Court that the maker of the will did have testamentarycapacity rests on those who seek probate of the will.[5] That onus must be discharged on the balance of probabilities. Whether theonus has been discharged will depend, amongst other things, upon the strengthof the evidence suggesting lack of capacity.[68] There is, accordingly, an evidential onus on the respondent to displace thepresumption of testamentary capacity on the date the will was made.11 If that onus isdischarged then it falls on Ms Davidson to satisfy the Court on the balance ofprobabilities that Jan had testamentary capacity.9 Loosley v Powell, above n 5 at [19].10 At [20]; Bishop v O'Dea (1999) 18 FRNZ 492 (CA).11 Loosley v Powell, above n 5 at [102].Discussion[69] The respondents say that throughout the relevant time (mid to late 2019) Janlacked testamentary capacity "due to a paranoia she had which prevented her frommaking rational decisions about her and her family". It is significant that therespondents have not produced any independent medical evidence on that point. Ishall now set out the evidence on which they rely.[70] Claire Riviere, a close friend of Jan's, noted a significant change in herpersonality and demeanour as early as 2011. She described Jan as accusing her ofcolluding with and discrediting her to her work colleagues. I note this was around thetime Jan was diagnosed with Parkinson's disease. The Parkinson's was certainlyphysically debilitating. There is no evidence that she was suffering from a disease ofthe mind that amounted to persecutory delusions at this time.[71] Jan's sister Robyn and her brother Gavin filed affidavits containing emailexchanges they had with Jan in early 2016. It is apparent that Jan thought her sisterhad been meddling in her affairs. It is not possible to identify what the meddling wasthought to have consisted of. It is also clear that Jan thought she had been defamedby Robyn. Gavin and his wife were accused by Jan of not being supportive of Jan inthe face of Robyn's alleged defamation of Jan. In the course of these email exchangesRobyn (who has a background in mental health) offered to travel to Dunedin and assistJan in getting some medical advice about the potential side effects of Parkinson'sdisease including cognitive disturbances and paranoid ideation. Jan was offended bythis. The offer was not taken up and Robyn and Jan remained estranged at the time ofJan's death.[72] I should note that it was not a long bow for Jan to draw from Robyn's e mailthat Robyn thought the disease may have reached the stage that Jan should go into arest home. In that case Jan was plainly not delusional.[73] Jan's brother, Blair Cousins, filed an affidavit supporting those of Robyn andGavin. He had had limited contact with Jan shortly before her death, but they remainedon good terms.[74] Jan's nephew, Philip Cousins, also filed an affidavit saying he had a goodrelationship with Jan and talked to her every three or four weeks for about 20 minutes.He also observed that Jan had a belief that "others" were trying to get her into a resthome.[75] It is clear, rightly or wrongly, Jan did not feel supported by her family in thelater years of her life. This may have been an unfair characterisation of their efforts.She seems to have formed the belief that Robyn was not only unsupportive but activelyacting against her. This appears to have some connection with her belief that otherswere trying to put her into a rest home. Given her medical condition, the prospect ofbeing put into a rest home against her will would have been galling at best and deeplydistressing at worst. The fact that these intentions were well intentioned is immaterial;Jan felt distressed by them. That is not surprising when Jan would have had to confrontquestions about her mortality and ability to continue to live independently after alifetime of high -functioning independent living.[76] I acknowledge Robyn had plainly formed the view that Jan's disease hadprogressed to cognitive disorder. However, her evidence is circumstantial, and shedoes not have the relevant expertise to make that determination. The mere fact thatJan had Parkinson's disease, in and of itself, is not enough. Objective evidence thatcan be tied to the relevant point in time is required to raise capacity as a tenable issue.The only medical evidence provided to the Court was the report written for the coronerby Jan's medical practitioner, Dr Williams, and the review of Jan's medical file byDr McIllraith, a colleague of Dr Williams. The respondents submitted this evidencewas hearsay and inadmissible, no doubt because it did not support their case. Theevidence of Dr Williams was her sworn statement for the coroner's inquest into Jan'sdeath. Dr McIllraith's evidence was a review of Jan's existing medical notes.[77] Even if the respondents could have raised testamentary capacity as a tenableissue, I have the evidence of Ms Davidson, a professional charged with the duty tosatisfy herself that there are no questions concerning her client's testamentary capacity.[78] Ms Davidson has been a practising lawyer since 1985. She is a seasonedpractitioner in all aspects of the law dealing with people's personal affairs, propertyand deceased estates. She has had significant experience of clients with marginalcapacity and with no capacity at all. She has made applications under the Protectionof Personal and Property Rights Act 1988 (PPRA). She has also practised in themental health area. From all of this, I accept she has had long experience of peoplewith disabilities, including a lack of testamentary capacity. She is also aware of herprofessional responsibilities in taking proceedings under the PPRA when a client lackstestamentary capacity in relation to their own affairs. However, as I have already said,Ms Davidson has some imprudent methods of recording instructions.[79] Her evidence is that:On not one of my dealings with Jan was any concern raised in my mind aboutJan's mental health. I did not see signs of delusional paranoia or any otherpsychological disease.[80] Ms Davidson did question Jan about the reasons behind her wishing to give themajority of her estate to charity and not to family, and Jan confirmed that she did notthink her family were supportive of her following on from her diagnosis. She toldMs Davidson that Robyn thought she was "doolally". Ms Davidson said Jan wasoffended by this for obvious reasons. Ms Davidson observed generally that althoughParkinson's was debilitating Jan physically, her intellect remained as sharp as a tack.[81] In summary, the respondents did not discharge the evidential onus on them toraise Jan's testamentary capacity as a tenable issue. Even if they had, Ms Davidson'sevidence would have led me to conclude on the balance of probabilities that Jan hadtestamentary capacity.Conclusion[82] As observed by Courtenay J in Balchin v Hall, where a Court is satisfied thatthe document in issue represents the deceased person's genuine intentions it canordinarily be expected that a validating order will be made.12 Where a Court hasconcluded that the document reflects the deceased's testamentary intentions therewould have to be exceptional reasons to not give effect to the deceased's wishes. Nosuch reasons exist in this case.12 Balchin v Hall [2016] NZHC 837 at [11].Order[83] I make an order under s 14 of the Act declaring the document (being the draftwill prepared by Ms Davidson) appended to her affidavit of 17 March 2020 to be thevalid last will of Janice Lee Cousins.Costs[84] The issue of costs is reserved. In the event counsel cannot agree on costs eachis to file a memorandum of no more than five pages within 20 working days of thedelivery of this judgment and costs will be dealt with by me on the papers.Doogue JSolicitors:Klinkert Law, DunedinEagles Eagles & Redpath, Invercargill