SCHUITEMA AND CONNOR v SCHUITEMA AND ORS[2023] NZHC 1473

SCHUITEMA AND CONNOR v SCHUITEMA AND ORS[2023] NZHC 1473 [13 June 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-489[2023] NZHC 1473IN THE MATTER of an application for an order of probate insolemn form in the estate of ELIZABETHPETRONELLA SCHUITEMABETWEEN ROBERT PAUL SCHUITEMA andANTHEA JANE CONNOR as executors ofthe willPlaintiffs/First Counterclaim DefendantsAND SARAH SCHUITEMAFirst Defendant/First Counterclaim PlaintiffROBERT PAUL SCHUITEMASecond Defendant/Second CounterclaimDefendantAND JOHN JAMES SCHUITEMASecond Counterclaim PlaintiffSUSAN ELISABETH SCHUITEMAThird Counterclaim PlaintiffHearing: Formal proof – on the papersCounsel: P R W Chisnall and D W Ballinger for Plaintiffs and FirstCounterclaim DefendantsJudgment: 13 June 2023JUDGMENT OF RADICH JIntroduction[1] Elizabeth Petronella Schuitema, who was known as Leisha (Leisha), died on27 February 2021. In her most recent will, made in July 2019, she appointed her son,Robert Paul Schuitema (Robert) and her solicitor, Anthea Jane Connor (Ms Connor)as executors and she left her entire estate to Robert.[2] In earlier wills, she had given sums of money to her five grandchildren and hadbequeathed jewellery to two of her grandchildren.[3] Leisha had five grandchildren: Robert's two sons, Martin Schuitema andBen Schuitema, and the children of her other son, Dick Schuitema (now deceased) –Sarah Schuitema (Sarah), John James Schuitema (John) and Susan ElisabethSchuitema (Susan).[4] When, on 6 April 2021, Robert and Ms Connor, as executors of the 2019 will,applied for probate in common form, Sarah lodged a caveat against the grant. TheCourt directed the application to be brought in solemn form1 which saw the filing ofthis proceeding in August 2021.[5] Sarah filed a statement of defence pleading that Leisha was subject to undueinfluence on the part of Robert when she made her 2019 will and that she lacked therequisite capacity to execute the will. She sought that the will be set aside. Sarah thenfiled a counterclaim under the Family Protection Act 1955 and the Law Reform(Testamentary Promises) Act 1949. John and Susan joined the proceeding ascounterclaimants.[6] Ahead of the trial of the proceeding, which was set down for 1 May 2023, theparties reached a settlement. The counterclaims were discontinued, the statement ofdefence against the grant of probate was withdrawn and Sarah's caveat was removed.In a consent memorandum of 27 February 2023, the following orders were sought:1 Schuitema and Connor v Schuitema & Ors HC Wellington CIV-2021-485-489, 21 June 2021(Minute of Simon France J).(a) a declaration that the 8 July 2019 will of Elisabeth Petronella Schuitemais valid; and(b) an order that probate of the 8 July 2019 will be granted in solemn formwith Robert Paul Schuitema, of Sydney, Australia, Company Directorand Anthea Jane Connor of Wellington, Solicitor, appointed asexecutors and trustees.[7] In a minute dated 14 March 2023 Grice J vacated the trial date and directedthat the application for probate in solemn form proceed by way of formal proof, withthe executors to file and serve an affidavit and submissions in support.2 The appellantsfiled and rely on the affidavits of Ms Connor and Dr Chitra Karunanidhi.[8] I am satisfied that the orders sought by the plaintiffs are appropriate for thereasons I give below.BackgroundLeisha's wills[9] Leisha executed four wills. The first was prepared in October 2003 followingher separation from her husband. Robert and Dick were appointed as executors. Thewill made bequests of jewellery to her two granddaughters Sarah and Susan. Theresidue of the estate was left to Robert and Dick in equal shares.[10] The second will, executed in November 2011, appointed Ms Connor andRobert as executors (Dick, having passed away in 2004). The 2011 will bequeathed adiamond ring to Sarah together with paintings and furniture. It bequeathed jewelleryand a dinner set to Robert's wife, Margaret Schuitema, and it gifted $75,000 toLeisha's sister`, Ineke Benjes-Nijisse. The residue of her estate was to go to Robert.Leisha had considered making gifts of AUD 20,000 to each of her grandchildren but,ultimately, decided against that.2 Schuitema and Connor v Schuitema & Ors HC Wellington CIV-2021-485-489, 13 March 2023(Minute of Grice J).[11] The third will was executed in September 2017. Robert and Ms Connorremained the executors of the estate. The will bequeathed the diamond ring to Leisha'sniece Pauline Reardon (with the intention – although not specified in the will – that itwould eventually be passed on to Sarah) and each grandchild was to receive $40,000.The residue was to go to Robert.[12] The final will is dated July 2019. It appointed Robert and Ms Connor asexecutors, gifted all chattels to Robert (any unwanted items going to his sons) and leftthe residue of the estate to him (if he died before Leisha, then the residue would go tohis sons in equal shares). It removed all gifts to the grandchildren. The diamond ringwas no longer bequeathed to Ms Reardon.Execution of the 2019 will[13] The events leading up to the execution by Leisha of her 2019 will is discussedin more detail in the sections that follow but, for the purposes of the narrative at thispoint, a general description is provided of events in June and July 2019.[14] Leisha suffered a stroke on 3 June 2019 and was admitted to hospital. Shepresented with a range of issues affecting her mobility and vision but, by the time ofher discharge on 14 June 2019, her condition had improved materially and she movedinto the hospital facility at Rita Angus Retirement Village.[15] At Leisha's request, Robert arranged for Ms Connor to visit Leisha at theretirement village for the purpose of organising certain aspects of her affairs. A newenduring power of attorney (EPOA) was to be considered together with papers thathad been received relating to an occupation right for Leisha for a serviced apartmentat the retirement village.[16] Ms Connor and her secretary met with Leisha at the retirement village on25 June 2019. Robert joined for the start of the discussion and then left Ms Connor todiscuss Leisha's affairs in private. It is Ms Connor's recollection that Leisha seemedher usual "astute self" and that Leisha raised the issue of her will. She no longerwanted to leave anything to her grandchildren in her will and wanted to gift herdiamond ring to her daughter-in-law – Robert's wife. It is Ms Connor's evidence thatshe explained the potential implications of this decision and that she would need towrite to Leisha's general practitioner (GP) to ensure that Leisha understood thechanges she was proposing.[17] Ms Connor wrote to Leisha's GP, Dr Karunanidhi, on 26 June 2019.Dr Karunanidhi visited Leisha on 28 June 2019 in private and interviewed her aboutthe proposed changes to her will and the EPOA. Dr Karunanidhi's evidence is thatLeisha explained the changes she wanted to make to her will and her reasons forwanting to make an EPOA in favour of Robert, which included a concern that herhealth might deteriorate further. After assessing Leisha and consulting with a geriatricconsultant, Dr Karunanidhi concluded that Leisha had the required mental capacity toexecute a new EPOA and make the changes to the will. A certificate recording hisopinion was signed on 1 July 2019 and sent to Ms Connor.[18] Ms Connor arranged to meet with Leisha again on 8 July 2019. She met withLeisha in private, read her will aloud to her and explained the changes. It isMs Connor's evidence that Leisha confirmed the changes to reflect her wishes, thatLeisha was fully aware of what she was doing and that she understood the changes.Procedural principles[19] If a caveator raises sufficient grounds to establish that a full inquiry isappropriate3 an application for letters of administration needs to be made in solemnform. Such a process requires formal pleadings and a fully contested hearing.4 TheCourt may only grant probate if it is satisfied that the testator had capacity and that,otherwise, the will was properly made.[20] Given the settlement described in [6] above, the Court is hearing theproceeding by way of formal proof under r 15.9 of the High Court Rules.3 Which is the case here, as directed in Schuitema v Schuitema & Ors, above n 1.4 Jurisich v Harris [2016] NZHC 525, [2016] NZAR 754 at [7].[21] The obligation is on the plaintiffs to file affidavit evidence establishing, to theCourt's satisfaction, the cause of action relied on.5 The plaintiffs are not required toengage with any affirmative defence, set off, or counterclaim.6[22] A will is valid if it complies with s 11 or is declared valid under s 14.7 Section11 requires the will to be in writing, signed and witnessed as described in subss (3)and (4), and to provide evidence of compliance with subs (4) in the ways described insubs (5).8Assessment[23] While, as mentioned in [21], in a formal proof process, the plaintiffs are notrequired to engage with affirmative defences or counterclaims, in circumstances inwhich the first defendant and the counterclaim plaintiffs have raised (although theyhave now withdrawn) issues about testamentary capacity and undue influence, I doneed to consider those matters when determining whether the will has been properlymade.Legal principles – testamentary capacity[24] The principles relating to the assessment of testamentary capacity were set outby the Court of Appeal in Woodward v Smith.9 There, the Court re-stated the principleslaid down many years ago in Banks v Goodfellow:10(1) Because it involves moral responsibility, the possession of theintellectual and moral faculties common to our nature is essentialto the validity of a will.(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 theextent of the property of which he is disposing;(ii) is able to comprehend and appreciate the claims to which heought to give effect;5 High Court Rules 2016, r 15.9(4).6 Ferreira v Stockinger [2015], NZHC 2916 at [33]–[36].7 Wills Act 2007, s 7.8 Section 11.9 Woodward v Smith [2009] NZCA 215 at [19]. They were confirmed and repeated by the Court inLoosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19].10 Woodward v Smith, above n 9, at [19], citing Banks v Goodfellow (1870) LR 5 QB 549.(iii) be free of any disorder of the mind which would poison hisaffections, pervert his sense of right, or prevent the exerciseof his natural faculties; that no insane delusion shallinfluence his will in disposing of his property and bringabout a disposal of it which, if the mind had been sound,would not have been made.(5) In deciding upon the capacity of the testator to make his will, it isthe soundness of the mind, and not the particular state of the bodilyhealth, that is to be attended to. The latter may be in a state ofextreme weakness, feebleness or debility and yet he may haveenough understanding to direct how his property shall be disposedof; his capacity may be perfect to dispose of his property by will,and yet very inadequate to the management of other business, as,for instance, to make contracts for the purchase or sale of property.(6) A testator who has reflected over the years on how his propertyshould be disposed of by will is likely to find it less difficult toexpress his testamentary intentions than to understand some newbusiness.(7) Testamentary capacity does not require a sound and disposingmind and memory in the highest degree; otherwise, very few couldmake testaments 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 theremay be enough left clearly to understand and make a soundassessment of all those things, and all those circumstances, whichenter into the nature of a rational, fair and just testament.(9) But if that standard is not met, he will lack capacity.[25] Applicants for probate do not need to establish that the will maker hadtestamentary capacity, unless there is some evidence raising lack of capacity as atenable issue.11 Because, here, there is evidence which raises testamentary capacityas a tenable issue, the plaintiffs have the onus of satisfying the Court, on the balanceof probabilities, that the will maker did have testamentary capacity.12Discussion[26] The statement of defence filed by Sarah called into question Leisha'stestamentary capacity at the time the 2019 will was executed as she "had a stroke on11 Bishop v O'Dea (1999) 18 FRNZ 492 (CA) at [3].12 Loosley v Powell, above n 9, at [20], citing Bishop v O'Dea, above.3 June 2019 causing her short term memory loss, 40% vision loss and dementia". Theplaintiffs submit that the evidence establishes clearly that Leisha had testamentarycapacity to the requisite standard when she executed the 2019 will.[27] The hospital records recorded that Leisha presented with blurry vision to herright side – found to be a stroke – and that she had unsteadiness and general mobilityissues. It recorded that she was "at risk of delirium" and that there was some evidenceof reduced cognitive ability. Cognitive testing indicated a "significant level ofcognitive impairment". However, the hospital discharge record then notes that Leishahad developed adequate and improved mobility to perform daily living activities,making her a candidate for rest home care.[28] On 14 June 2019 Dr Dodd, another GP at Leisha's practice, visited Leishafollowing her request for a "do not resuscitate" listing after cardiac arrest. Dr Doddnoted that Leisha was repeating things every five to 10 minutes, indicating impairedshort-term memory, but that her long-term memory was good. Dr Dodd noted thecognitive testing outcomes mentioned in [27] and suggested that the testing berepeated as Leisha's condition could improve.[29] Dr Karunanidhi assessed Leisha shortly before she executed the will on28 June 2019 using a standard capacity interview approach informed by her practiceand by a GP information booklet. Dr Karunanidhi informed herself of the "collateralinformation" that triggered the capacity assessment, conducted the interview withoutfamily present and then consulted with a geriatrician to confirm her view. Her opinionwas that Leisha understood the effect of the will changes and communicated clearreasons for removing her grandchildren; that she was aware of the consequences (apotential claim against her estate); that she understood the nature of her assets andfinancial position; that she showed insight into her condition and understood that itcould deteriorate; and that she demonstrated a reasonable level of cognition andmemory function at the interview.[30] Ms Connor and Dr Karunanidhi have both discussed in their evidence thereasons Leisha gave them for including specific bequests for her grandchildren, as hadbeen the case in her 2017 will. The issue of bequests to Leisha's grandchildren hadbeen a feature of the previous wills. Leisha had equivocated in her previous wills overbequests for her grandchildren. As mentioned in [10] above, she had consideredgiving her grandchildren monetary gifts in her 2011 will but, ultimately, decidedagainst it, telling Ms Connor that she did not want to leave them anything as it was"against my nature to give them anything" on the basis that she had not expectedanything when her grandfather had died and she did not think that her grandchildrenwould expect anything when she died. In her 2017 will, she decided that she wouldgive $40,000 to each of her five grandchildren but, when it came to considering theterms of her 2019 will, she decided that those gifts would not be maintained.[31] Leisha was explicit with Ms Connor that she did not want to leave hergrandchildren anything from her estate, saying that she no longer had any meaningfulrelationship with John, Sarah or Susan.[32] While Leisha had, in her 2017 will, bequeathed a diamond ring to her niece,her instructions to Ms Connor in 2019 were that the ring should be retained by herfamily; explaining how grateful she was to her son and his wife Margaret for the loveand support they had shown to her over the years.[33] While, when Leisha was admitted to hospital in June 2019 following herstroke, cognitive testing indicated cognitive impairment, I accept that the testingoutcomes are not a conclusive indicator that she lacked testamentary capacity fiveweeks later when the will was executed. As Dr Karunanidhi explained, the cognitivetesting in question is a screening test for cognition and does not indicate whether aperson has capacity to make a particular decision. Further cognitive testing was notconsidered as it was not standard practice to conduct testing of that sort in the courseof a capacity assessment. I accept that a risk of delirium is not the same as a diagnosisof delirium.[34] Moreover, it can be seen from the evidence that, while Leisha's cognitivefunctioning was reduced with the stroke, it was considerably more acute at the time ofher hospital admission than was the case as her condition improved. By the time shewas discharged from hospital and moved to the retirement village, the evidence showsthe improvement to be marked.[35] Furthermore, as the principles set out in Woodward v Smith provide, a testatordoes not need to possess the same capacity as possessed by them previously and"testamentary capacity does not require a sound and disposing mind and memory inthe highest degree".13 While the stroke did cause Leisha to have reduced vision, thisis a factor relating to her bodily health, not to her mental capacity.14[36] I am satisfied, on the balance of probabilities, Leisha had testamentary capacitywhen she executed her 2019 will. She understood the nature of the act and its effects,was able to comprehend and appreciate the potential claims against her estate and was,in terms of the principle mentioned in paragraph [24] above, free of any "disorder ofthe mind".Legal principles – undue influence[37] Undue influence will be found to exist where a will maker is subject to mentalcoercion to make a will in particular terms. It goes beyond mere persuasion andrequires positive proof that the coercion overpowered the volition of the will maker.The party alleging undue influence has the burden of proving, on the balance ofprobabilities,15 that the power to influence was exercised and that the will that resultedwould not have been created but for the exercise of that influence.16[38] Circumstances bearing directly or indirectly on the free will of the will makerare relevant and include illness, pain and suffering, physical weakness and mentaldeterioration, and dependency on others in legal, business, social, medical and/ordomestic matters.17 The preparation of a will by an independent solicitor, whoconferred with and advised the will maker in private, is a relevant consideration inshowing that the will maker understood the decision they were making.18[39] It was pleaded in the statement of defence that Leisha was under undueinfluence to attend the meeting referred to in [16] above, that she could not say certain13 Woodward v Smith, above at n 9.14 As described in the factors set out in Woodward v Smith and Banks v Goodfellow, above n 9.15 Loosley v Powell, above n 9, at [35].16 At [36].17 Halse v Lawrey [2023] NZHC 223 at [35].18 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [35].things as Robert was present at the beginning of the meeting, that she had expressedstrong disagreement with her move to a retirement home and that her finances were socontrolled by Robert that she needed to agree with everything he said.[40] While the plaintiffs do not need to disprove allegations of undue influence, Inevertheless consider the evidence to be clear in showing that Leisha was not subjectto undue influence from Robert.[41] The factors that had been raised as being relevant to the undue influence issuesare these: Robert had financially supported Leisha over the years, had a power ofattorney for Leisha's affairs (and was to be granted, through the EPOA, full powersover her affairs) and had arranged the meetings between Ms Connor and Leisha.Dr Karunanidhi's evidence was that Leisha sought an EPOA to prevent other familymembers from taking advantage of her financially. The emails exhibited inMs Connor's evidence show that Leisha asked Robert to engage a face-to-facemeeting with Ms Connor. He then arranged the follow-up meeting at the request ofMs Connor who had received the certificate from Dr Karunanidhi. As Ms Connor saidin her evidence:From my observations of Leisha there was no question of any pressure beingexerted by her son Robert. Leisha had freely raised the topic of amending herwill at the 25 June meeting, after Robert had left me to consult with Leisha inprivate. Robert's involvement in arranging meetings with Leisha was not inmy experience unusual given the circumstances of Leisha's recent stroke.Family members will often be involved in setting up meetings when a relativehas had their health take a turn for the worse.[42] I accept that Leisha explained freely her desire to change the will and herreasons for doing so at the meeting of 25 June 2019 with Ms Connor, when she wasassessed by Dr Karunanidhi on 28 June 2019 and when she met with Ms Connor againon 8 July 2019. At each of these meetings, Robert was not present during discussionsabout the will. Moreover, Leisha was given independent advice about the effect of thechanges to her will; another factor that points away from undue influence.1919 Green v Green, above.[43] Accordingly, I am satisfied on the balance of probabilities that Leisha was notsubject to any form of undue influence from Robert, or otherwise, when she signedher 2019 will.[44] For all of these reasons, I am satisfied that a grant of probate of the 2019 willshould be made in solemn form. I accept that it is properly executed, valid anddispositive.Result[45] I make the following orders:(a) The will dated 8 July 2019 is proved in solemn form to be the last willof Elizabeth Petronella Schuitema.(b) Probate of the last will of Elizabeth Petronella Schuitema is to issue toRobert Schuitema and Anthea Jane Connor.(c) Costs are to lie where they fall._____________________Radich JSolicitors:Oakley Moran, Wellington for Plaintiffs and First Counterclaim Defendants