New Zealand Case Law: Decisions & Judgments

Topic

Testamentary capacity

Legal area

Court

13 Dec 2023

ESTATE OF ROSS [2023] NZHC 3681

Citation

[2023] NZHC 3681
Court

High Court

The without‑notice application was declined because an affected party (the deceased's third son) had not been formally served and there was insufficient evidence to satisfy the Court that the handwritten instructions reflected the deceased's testamentary capacity and intention; formal service and additional evidence were required before the Court could exercise its s14 jurisdiction to cure executional defects.
14 Nov 2023

Estate of Williams [2023] NZHC 3209

Citation

[2023] NZHC 3209
Court

High Court

On the balance of probabilities the deceased had testamentary capacity when executing the will dated 4 September 2017 but lacked capacity when executing the will dated 9 February 2021; therefore the 4 September 2017 will is the last valid will and probate is granted to Fern Michele Mackenzie, with costs payable from the estate.
10 Nov 2023

ESTATE OF TUI WENDT [2023] NZHC 3179

Citation

[2023] NZHC 3179
Court

High Court

On the balance of probabilities the document reflected the deceased's testamentary intentions and she had capacity when it was made as evidenced by two medical certificates and the solicitor's contemporaneous observations; the failure of witnesses to sign in the will-maker's presence did not undermine those intentions, therefore the Court declares the document a valid will under s14 of the Wills Act 2007.
16 Oct 2023

ESTATE OF Y SOMMERVILLE [2023] NZHC 2894

Citation

[2023] NZHC 2894
Court

High Court

Where the purported will was executed by a third party under an enduring power of attorney that did not authorise creating a will and the donor lacked testamentary capacity, s 14 Wills Act 2007 cannot be used to validate the document; the application for validation must be dismissed.
6 Oct 2023

PUBLIC TRUST v FRAEI & ORS [2023] NZHC 2796

Citation

[2023] NZHC 2796
Court

High Court

On the balance of probabilities the 10 April 2008 will was executed with requisite testamentary capacity because it preceded the documented rapid cognitive decline (post-Jan 2009), was supported by contemporaneous instructions taken by an experienced Public Trust officer, and the changes made were not irrational or unexplained; wills executed in 2009–2010 lacked requisite capacity based on medical evidence
21 Sept 2023

GARRIOCK v MARSHALL [2023] NZHC 2614

Citation

[2023] NZHC 2614
Court

High Court

The caveat was lodged without a sound basis, medical records (provided by consent) showed no testamentary capacity issue, the caveat was only withdrawn months later after depleting estate funds, and therefore the respondent failed and must pay costs to the applicant on a 2B basis of $7,170.
6 Sept 2023

GORRINGE v POINTON AND HENDERSON AS EXECUTORS OF THE ESTATE OF JOAN BLAIR GORRINGE [2023] NZCA 426

Citation

[2023] NZCA 426
Court

Court of Appeal

The Court of Appeal held that costs consequences of the successful appeal on undue influence must reflect that result: the High Court costs orders as between the appellants and the first-named respondent (Judith) were set aside; Judith was ordered to pay the appellants' High Court costs of NZD 73,093.75 (after applying a 15% reduction from scale costs and allowing a 50% uplift for failure to accept a later Calderbank offer on specified items) and Court of Appeal costs of NZD 16,730 plus reasonable disbursements; the High Court costs orders as to the second-named respondent (Henderson) were un…
31 Aug 2023

ESTATE OF HENRY SOLE [2023] NZHC 2537

Citation

[2023] NZHC 2537
Court

High Court

On the balance of probabilities the Court was satisfied that the testator had requisite testamentary capacity when executing the 27 January 2011 will because contemporaneous, on‑the‑spot notes and testimony of the will preparer (Mr F) demonstrating careful considered instructions, combined with evidence the testator's schizophrenia was medicated and he was managing in the community, outweighed the inconclusive retrospective medical opinions; accordingly probate in solemn form was granted for the 27 January 2011 will.
28 Aug 2023

SONIA MEREDITH v PAUL MEREDITH [2023] NZHC 2354

Citation

[2023] NZHC 2354
Court

High Court

On the cumulative evidence—the Mini-ACE failure, medication-related drowsiness, defects in execution (uninitialled pages and amendment), delay between drafting and signing, and admissions in the drafter's emails indicating influence—the 2021 instrument was not a valid will and did not replace the 2004 will; accordingly probate is to be granted in respect of the 2004 will and Sonia, as sole executor named in the 2004 will, is appointed administrator of the estate.
25 Aug 2023

PUBLIC TRUST v FORSTER [2023] NZHC 2339

Citation

[2023] NZHC 2339
Court

High Court

On the balance of probabilities the draft will reflects the deceased's testamentary intentions because instructions were given and recorded on the same day they were drafted, a medical certificate confirmed testamentary capacity, contemporaneous notes and corroborating witness evidence aligned with the draft, no prior will was located, and beneficiaries consented; accordingly the draft will is validated under s14 Wills Act 2007.