Drip, drip

In De Rooy v Coleman Brewer J is tasked with determining the validity of a will not on account of any question as to testamentary capacity; but as to whether the will was procured by means of undue influence.

The will that is the subject of this enquiry is that of Mr Johan de Rooy who signed the disputed will on 11 June 2021 little more than two months before his death from brain cancer. This will left everything he owned to his former wife Mrs Coleman.

As set out at [3]:

[3] The plaintiff, Mr Michael de Rooy, is one of Johan de Rooy’s brothers. He pleads that the 2021 Will does not represent Johan de Rooy’s true testamentary intentions but was procured by the undue influence of Mrs Coleman. He asks the Court to declare the 2021 Will invalid and to grant probate for Johan de Rooy’s earlier will which is dated 19 October 2011 (the 2011 Will). This leaves the estate equally to Johan de Rooy’s four siblings.

Brewer J records that relevant legal principles as follows:

• Undue influence is “pressure of whatever character … that overbears the will of the testator
• The nature of the undue influence is not strictly defined, and the conduct considered ‘undue’ changes depending on the circumstances. It does not need to include actual threats of violence or use of force:
  • To make a good will, a man must be a free agent… On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity of threats, such as the testator has not the courage to resist, moral command asserted and yielded for the sake of peace and quiet, or of escaping from distress of the mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgement, discretion, or wishes is overborne, will constitute undue influence, [though] no force is either used or threatened.
• The individual actions of the influencer are important. However, undue influence also rests on the nature of the influenced party. Factors going to vulnerability include forgetfulness, confusion, dependence on the party said to have exerted influence, isolation, family conflict emotional dependence and mental or physical unwellness
• Undue influence is presumed evidentially in a situation where:
  • The person said to have been subject to undue influence placed trust and confidence in the other; and
  • The transaction in question called for explanation.
• A relationship of trust and confidence is presumed in circumstances such as care for an elderly or unwell person. A transaction which calls for an explanation is one that, failing proof to the contrary, is explicable only on the basis that undue influence had been exercised to procure it.
• Undue influence can also be proved directly by showing the actual influence on the transaction in question.
• The mental and physical strength of the testator (or lack thereof) are highly relevant in determining whether the pressure exerted did or would overbear the will. An ‘enfeebled’ testator may also be more susceptible to coercion.
• In Edwards v Edwards & Ors, in certain circumstances “simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will”
• Green v Green is the current leading authority and summarised the test for the court as: “it must be satisfied the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole.”

Significantly, De Rooy v Coleman is not about testamentary capacity and as stated by Brewer J at [15](b) “This is not a case where there is such delicacy in the evidence that the civil burden of proof, the balance of probabilities, will have to be applied anxiously. The parties’ cases are so greatly at odds that my factual findings will be decisive of the outcome.”

Brewer J carefully traverses the relevant history in a case where evidence was heard over five days. The medical evidence noted susceptibility to undue influence and indications of undue influence relating to Mr De Rooy’s medical history. As noted by Brewer J at [77] “In short, Dr Casey identified a number of “red flags.” That said, Brewer J considered that it was the evidence of what happened, rather than the medical evidence that determined the outcome.

At [82] to [87] Brewer J summarises the evidence as follows:

[82] I find that Johan de Rooy was a passive and gentle man. He had mental health difficulties revolving around depression and the effects of the stroke he suffered. Mrs Coleman, on the other hand, has a very strong and dominating personality. I find that Johan de Rooy was, throughout their relationship, in thrall to her.
[83] I accept that Johan de Rooy was never really out of contact with Mrs Coleman. The relationship continued to some extent in the period before the divorce and afterwards.

[84] I find that when he became terminally ill, Johan de Rooy became completely dependent on Mrs Coleman. Mrs Coleman took active steps to ensure that. It was she who instigated Johan de Rooy’s cancellation of the enduring power of attorney to Robert de Rooy, his dismissal of Ms Westenra as his lawyer, his withdrawal from his church, and ultimately, the making of the 2021 Will.

[85] Mrs Coleman, I find, has a propensity for creating a favourable narrative for her life in her dealings with others and in creating a favourable record of events in which she participated. I have no doubt that, when others were present, such as the very naïve (as I assess him) Reverend Watts, there was projected an image of marital support and harmony. But, behind the image there was a divorce — a matter never disclosed to Reverend Watts.

[86] Mrs Coleman, in her evidence, played a short video of Johan de Rooy created to be played at his funeral. In it, he praises Mrs Coleman and accepts he did not always treat her well. It was noticeable, however, that instead of looking into the camera his eyes cut repeatedly to the side of the room where, I infer, Mrs Coleman was present.

[87] In short, I find that Johan de Rooy was incapable of opposing Mrs Coleman when he was in her presence. His authentic voice is heard in the documents he prepared with Ms Westenra and in the email exchanges in 2020 with Robert de Rooy which [is reproduced in the decision].

De Rooy v Coleman highlights the value of careful legal representation, even where the advice cannot be acted on by the person who is being unduly influenced at the time. Brewer J concluded at [90] that:

[90] Against the relationship I have described, Johan de Rooy’s terminal ill-health, his isolation from other forms of support, his dependence on Mrs Coleman and her desire to have the Whangārei unit, I am satisfied well beyond the civil standard that the 2021 Will was procured by undue influence. It does not represent Johan de Rooy’s true testamentary intentions. His true testamentary intentions in the period before his death were those expressed to Ms Westenra, and they are substantially the same as his 2011 Will.

References:

• De Rooy v Coleman [2025] NZHC 3444
• Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [36]
• Alison Douglass, Greg Young and John McMillan (eds) Assessment of Mental Capacity: A New Zealand Guide for Doctors and Lawyers (Victoria University of Wellington Press, Wellington, 2020)
• Gorringe v Pointon (as executors of estate of Gorringe) [2023] NZCA 42 at [29].
• Edwards v Edwards [2007] EWHC 1119 (Ch) at [47].