As noted at [20(a)] of Newton v Dunasemant “While the dramatic change in the terms of the 2021 will from those of the 2016 will might give rise to an initial presumption of undue influence, Christine’s evidence and that of Mr Fitzgerald rebut that presumption by elaborating on the disconnect between Fraser and Mrs Newton and the falling out between Michael and Mrs Newton regarding the sale of Mrs Newton’s home to Michael and the dispute that arose out of that sale.”
Christine and Mr Fitzgerald’s evidence related to the deceased’s “mental acuity and capacity” at the time the 2021 will was made. By contrast the medical evidence was, amongst other things, based on a Mini-ACE cognitive assessment undertaken more thn a year later. Further the posthumous assessment did not have the benefit of notes from Mrs Newton’s regular doctors one of whom who observed six months after the 2021 will was executed that “In general she is a well appearing 90 year old female in no obvious distress, alert and orientated … patient has 5/5 strength throughout all extremities and no oedema noted today.”
While it may be considered prudent or good practice to obtain an assessment of capacity when a will-maker’s will might be considered controversial or susceptible to challenge; the counter-factual is that if the legal adviser sees no call to do so; and can substantiate that view; that may be sufficient. As noted at [33]:
Also see Hooper v Thackwell where the contrary view was reached with respect to capacity in part due to the view taken by the lawyer who was not satisifed that he could obtain proper instructions.
Vicki Ammundsen is presenting a webinar on wills and testamentary trusts that will explore the requisite capacity considerations. For more information see Trust Series 2025 – Wills and Testamentary Trusts and:
References:
- Newton v Dunasemant [2025] NZHC 2618
- Hooper v Thackwell [2025] NZHC 648
- Hooper v Thackwell [2024] NZHC 2398
Matters of Trust 
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