SAUNDERS & ORS V THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED HC PMN CIV-2008-454-389

SAUNDERS & ORS V THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED HC PMN CIV- 2008-454-389 12 August 2010IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CIV-2008-454-389UNDER the Law Reform (Testamentary Promises) Act 1949 BETWEEN KAYE SAUNDERS, CAROL LATIMER AND PAULINE BROWN Plaintiffs AND THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED Defendant Hearing: 4-5 August 2010 Counsel: G A Paine for plaintiffs T G A Manktelow for the defendant M B Ryan for Mrs Guy T P Cleary for Charities Judgment: 12 August 2010RESERVED JUDGMENT OF DOBSON JContentsLegal elements for testamentary promises claim ............................................................................ [9]Family relationships ........................................................................................................................ [24]The evidentiary context ................................................................................................................... [27]Clarice's assurances/promises ........................................................................................................ [42]Lack of testamentary capacity ........................................................................................................ [66]Undue influence ............................................................................................................................... [75]Summary and costs .......................................................................................................................... [82][1] In these proceedings, the plaintiffs (respectively Kaye, Carol and Pauline) seek further provision from the estate of Clarice Greenbank (Clarice) who was the second wife of the plaintiffs' paternal grandfather, William Greenbank (Bill). Bill'sfirst wife was their paternal grandmother, hence their reference to Clarice as their step-grandmother. [2] The plaintiffs claim breach of a testamentary promise treated as a long standing aspect of family arrangements to the effect that Clarice would, in essence, provide well for them in her Will. [3] The plaintiffs also challenge Clarice's testamentary capacity at the time she executed her last Will on 4 December 2007. If that aspect of the claims was successful, then they accept that the estate would be administered in accordance with Clarice's penultimate Will, executed on 4 August 2006. The provisions in favour of the plaintiffs are identical in both wills. [4] A third basis for challenging Clarice's Will is that she was the subject of undue influence at the time it was completed. That influence was allegedly being exerted by Christine Guy (Christine), a caregiver of Clarice, who was the subject of progressively greater provision in the numerous wills completed by Clarice in her last years. In the final Will, Christine was gifted a residential property in Palmerston North and $40,000. [5] In the final Will, after the gift of the property and $40,000 to Christine (she was also to be gifted a bracelet and a figurine), there were modest gifts of money to one couple, the Yates, to Jean Whitehead, and to another friend. The plaintiffs' mother, ie Clarice's step-daughter-in-law (Gwyneth), was gifted a particular ring, with the remainder of the jewellery and personal and household items not previously dealt with being gifted to the plaintiffs. [6] A will completed in 2000 gave one third of the residue of Clarice's estate to each of the New Zealand Heart Foundation, the New Zealand Cancer Society at Palmerston North and the IHC Foundation at Palmerston North. In the eight wills Clarice completed between then and her last Will in December 2007, she consistently provided for the residue to be held in perpetuity in a charitable trust to be known as the Clarice and Bill Greenbank Charitable Trust, with provision to pay the income generated by the assets in the trust in thirds to those three named charities(the charities). There were some differences in what would constitute the residue to be settled on the trust, with some wills providing separately for a gift of the Palmerston North residential property, and others leaving that property to comprise part of the residue. [7] On the basis of values adopted by Guardian Trust for the purposes of administering the estate, the estate comprises the Palmerston North residential property valued at $263,000, and cash, equities and fixed interest investments of some $696,700. [8] As a matter of sequence, it is necessary to deal first with the challenges to the Will, before it becomes relevant to consider the claim against the estate administered on its terms. However, the major thrust of the case was the testamentary promises claim, and it is appropriate to deal with that, in light of my conclusions that neither the lack of testamentary capacity claim nor the undue influence claim can be made out. I will set out my reasons for those decisions after dealing with the major element of the case.Legal elements for testamentary promises claim[9] Section 3(1) of the Law Reform (Testamentary Promises) Act 1949 (the section) provides:3 Estate of deceased person liable to remunerate persons for work done under promise of testamentary provision(1) Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may bereasonable, having regard to all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate, whether as creditors, beneficiaries, wife, husband, civil union partner, children, next-of-kin, or otherwise.[10] I concur with the provisional view that a promise may be conveyed indirectly1 and that it may be expressed in less than contractually enforceable terms.2The section can thus be distilled into four separate elements: a) the claimant must have rendered services to, or performed work for, the deceased in the deceased's lifetime; b) there must be an express or implied promise by the deceased to reward the claimant; c) there must be a nexus between the services and the promise; and d) the deceased must have failed to make the promised testamentary provision or otherwise remunerate the claimant. [11] As to the third element, cases on claims under the section predictably reflect the requirement in the heading and the wording of the section "...promise by the deceased to reward [the claimant] for the services..." in requiring a sufficient nexus between the promise of a testamentary provision, and the work undertaken. The decision in Tucker illustrates this requirement. There, one of two brothers had remained in the family home and was dependent on his settled existence there because of an arthritic condition. On the death of the father of the two brothers it was discovered that the house had not belonged to their father as assumed. The house in fact belonged to their mother who, contrary to their understanding during the parents' lifetime, was not in fact married to the father and who died intestate. The consequence was that both brothers had an equal interest in the property. To1 Bishop v Public Trustee [2001] NZFLR 413 (HC) at [56].2 McCormack v Foley [1983] NZLR 57 (CA); Tucker v Guardian Trust and Executors Co [1961] NZLR 773 (SC) at 775.resolve matters, the non-resident brother completed a disclaimer in respect of his half interest in the property. Although no record was made at the time, the Court accepted that there had been a contemporaneous promise by the resident brother to leave the property to the disclaiming brother, in his Will. The testamentary promises proceedings ensued against the estate of the brother who had continued to reside in the property, when the claimed promise made to the disclaiming brother was not reflected in the resident brother's Will. [12] Over the deceased's latter years, the claimant had performed household work and services at the property, undertaking heavier household work and gardening that the deceased was unable to do for himself. When these services were advanced as services or work done in return for the promise, they were rejected as such by McCarthy J because there was no sufficient connection established between the promise to leave the property, and the giving of the assistance which the claimant had provided. There is likely to be a continuum between the direct connection such as exists in a contractual sense between the consideration for a promise, and it subsequently being carried out, and substantially less connection between a promise, and services provided in response to it, such as in extended family situations over a period of years. However, at the core, there must still be some degree of causal connection between the promise of a testamentary benefit, and the work or services provided. [13] Although not necessarily explicitly connected, the circumstances of the promise and the provision of services ought to imply that both promisor and promisee acknowledge in a broad sense the connection between the two. [14] Reverting to the first element, the services provided must be something more than matters undertaken in reflection of natural love and affection within a familial context. Sir Robin Cooke, when delivering the judgment of the Privy Council inRe Welch, suggested: 3...that some straining of the scope of the Act is required to bring within the concept of services the natural incidents and consequences of life within a close family group..."3 Re Welch [1990] 3 NZLR 1.[15] In that appeal, the Privy Council approved the Court of Appeal's characterisation that:The evidence points to nothing more than a normal family relationship between a stepfather and stepson, who had the good fortune to get on well with each other.[16] This characterisation led to a conclusion by the Privy Council to the effect:...the difficulty is that there is no evidence that the promises were ever seen by either the deceased or the appellant as an assessment of a reward for services...The discrepancy between the value of the deceased's assets and the value of anything that can pass muster as "services or work" underlines that the predominant motive of the deceased in making the representations was affection for his stepson and the latter's family, and the natural tendency to give effect to ordinary family expectations.[17] Here, Mr Paine urged that post-Welch decisions reflect a relaxation of the form of services that will be sufficient to constitute provision of services in return for a promise. He cited Re Fagan (deceased): Walter v Fagan4 in which Baragwanath J observed: 5It is abundantly plain from Re Welch that a family relationship and motivations of affection on the part of a deceased by themselves are no substitute for the need for services going beyond the norm. But if there are such services, the fact that their motivation is familial affection does not disqualify them.[18] With respect, that is no more than an observation intended to emphasise what the Judge in that case saw as relevant factual differences between the two cases. [19] Mr Paine also cited Parata v McGowan,6 in which Williamson J, reflecting on the approach in Welch, observed:Obviously in some situations love, companionship, support, children, grandchildren and all of those incidents of life between a deceased and a claimant may be of significance if they are greater than those in normal family relationships. It is necessary, however, to consider whether what happened in a particular case was normal being the natural consequences of the close family group or not.4 Re Fagan (deceased): Walter v Fagan [1999] NZFLR 222.5 At 233.6 Parata v McGowan [1994] NZFLR 937 (HC).[20] Mr Paine also urged as helpful the analogy he sought to draw with a Family Court decision in Re Sellars7 in which, on the facts, the Judge was prepared to treat as qualifying services what might be no more than the normal incidents of natural love and affection in other families, where they were provided by the claimant brother to the deceased sister/alleged promisor. There had been a lengthy period of estrangement, then a period of relatively close contact in which the claimant provided services in the nature of companionship, support and accommodation, before a subsequent cooling of the relationship in the last years of the life of the deceased. That is a decision reflecting its own facts. As held by Mallon J inChapman v P: 8Because it is the promisor's intentions that are relevant it seems to me that it must be correct to focus on what was expected in this particular family.[21] It is logical that the context in which services are provided may be relevant to an assessment as to whether they are sufficient to qualify as going beyond the normal demonstrations of natural love and affection. As observed by the Court of Appeal inThwaites v Keruse: 9Companionship, affection, cohabitation, may properly be regarded as "services" in some circumstances, where for example the promisor is elderly or lonely or in poor health. But that cannot be so in the case of young people simply sharing together the pleasures of each other's company in a common household.[22] Accordingly, the services must make out something that, in the familial context of the case, establishes "something extra". 10[23] Forbearance to sue in respect of a potential family protection claim that might have been pursued in respect of another estate arises here as a discrete form of "service". It is convenient to review the law on that, in the context of the facts once explained.7 Re Sellars (deceased); Bailey v Public Trustee [1996] NZFLR 971.8 Chapman v P HC Wellington CIV-2007-485-1372, 2 July 2009 at [287].9 Thwaites v Keruse (1993) 11 FRNZ 19 at 23.10 See WM Patterson Law of Family Protection and Testamentary Promises (3 rd ed, LexisNexis, Wellington, 2004) at 193.Family relationships[24] Prior to his marriage to Clarice, Bill had two sons in the course of his first marriage, namely Gordon and Clive. The present plaintiffs are the children of Gordon and his wife, Gwyneth. Gordon's brother, Clive, had two children, Randall and Catherine. Randall has two sons, Paul and Matthew, who happen to be the only great grandchildren of Bill bearing the Greenbank name. On the occasion of Bill's 90th birthday in June 1993, he indicated that he was intending to leave his entire estate to those two great grandsons, ostensibly because they were the only ones bearing his name. The impression gained by the plaintiffs and their parents, in particular at that time but in a similar way both before and after that event, was that Clarice would be providing for the plaintiffs out of her estate. It was raised at the time of Bill's 90th birthday as a reason why they should not be worried about their grandfather Bill not making provision for them in his estate. [25] Bill died in 2000, leaving a life interest in his estate to Clarice, with a gift over to Matthew and Paul Greenbank. Although the plaintiffs considered that the exclusion of all the other grandchildren and great grandchildren from Bill's estate was unfair, they claim to have been influenced in not pursuing any form of claim against that estate by virtue of their understanding that they would receive substantial inheritances under Clarice's Will. [26] The plaintiffs claim then to have been shocked when they learned, on Clarice's death on 20 January 2008 that they had been excluded, apart from sharing jewellery and household items, which appear to be valued at some $20,000.The evidentiary context[27] The testamentary promises aspects of the claim were the subject of evidence by way of affidavit, with cross-examination of the deponents. The remaining elements of the case were intended to be by way of viva voce evidence, with briefs of evidence exchanged prior to trial in the usual way. It was appropriate to treat all of the evidence-in-chief as read, once witnesses had either confirmed the accuracy ofthe previously sworn affidavits, or confirmed in the same terms the accuracy of briefs of evidence. [28] I am satisfied that none of the witnesses consciously attempted to misrepresent the situation that applied to the relevant circumstances. Perceptions have perhaps been affected by the passage of time and, particularly for the plaintiffs, by the invidious circumstances in which their family history now had to be reviewed. [29] In the week before the hearing, Mr Paine raised serious concerns about the ability of the plaintiffs' parents, Gordon and Gwyneth Greenbank, to be cross- examined on affidavits previously sworn by them. I was provided with a medical certificate suggesting that Gordon's state of health was so precarious that the stress of coming to Court and being cross-examined was likely to constitute a real threat to him. I had entertained the prospect of admitting at least parts of their evidence, without their being present for cross-examination. In the event, both Gordon and Gwyneth appeared and were cross-examined. [30] It is easy to be satisfied that all of the plaintiffs enjoyed a mutually loving relationship with Clarice. There was no challenge to their inherently likely descriptions of frequent contact when they were children in Palmerston North, of Clarice describing them as "her girls" or "her grandchildren", and of their being given treats by her. The relationship seems indistinguishable from one that could have occurred in a positive relationship between a natural grandmother and granddaughters. Clarice had no children of her own, and it appears that there are few members of her immediate family with whom to share a familial relationship. She was some 17 years younger than Bill, and as the plaintiffs describe it, their father, Gordon, and Gwyneth consciously decided to foster close ties with Clarice notwithstanding opposition to that course from Gordon's natural mother, Bill's divorced wife, Mary. [31] All of the plaintiffs ceased living in Palmerston North by their late teens. Two have lived substantially overseas since that time, and the third has made her home in the South Island. They are now in their 50s. Carol last saw Clarice in 2003,five years before Clarice's death. 11 Pauline's evidence did not cover the point specifically. The last visit she identifies was in 2002, but that does not exclude the prospect of some personal contact with Clarice thereafter. 12 Kaye produced a log of the occasions on which she had telephoned Clarice between 2000 and Clarice's death in 2008. It suggests a pattern of calls roughly twice a month in 2000, and dropping to approximately once a month by 2004, with the last telephone call that connected with Clarice being her birthday in January 2007, a year before her death. Kaye lives in Timaru and had visited Clarice a small number of times since Bill died in 2000. She last saw Clarice on 15 January 2008, shortly before her death, and prior to that can remember visiting her in May 2006. 13[32] All the plaintiffs maintained regular contact by mail, including cards, flowers and gifts on birthdays and at Christmas. [33] It seems most likely that the longer their friendships with Clarice depended on communications from a distance, and the older Clarice got, the greater the difficulty there would have been in maintaining the strength of the positive bonds they all recalled from their youth. [34] The plaintiffs referred to the extent of hurt they felt when they discovered that they were described in Clarice's Will as "friends" rather than as her grandchildren. It is understandable that the different connotations that description has for their relationship, at the same time as learning that they had been left out of the substantial entitlements they anticipated from Clarice's Will, would contribute to concerns that Clarice had reneged on long-standing assurances to provide for them. It could also give rise to the spectre that this had occurred when Clarice was no longer fully aware of the consequences of her actions, or possibly overborne by those who had more extensive contact with her in her final years. [35] There was no dispute that Bill and Clarice had made inter vivos gifts of not11 T78/27-79/2.12 Statutory declaration, 24 November 2008, page 2.13 T5/6-17.insignificant amounts to the plaintiffs and others of Bill's grandchildren. In addition, the plaintiffs acknowledge getting isolated amounts from a trust established by Clarice for the purposes of assisting with education and welfare of the great grandchildren. The current circumstances of that trust and the extent of its assets were not explained. [36] None of the plaintiffs had turned their minds whilst Clarice was alive to precisely what the extent of her estate might be, or the amount they considered they were going to inherit in terms of the assurances given to them. It was simply that Clarice was well-off, and that her estate would be sufficient to leave them with substantial amounts. Nor had any of them put a figure on their expectation as to how much they ought to be awarded in these proceedings. When pressed in cross- examination, Kaye suggested an expectation of at least the house, contents and jewellery. [37] As to Christine's relationship with Clarice, I similarly have no reason to doubt the essence of Christine's own description of how that developed. Christine was in business as a hairdresser when she first met Clarice in about 1988. Clarice used to have her hair done at Christine's salon and after the salon closed in 1991, Christine would do Clarice's hair weekly, either at Clarice's home or at Christine's. From approximately 1993 until Bill died in 2000, Christine spent approximately three hours per week cleaning their house. After Bill died, Christine describes herself becoming Clarice's "companion", as Clarice did not have any close family in Palmerston North. This involved Christine going to see Clarice every morning to check on her and see what she needed for the day. Initially Clarice was still able to care for herself, and there appears to have been a pattern of their going shopping and walking together, as well as Christine taking Clarice for a drive. [38] Once Clarice started having strokes from approximately 2000 onwards, Christine recalls her being unable to maintain her independence. Clarice wanted to remain in her own home and be cared for there, and that involved Christine continuing to visit her every day. As Clarice's health deteriorated, Christine's dutiesextended to showering and dressing her in the mornings, helping administer medication and, if necessary, helping Clarice with toilet routines. [39] In this period, Christine made sure that Clarice had breakfast and lunch meals whilst the neighbours, Mr and Mrs Yates, provided her dinner. [40] As Clarice's health deteriorated further, Christine spent more time with her at all hours of the day and night. Once she was hospitalised or when unwell and wanting company, it appears that Christine was the person who generally attended on her, kept her company and reviewed her needs. She was paid for the time spent working for, or attending on, Clarice. At the time of Clarice's death, Christine was paid $600 per week. [41] Christine's description of the personal relationship ends with the following: 14Over the years Clarice and I developed a very strong and close bond and she often referred to me as her daughter. She would often say to me that she could in no way repay me for everything that I had done for her. I never expected anything from her and did everything I did, because I wanted to – not because I had to. It's not about what I want or what her family wants – its about Clarice's last wishes.Clarice's assurances/promises[42] None of the plaintiffs heard Clarice make any promise to leave property to them in her Will, during the weekend of Bill's 90 th birthday in 1993. Each of them recall learning from their parents of Bill's announcement as to what he would do with his estate, and it appears that some learned from Gordon of an indication from Bill that the girls should not worry because Clarice would look after them in her Will. They also learned from Gwyneth of a conversation she had had with Clarice, clarifying what she had heard about Bill's intentions, in the context of which Clarice had apparently reassured Gwyneth that the girls need not worry because she would "look after the girls".14 Paragraph 19, affidavit of Christine Ellen Guy, affirmed 5 February 2010.[43] Clarice's assurance was recalled by each of the plaintiffs in somewhat different terms. Carol's recollection was that the assurance given to Gwyneth was in terms that Clarice "would take care of the girls", and that "she would leave her estate to us three girls". Kaye's recollection is consistent in that she understood Clarice to have said to Gwyneth that she would be leaving her estate "to the girls". Pauline recalled it in terms of numerous promises that the three plaintiffs would receive her estate, or a significant portion of it, and she recalled a pattern of comments from Clarice before she had her strokes and when Bill was still alive, stating that after the death of both of them, the three girls "would always be looked after financially". [44] Subsequent to the 90 th birthday weekend, Kaye recalls a more recent visit when in the context of discussing the education trust that Clarice had set up to provide funds for the great grandchildren's education, Clarice had told her that she was not to worry, as Clarice had "provided for you girls". [45] Notwithstanding criticism from counsel opposing the claim, I am satisfied that these various recollections as described by all of the plaintiffs and Gwyneth and Gordon are sufficient to constitute a promise by Clarice that she would leave either "her estate" or a substantial portion of it to them in her Will. I accept that it was a long-standing understanding shared by all members of Gordon's family. [46] Putting to one side the prospect of forbearance from challenging Bill's estate, there is no suggestion that Clarice's promise was made to procure any work or services from "the girls". The consistent impression given by all of the plaintiffs and Gordon and Gwyneth in their evidence is that Clarice's statements were freely volunteered at times when she was in good health, enjoying life and in particular enjoying the close and positive family relationship she had with "the girls". It is quite inconsistent with the context in which I understand the various assurances to have been given, and the tone of the relationship enjoyed by the participants, that Clarice would have expected anything to be done by any of the plaintiffs, in return for her promise that was simply a reflection of natural love and affection. [47] The plaintiffs also freely acknowledged in cross-examination that Clarice remained free to change her mind as to what she wanted to do with her estate,throughout the period in which Clarice made assurances or promises that she would leave her estate to them. 15 Although there is no close analogy between the statutory basis for testamentary promises claims, and the elements of estoppel, these acknowledgements that Clarice was free to change her mind are inconsistent with the promises having been made in a context where it was in return for services. Even without any legal training, it is reasonable to expect that a promisee relying on a promise when providing services would suggest some qualification on the freedom of the promisor to resile. The fact that the plaintiffs did not have any such perception in the present circumstances highlights the absence of anything required of them, in return for the promise they have now sued on. [48] I am also satisfied that all aspects of the relationship between the plaintiffs and Clarice cited as constituting "services" remained within the boundaries of what could be expected as normal incidents of natural love and affection within this particular family group. With respect, I consider the way in which Mr Paine argued for a lower expectation of what might be contributed by way of natural love and affection because Clarice was the girls' step-grandmother and there was no blood relationship between them, demeaned the very loving and positive relationship that was obviously enjoyed between them all in earlier years. As the girls were growing up, they were receptive to being spoilt and dressed up by Clarice, and from those beginnings responded positively, and I am sure, genuinely, with affection in maintaining a positive relationship. This was at its strongest when Clarice was in good health, Bill was still alive and they were evidently a very happy couple, hardly in need of companionship in the sense that services of that type might qualify under the Act. Indeed, what Mr Paine urged upon me is somewhat out of step with the authorities such as Re Welch where the step-family relationship was held to be no different to any other close family relationship. [49] In the years after Bill's death, and when Clarice was in need of companionship, and then progressively more physical support, the plaintiffs were not available to provide it because they lived elsewhere. The contrast between the earlier and later periods of the relationship between Clarice and the plaintiffs is15 For example, Kaye T17/7-21; Carol T84/1-13.perhaps not as great as that posed by the Court of Appeal in Thwaites (quoted in [21] above), but the changes in it are of the same type. [50] None of this analysis constitutes any element of criticism of the plaintiffs. Whilst emotional support can add to services related to the physical well-being and care of a promisor in failing health and in respect of her property, it is more difficult to characterise emotional support from a distance simply on its own as a qualifying service. In the absence of a defined need by the promisor for such support, and some acknowledgement that it went some way to fulfilling such a need, I consider that such a service will not qualify. Here, to the extent that it is relevant, there are suggestions in the evidence of Christine that communications from the plaintiffs in Clarice's last few years were not as welcome as they no doubt had been in earlier years, and did not provide effective support for her. [51] I am also satisfied that all of the plaintiffs did what they did in maintaining their relationships with Clarice out of their natural love and affection for her, completely uninfluenced by the promise they believed had been made in their favour, or any implicit obligation to keep up their side of any bargain. Of course "it is the promisor's purpose, not the promisee's motive, which establishes the necessary nexus between the promise and the services or work". 16 Therefore the motivation of the plaintiffs bears little relevance. To their credit, the plaintiffs acknowledged that all of their dealings with Clarice were quite unaffected by their awareness of the promise.17 The matter was not specifically put to Pauline, but given the consistency between her and her sisters on all other aspects of the claim, I am satisfied that her approach to her relationship with Clarice is very much the same as her two older sisters. [52] Another consideration in assessing services is the relativity between the conduct characterised as "services" provided in return for the promise, and the value of the promise as claimed. Here, even if I were persuaded that the cumulative value of the communications of love and moral support for Clarice went marginally beyond what could be expected as matters of natural love and affection within this16 Byrne v Bishop [2001] 3 NZLR 780 at [48].17 Kaye T20/33-21/3, T27/32; Carol T85/1-8.family, then on any view they would be valued at an extremely modest fraction of the value of the promise that the girls would inherit all, or substantially all, of Clarice's estate. In this context, it is a minor additional factor against recognition of the services as qualifying for a claim under the Act. [53] Messrs Ryan and Cleary also invited me to have regard to the extent of inter vivos gifts that the plaintiffs received from Bill and Clarice during their grandparents' lifetimes. Guardian Trust records enabled Mr Doolan, an officer with Guardian Trust, to depose to gifts from Bill to the plaintiffs totalling some $71,000, as well as smaller amounts paid in favour of some of the plaintiffs' children from the educational trust settled by Clarice. There was some uncertainty as to the exact extent of these payments, and were the services provided by the plaintiffs otherwise sufficient, I would not have found the inter vivos gifts sufficient to negative the otherwise qualifying status of the services. [54] Discretely from their claim to have provided qualifying services, the plaintiffs also claimed that their decision not to contest Bill's estate amounted to a forbearance that qualifies as a "service" in return for the testamentary promise sued upon. The tenor of the evidence was that Clarice disagreed with Bill's discriminatory attitude that only great grandchildren bearing his name should benefit from his Will. Clarice's discussion with her step-daughter-in-law, Gwyneth, on the weekend of Bill's 90th birthday party occurred within the context that she did not agree but that "the girls" (the plaintiffs) need not worry about being left out of Bill's estate. [55] The plaintiffs invite the implication that Clarice would not have wanted the prospect of a family dispute that would be likely to arise, if Bill's estate was challenged. There was no evidence to that effect, but it is a reasonable inference. Nor is there any evidence that the prospect of a claim against Bill's estate was ever discussed with Clarice, so that there was also no discussion with her about the circumstances in which potential claimants would forbear from making such a claim. There are therefore a number of propositions missing from the sequence of circumstances necessary to establish that Clarice recognised the prospect of a claim,and made or reinforced her earlier promise to provide for "the girls" in her Will, as a reward for their not challenging Bill's estate. [56] I took Mr Paine to suggest that had she turned her mind to it, Clarice might have been concerned for her own position under Bill's estate, if the prospect of any challenge to it was raised by members of his family, including the plaintiffs. With respect, that is hardly a realistic concern. Certainly, she may have been concerned to avoid the prospect of family disharmony, but it seems quite unrealistic to suggest she would be concerned about any threat to her entitlement as a life tenant of Bill's estate, when any challenge could only focus on the discriminatory treatment of the rest of the class of which the favoured great grandchildren, Matthew and Paul, were members. Any claim would relate to disposition after Clarice's life interest, but not to that initial provision. [57] Further, it is clear that Clarice's promise in respect of provision for "the girls" in her Will pre-dated the disclosure in 1993 of Bill's intentions in relation to his own estate. Given that Clarice's promise, in whatever terms, had been raised before then, it could reasonably be expected that some reference would be made in novating the promise to address the absence of challenge to Bill's estate, connecting one with the other. It is clear that there was no such connection. [58] My impression from all of the plaintiffs' evidence is that "the girls" were substantially influenced in their views about being left out of their grandfather's Will, by their father, Gordon. His view, probably reflecting more on the wider family relationships than any close legal analysis of the basis for a claim, was that a claim would not be brought. Although a part of the context in which that view was arrived at may well have been an expectation that "the girls" would ultimately inherit from their grandparents via Clarice's estate, that consideration was quite distinct from any recognition that "the girls" were obliged to forbear as part of the reward to Clarice for the promise she had made to favour them in her own Will. [59] It is understandable that the plaintiffs would raise their forbearance in relation to Bill's estate as part of the "services" provided in favour of Clarice, because the unfairness of their disappointed expectation on being left out of Clarice's Will iscompounded by the unfairness at Bill's discrimination against them. Particularly when that discrimination was accepted because of an anticipated benefit under Clarice's Will. However, the unfairness in this sequence of events cannot transform the circumstances in which they decided as a family not to challenge Bill's estate when it comes to characterising services relevant to the promise they seek to sue upon in respect of Clarice's estate. Within the Gordon Greenbank family, the decision was made not to challenge Bill's estate for its own sake, not in the negative sense that they would forbear so as not to prejudice the anticipated entitlement from Clarice's estate. [60] The decision in Tucker described in [11] above is an example of the Court recognising a forbearance to pursue a claim as a form of "service" for the purposes of a testamentary promises claim. However, the situation in Tucker is materially distinguishable from the present. There, both of the brothers had unchallengeable entitlements to half the house. The "forbearance" in that situation involved the brother not in possession disclaiming the entitlement in his mother's intestacy. The Court accepted that he did so as part of an arrangement that the brother remaining in possession would then leave the property to the disclaiming brother in his Will. There is recognition in McCarthy J's judgment that these arrangements might well have supported a claim in contract. In contrast, Clarice's promises were unrelated in every aspect from the prospect of a claim against Bill's estate. There is no evidence to suggest that she turned her mind to a material connection between the two matters. Moreover, from the promisees' perspective, their decision to forbear is also independent of their expectation that previous promises would be fulfilled. [61] Mr Paine also urged an analogy with the Family Court decision in Sellars(see [20] above). There, the testatrix and the claimant were brother and sister. During the period of a relatively long estrangement, their mother had left her entire estate to the testatrix. The claimant did not dispute the will, notwithstanding that the Court in the claimant's subsequent testamentary promises claim considered him to have a good case for a substantial award, given that the testatrix enjoyed a better financial position than he did. The judgment found that a promise made by the testatrix to leave her estate to her brother, made during a period of reconciliation between them, was motivated by a sense of unfairness to her brother, and possiblysome guilt that she had taken the whole of their mother's estate when already better off than her brother. [62] In that context, the Family Court found that services were provided by the claimant to the testatrix during the period of the reconciliation when the testatrix was living on her own and not enjoying good health. In addition, the Judge treated the testatrix's imputed gratitude at the consequences of her mother's will not being challenged as amounting to an additional "service" provided by the claimant, and sufficiently connected to the promise by the testatrix to leave her estate to him. In assessing the quantum of the claim, the Judge found that the benefit received by the deceased as a direct result of the claimant's forbearance to pursue a claim under the Family Protection Act was substantial. [63] The same grounds for distinguishing Tucker apply to the reasoning in Sellars. That claimant's forbearance resulted in a direct and identifiable benefit to the promisor, which is not the case here. Further, the promise in Tucker was made in recognition of the value of the forbearance, which is wholly absent in the present case. Implicitly in Sellars, the reconciliation between the parties and circumstances of the promise were related to the forbearance, whereas here the promise pre-dated any forbearance, and was persisted in quite independently of any acknowledgement to or by Clarice that a forbearance had been made or would be made. [64] Accordingly, I am satisfied that the absence of claim against Bill's estate by the plaintiffs cannot constitute a forbearance of the type that could be sufficiently related to a promise as to constitute "services". [65] For all these reasons, the testamentary promises claim must fail.Lack of testamentary capacity[66] This claim was advanced in reliance on evidence from witnesses who observed, or had some responsibility for, Clarice in her latter years. This evidence came first from Mr Michael Yates, who had been a neighbour of Bill and Clarice for 19 years, and was asked relatively soon after Bill died by Clarice to be her welfareguardian. Mr Yates spoke fondly of Clarice but found his responsibilities difficult as his own observations and advice he had about her state of health dictated the need for her to be in institutionalised accommodation, whereas she had a determined wish to remain in her own home. Mr Yates was accordingly involved in her various admissions to hospital, and then in her being placed in rest homes and ultimately the hospital wing at Metlife in Palmerston North. [67] Mr Yates' observations of Clarice were those of a concerned lay person. When she was admitted to Metlife, he described her as incoherent and likely to jumble her words. Specifically, on 4 December 2007 (the day before execution of Clarice's last Will) he was advised by staff at Metlife that Clarice was being visited by persons involved in changing her Will. As recalled by Mr Yates, the opinion of those at Metlife in touch with him was that Clarice was not in any condition to be changing her Will. Although he was assured by Christine that everything was "above board", Mr Yates rang Gary Wells, who was the relevant client manager then employed at Guardian Trust, the following day. Mr Yates' evidence was to the effect that Mr Wells confirmed to him that changes were being made in the Will that benefited Christine, that Christine had been present when changes to the Will were done, and that Christine was "interpreting for Clarice". [68] Another long-standing neighbour of Clarice, Mrs Jean Whitehead, expressed the view that by the time of Clarice's death, "she may have had her 'marbles' but they were dimmed slightly". Mrs Whitehead recalled how Clarice's speech had suffered from strokes, that she could not always understand what Clarice was saying, and acknowledged that Christine would "talk" for Clarice because of Christine's ability to understand what Clarice was saying when others could not. Mrs Whitehead saw Clarice on her 88th birthday, on 13 January 2008, at which time she could not talk. Mrs Whitehead noted in her diary that Clarice was "failing badly". [69] In addition, some of the hospital and nursing home records in respect of Clarice recorded that she had dementia.[70] The Guardian Trust bore the brunt of defending the claim that Clarice lacked testamentary capacity. It called evidence from Gary Wells, and from Ms Leanne Mooyman who had previous experience as a legal executive and was working at Guardian Trust as assistant to Mr Wells at the relevant time. [71] Mr Wells saw Clarice on 5 September, 10 October, 21 November, 4 and 5 December 2007. On each occasion, he completed a file note of his dealing with her on return to the office. On 21 November, 4 and 5 December, he was accompanied by Ms Mooyman. Their evidence, supported by the contemporaneous file notes, acknowledges difficulties in understanding what Clarice was saying at various times. Overall, however, they were both satisfied that they accurately understood the changes that Clarice wished to make to her Will. In the course of the relevant dealings, they left with her a copy of her previous Will, then a draft of the new Will reflecting the changes, and finally they attended on her execution of it on 5 December 2007. It may be that the more they dealt with Clarice, the easier it became for them to understand what she was saying. There was also some evidence to suggest that her clarity of speech improved. Certainly, on 4 December 2007 when they went over the draft of her new Will and discussed the changes with her, Mr Wells observed that she was very lucid and participated in their discussions in an intelligent way. He deposed that she clearly articulated that the draft Will met her wishes and requirements. Ms Mooyman's observations were to the same effect. [72] As a precaution, Guardian Trust requested Clarice's GP, Dr Steven Zambasos, to assess Clarice's capacity to complete a new will, and arranged for him to examine her on 5 December 2007, the day she executed the Will. Dr Zambasos also gave evidence, and produced a medical certificate that he had completed at the time, which confirmed his opinion that she was competent to complete the Will. Dr Zambasos was cross-examined about his assessments of Clarice over a number of years. He acknowledged the existence of observations by others to the effect that she suffered from dementia, but was firmly of the opinion that at the time he examined her in December 2007, she did not exhibit symptoms of dementia. He acknowledged that, at various times, she had bouts of delirium which he attributed as a side effect of being physically unwell, such as with serious infections, but distinguished delirium as a condition from which she could recover when her generalhealth improved, from dementia which, once contracted, never leaves a person afflicted with it. [73] Without any medical evidence challenging the opinions of her GP, Mr Paine sought to establish a lack of testamentary capacity by suggesting that Dr Zambasos may have been wrong about dementia, and that the references in medical records maintained by others (the makers of the statements not being called) sufficiently raised the prospect of dementia. Reference was also made to the acknowledged difficulties that Clarice sometimes had in being understood. However, there was no reliable basis proposed for inferring that any impaired physical ability to communicate necessarily reflected a mental impairment preventing intelligent thought about testamentary wishes. [74] None of Dr Zambasos, Mr Wells and Ms Mooyman was caused to qualify their opinions in any material way in the course of cross-examination. Their evidence is cumulatively a thorough refutation of any suggestion that Clarice lacked testamentary capacity. The differences between their perception and the observations of Mr Yates and Mrs Whitehead are, with respect to the latter, entirely explicable. I am satisfied that Clarice retained her testamentary capacity as at the date of her last Will. With respect, the strength of all that evidence and the ready prediction that it would not be dented on cross-examination makes it regrettable that this cause of action was not discontinued after there had been an adequate opportunity to consider the affidavits and briefs served on behalf of Guardian Trust.Undue influence[75] The other attack on the Will was a claim that Christine had exerted undue influence over Clarice in the changes made in Clarice's last Will. Six particulars were pleaded alleging:• that Clarice could not communicate effectively at the time of making her last Will, except through Christine;• that Christine was present when the instructions were given to include her as a principal beneficiary, and was able to influence Clarice in making that provision;• that those taking the instructions for a new will could not know if they were Clarice's instructions as Christine was interpreting for Clarice;• that Guardian Trust, by Gary Wells, had acknowledged that Christine was present when the instructions were taken for the last Will and that Guardian Trust required Christine to be present "to interpret for Clarice";• that the changes in the last Will benefited Christine who knew at the time of Clarice's frail health;• that Christine effectively had control over Clarice, allegedly illustrated by the ability Christine had to filter communications, both oral and in writing, from others, including the plaintiffs, to Clarice. [76] I accept Christine's evidence refuting any attempt by her to influence Clarice in relation to the contents of her last Will. She acknowledged being paid for her time, and denied that she was looking for any provision from Clarice's Will. Further, I find that she was genuine in stating that she was uncomfortable with being present when Clarice's Will was being discussed. I also accept that she remained during those interviews, to the extent that she did, because of Clarice's wish that she be there. Mr Wells and Ms Mooyman were able to take the relevant instructions by means of direct dialogue between them and Clarice, without Christine interpreting. [77] It is understandable that staff at Metlife in Palmerston North may have had an impression that communications with Clarice required the intermediation of Christine, and that may indeed have been the case with other infrequent visitors to Clarice's room. However, Mr Wells (and Ms Mooyman) have given entirely credible evidence that, over the period of their five attendances between September and December 2007, there were sufficient periods in which Clarice was lucid and able to communicate, to enable them to take full instructions without theinvolvement of Christine. Given that, the opportunity for undue influence by Christine would have to take other forms, such as threats of some form of adverse consequence if, without Christine prompting her in the presence of others, Clarice did not favour her in her Will. The allegations of undue influence do not extend to that form of conduct. There is no scope for alleging it. [78] Mr Wells was obviously sensitive to the prospect of such concerns arising, as his file note of their 10 October 2007 meeting explicitly recognises the prospect of a claim that Christine exerted undue influence. Further, in Mr Wells' file note of the 4 December meeting, he makes the point that he and Ms Mooyman had gone through the Will with Clarice in a visit that was independent of Christine. [79] The 10 October 2007 file note includes:Clarice again, at this point, made it clear that she wanted to ensure that Christine was well provided for under her will. Christine responded by saying that she wasn't that interested in those provisions and didn't want to be involved with this aspect of it. Her words were that she is not a gold digger and has no interest in benefiting under the terms of the will.[80] I am satisfied that Christine was telling the truth when she made similar comments in the witness box. [81] In all these circumstances, the claim of undue influence must also fail.Summary and costs[82] Accordingly, all aspects of the plaintiffs' claims fail. I do not under-estimate the hurt and sadness caused by their disappointed expectation. To recognise the circumstances of this claim as sufficient would be to relax the need for some meaningful nexus between the promise given and services provided, than could ever be justified on the existing state of the law and I am satisfied that it would be wrong to do so. [83] Given the size of the estate, and the extent of it left to charities, in all the circumstances of the proceedings I consider it appropriate that the reasonable costsof all parties be met out of the residue of the estate. I have considered whether the plaintiffs ought not to be reimbursed for whatever part of their costs relate to the pursuit of the claim for lack of testamentary capacity, but in the end I am satisfied that the reasonable costs of all aspects of bringing and defending the claims should be met by the estate. Leave is reserved to solicitors acting for the estate to refer back to me any concerns as to the reasonableness of costs claimed on this basis.Dobson JSolicitors: Loughnans, PO Box 1257, Palmerston North for plaintiffs Guy and Toby Manktelow, PO Box 1209, Palmerston North for defendant (toby.manktelow@xtra.co.nz) Parties directed to be served: M B Ryan, PO Box 12054, Palmerston North for C Guy (mbr@mbryan.co.nz) T P Cleary, PO Box 10291, Wellington for Charities (timcleary@paradise.net.nz)