PUBLIC TRUST v DOLLIMORE [2018] NZHC 3316

PUBLIC TRUST v DOLLIMORE [2018] NZHC 3316

On the balance of probabilities the Court was satisfied the testator had testamentary capacity when she gave instructions on 22 January 2010 and when she executed the will on 26 January 2010: contemporaneous GP notes and the independent interview by an experienced Public Trust officer supported capacity, expert...

Source-derived case information.

Citation
[2018] NZHC 3316
Parties
Plaintiff: Public Trust; First Defendant: Anna Deane Dollimore; Second Defendant: Michelle Patricia Sowman
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 December 2018
Procedural Posture
Probate / Will Validity / Trial Judgment
Outcome
Declaration that the 2010 will of Annette Dollimore is valid; application for probate of the 2009 will declined
Legal Topics
Testamentary Capacity, Undue Influence, Probate of Wills, Enduring Powers of Attorney, Burden and Standard of Proof
Wills and Estates Probate Capacity Undue Influence Elder Law Testamentary Capacity Probate of Wills Enduring Powers of Attorney +1 more

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Parties

Public Trust

Plaintiff

Anna Deane Dollimore

First Defendant

Michelle Patricia Sowman

Second Defendant

Procedural Posture

Probate / Will Validity / Trial Judgment

Legal Issues

  1. 1 Whether the testator had testamentary capacity when giving instructions on 22 January 2010 and executing the will on 26 January 2010
  2. 2 Whether the 2010 will was procured by undue influence
  3. 3 Whether the 2009 will should be admitted to probate instead of the 2010 will

Ratio Decidendi

On the balance of probabilities the Court was satisfied the testator had testamentary capacity when she gave instructions on 22 January 2010 and when she executed the will on 26 January 2010: contemporaneous GP notes and the independent interview by an experienced Public Trust officer supported capacity, expert evidence did not categorically preclude capacity, and there was insufficient evidence to infer undue influence. Accordingly the 2010 will was declared valid and probate of the 2009 will was declined.

Court Disposition

Declaration that the 2010 will of Annette Dollimore is valid; application for probate of the 2009 will declined

Orders

  • Declaration that the will dated 26 January 2010 of Annette Dollimore is valid
  • Application for probate of the will dated February 2009 is declined