RE ESTATE HOWELL [2019] NZHC 1731

RE ESTATE HOWELL [2019] NZHC 1731

On the balance of probabilities the applicants proved the deceased had testamentary capacity on 5 September 2014: contemporaneous solicitor notes and witness evidence showed coherent instructions and understanding, and medical evidence from a geriatric specialist supported that the deceased retained sufficient...

Source-derived case information.

Citation
[2019] NZHC 1731
Parties
Executors of the Estate of Sylvia Theresa Howell: Mark Jonathan Tavendale; Executors of the Estate of Sylvia Theresa Howell: Julia Theresa Elizabeth Mathieson; Respondent (son): Jonathan Charles Babington Howell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 July 2019
Procedural Posture
Probate Application in Solemn Form / Hearing and Judgment; Grant of Probate
Outcome
Application succeeds; probate granted in solemn form in relation to the 5 September 2014 will
Legal Topics
Testamentary Capacity, Undue Influence, Caveat Against Probate, Execution of Will
Wills and Estates Capacity Probate Testamentary Capacity Undue Influence Caveat Against Probate Execution of Will

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 5 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Mark Jonathan Tavendale

Executors of the Estate of Sylvia Theresa Howell

Julia Theresa Elizabeth Mathieson

Executors of the Estate of Sylvia Theresa Howell

Jonathan Charles Babington Howell

Respondent (son)

Procedural Posture

Probate Application in Solemn Form / Hearing and Judgment; Grant of Probate

Legal Issues

  1. 1 Whether the deceased had testamentary capacity when executing the 5 September 2014 will
  2. 2 Whether the 2014 will is valid and should prevail over the 2004 will
  3. 3 Whether a diagnosis of dementia or alleged family influence invalidated the will

Ratio Decidendi

On the balance of probabilities the applicants proved the deceased had testamentary capacity on 5 September 2014: contemporaneous solicitor notes and witness evidence showed coherent instructions and understanding, and medical evidence from a geriatric specialist supported that the deceased retained sufficient capacity for the specific testamentary decision; the 2014 will was therefore valid and probate was granted.

Court Disposition

Application succeeds; probate granted in solemn form in relation to the 5 September 2014 will

Orders

  • Probate granted in solemn form in relation to the 2014 will of Sylvia Theresa Howell dated 5 September 2014
  • Costs reserved; if parties cannot agree each to file sequential memoranda (maximum five pages) and the Court will decide costs