Red flags

Churchman J’s decision in Lane v Li, which runs to 239 paragraphs over 46 pages, relates to allegations that the deceased did not have testamentary capacity when a will was made together with an allegation of undue influence. As noted at [31]:

[31] The Court is also in the unusual situation of having available to it the videos recorded on the phones of James and Lily which show what actually took place at the time of the making of the will. The Court is therefore in the position of being able to see exactly what happened during the process of the will being made.

The decision in Lane v Li warrants reading in full as the court carefully traversed the relevant time-line. Numerous red flags were overlooked by a former lawyer who drafted the will in question under the instruction of the person who stood to gain the most from this will; rather than the will-maker who was suffering from delirium and confusion at the relevant times, and at best was partially conscious. As noted at [235]:

[235] Far from Paul acting as an independent lawyer protecting Frank from the effects of the influence being exerted on him by the beneficiaries, Paul does nothing to assure himself of Frank’s capacity to understand what it is he is doing and is happy to take direct instructions from both Lily and James when Frank’s drowsiness, incoherence and apparent lack of ability to express his views in coherent sentences
should have sounded alarm bells.

[236] In the case of Gorringe v Pointon Walker J, in circumstances far less egregious than this, noted that a failure to conduct a capacity test was ‘regrettable’.

[237] In term of the language used by the Court of Appeal in Green v Green I am satisfied that, on the balance of probabilities, undue influence has been established. That, in addition to lack of capacity, is a ground for invalidating the 8 April will.

Another relevant consideration was the competing medical evidence. In this regard as set out at [193] to [199]:

[193] I turn now to the medical evidence. For the reasons that I will set out, I accept the evidence and opinions of Dr Read-Smith over those of Dr Cooper. Of the two, Dr Read-Smith had the more relevant qualifications and experience. The experience that Dr Cooper put forward as justifying his opinion related largely to his work as a junior doctor in the hospital for a period of some months 30 years previously.

[194] Two aspects of Dr Read-Smith’s evidence differed in important respects from Dr Cooper’s. Dr Read-Smith relied on the observations made by those hospital staff who observed exactly what was happening for Frank on the 7th and 8th of April and made notes about it. Those notes recorded that Frank was agitated, confused, aggressive or attempting to rip lines out. They are observations that can validly be
made by a nurse or a patient assistant. I accept that Dr Read-Smith was entitled to rely on those observations.

[195] There is no rational justification for Dr Cooper’s view that it has to be a doctor who is recording this behaviour before the notes can be regarded as an accurate record of what the person making the notes actually saw. The attempts by Dr Cooper to distinguish those observations and, in particular, his claims that the people making them probably copied them from entries above and that he needed something more authoritative that nursing notes to accept what was recorded are simply not credible.

[196] The observations of the Patient Attendants as to the state that Frank was in on 7/8 April are also consistent with the records of the medication that was given to Frank at those times. Dr Read-Smith set this out at [28] of her affirmation of 29 September 2023 Frank received haloperidol at 02:30am on 8 April. He had received lorazepam in both the morning and evening of 7 April. He was also on fentanyl and bupivacaine on 8 April. He would not have been given these powerful medications unless the doctors caring for him thought that he needed them. In addition to being used to treat delirium and agitation, as Dr Read-Smith deposed, the drugs themselves could have contributed to Frank’s confusion and decreased alertness on 8 April.

[197] The second advantage that Dr Read-Smith had that Dr Cooper didn’t is that, on 2 May, she actually physically conducted a capacity assessment of Frank. In terms of the guidelines for assessing capacity that both Dr’s Read-Smith and Cooper agreed were important, conducting a physical assessment was a critical component.

[198] It is also clear that some of the evidence which Dr Cooper says he based his opinion on was a hearsay statement from an unidentified person. Little weight can be placed on that sort of evidence. He was also mistaken that the notes taken by Vincent were taken prior to surgery when in fact they were taken the day after, when delirium was most likely. He was also mistaken about the inconsistencies between the 8 April and the notes taken by Vincent on 4 April.

[199] I also find Dr Read-Smith’s evidence about what she observed on the videos to be more consistent with what is actually shown in those videos than Dr Cooper’s evidence. The videos clearly showed that Frank was drowsy, many of the answers to questions that were asked of him were unintelligible; the answers or instructions that he gave were in many cases a product of direct prompting or suggestion by either Lily or James or leading questions asked by Paul.

References:

• Lane v Li [2024] NZHC 3663
• Gorringe v Pointon [2022] NZHC 342
• Green v Green [2016] NZCA 486