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Capacity

Common and solemn

Probate, or proving, of a will can be made in common or solemn form.  As noted at [4] in Young v Young “Probate in solemn form is generally irrevocable; probate in common form is revocable.”

By way of general observation probate in common form is what is most commonly sought.  Probate in solemn form is appropriate where there are “contentious aspects of the will’s validity.”

Young v Young is interesting in that it invites the court to determine whether there will be probate in solemn form of a later will or probate in common form of the earlier will (which will not have been revoked if probate is not granted with respect to the later will.)

The case provides useful guidance regarding considerations as to validity.  As noted at [6] the court does not need to know why a will was drafted, only “whether there is any foundation to doubt its validity.”

The will-maker in question was suffering from advanced dementia, as confirmed by her general practitioner.  However, the witnesses to the will-maker’s signature gave evidence of her being engaged and responsive before signing the later will.  This was contrasted against other contemporary evidence as to the will-maker’s loss of capacity.

Being satisfied on the balance of probabilities that the will-maker lacked testamentary capacity, the court found that the later will was not valid and accordingly that the earlier will was not revoked.

The case is useful for demonstrating the ability to address probate in solemn and common form in the same proceedings; and a reminder that a will-maker may be able to respond to historical prompts such as photographs, but nevertheless at the same time may not possess the requisite testamentary capacity to enter into a new will.

Another example of probate in solemn form is provided by Public Trust v Atwool where an application was made for probate in common form.  As the death certificate referred to the deceased having suffered for dementia for eight years prior to his death ( and the deceased’s last will was made seven years prior), the court required that probate be sought in solemn form.  In that case, as with Public Trust v Dollimore there was ample medical evidence questioning capacity.  However, as the will instructions were cogent and were taken by an experienced practitioner (in both Atwool and Dollimore a senior member of staff at Public Trust), on balance Mander J was satisfied that the will-maker had testamentary capacity noting as follows:

[17] While the apparent fluctuation in Mr Atwool’s mental state does raise the issue of testamentary capacity, I do not consider the concerns raised by Dr Vause are sufficient to support a finding that Mr Atwool did not understand the contents and effect of the 2010 will, or that there is any basis to suggest, in the words of Simon France J, that his affections had been “poisoned” or his “sense of right” distorted. Mr Williams’ evidence is helpful in this regard. Having worked as a Public Trustee officer for some 11 years at the time the 2010 will was prepared and signed, and some 16 years overall, Mr Williams has had ample experience in dealing with the elderly and of the need to establish capacity when preparing wills on their behalf. While Mr Williams’ evidence must be considered in light of the fact he is not a medical expert, I am satisfied he would not have proceeded with the will if he had any concerns about Mr Atwool’s testamentary capacity. His evidence was that he would not have proceeded with the meeting if he had detected any sign of dementia and that he must have been happy with Mr Atwool’s ability to give instructions about his will.

[18] Furthermore, and as noted by Mr Williams, the changes Mr Atwool requested for his will were logical. The 2007 will left his estate to his wife and, in the event she predeceased him, to his children. Given she had recently passed away, he wished to update the will so his estate was left directly to his children in equal shares. All four of Mr Atwool’s children were given equal entitlements under the 2007 will, with the only difference being that under the earlier will, his grandchildren were as a group also to receive an equal share in the residue of the estate if the gift to Mrs Atwool failed. Under the 2010 will, the grandchildren would only receive a share if the gift to their parents failed. The 2010 amendments were sensible and logical and raise no concern about Mr Atwool’s ability to understand the content and effect of his will. Those changes effectively retained an equal and fair division of the estate between the four branches of the family.

[19] The present case has some similarities with the situation this Court dealt with in Public Trust v White. In that case, a number of witnesses including a Public Trust officer considered the deceased had testamentary capacity. This was challenged by evidence from a doctor who provided an opinion based on a review of medical records. Ultimately, the Court was not persuaded by the doctor’s conclusion. The Court referred to the Public Trust officer’s evidence as being “central” as she was the person who took the testator’s instructions and was present when the will was signed. It was noted that the officer had 12 years’ experience. However, it should be acknowledged that the officer’s evidence was also consistent with a number of other witnesses (including two doctors and a nurse) that was taken into account in determining testamentary capacity.

[20] Similarly, in Leppien v Public Trustee, this Court considered the evidence of two Public Trust officers in determining that the testator had capacity.10 Two officers, one with only some 12 months’ experience, but another with 13 years’ experience in the preparation of wills provided evidence. The Court accepted there was nothing observed by the least experienced employee to suggest a lack of capacity. Significantly, the other Public Trust officer, with his extensive experience was considered by the Court to be an important witness upon whom it was able to place reliance.

[21] Having considered and compared the two wills, the information provided by Dr Vause from his notes made around the time of the 2010 will, and Mr Williams’ evidence, I am satisfied on the balance of probabilities that at the time the 2010 will was executed Mr Atwool had testamentary capacity.

References:

  • Young v Young [2018] NZHC 3397
  • Wills Act 2007
  • High Court Rule 27.4
  • Public Trust v Dollimore [2018] NZHC 3316
  • Public Trust v Atwool [2020] NZHC 1228
  • Leppien v Public Trustee High Court Nelson CP21/00, 26 July 200
  • Public Trust v White [2012] NZHC 230

Discussion

One thought on “Common and solemn

  1. You may be interested to contrast this decision with Public Trust v Dollimore & Sowman [2018] NZHC 3316, another case involving the validity of a will where capacity was in issue. In this case the will maker was found to have capacity, notwithstanding that she was suffering from dementia at the time she gave her will instructions.

    Posted by Amanda Crehan | January 14, 2019, 10:18 am

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