Will validation declined

In Estate of Clement Grau J declines to validate a will that was made shortly before the deceased died from surgical complications. The application, which was unopposed, proceeded in the papers. An affidvit filed in the proceedings by the deceased’s former partner raised “red flags” regarding the:

• deceased’s health and mental state
• ommission of a stepchild named in an earlier will
• identity of the executor, and
• failure to mention certain assets.

As noted at [8]:

[8] On 29 April 2025, when Ms Scott and Mr Davie visited Mr Clement, he asked her if she could prepare his will. She says he told her he wanted his assets protected from Ms Montaperto if he died. She says he told her what he wanted, and she wrote it down exactly as he said it. She then got him to confirm it was what he wanted. She took her notes to a law firm “to arrange for his will to be done properly” and after meeting with the lawyers she rewrote the will. Although when she visited Mr Clement, she said he seemed quite tired, would close his eyes and mumble before waking and say he was dreaming and “that didn’t happen”, she was confident he knew what he was asking her to do.

The history around the will and the views formed regarding Mr Clement’s testamentary capacity are explained as follows:

[14] Although Mr Clement was stable throughout his hospital stay, “from a bleeding point of view,” he had had a prolonged period of intubation and ventilation followed by a “very substantial post-operative insult” and “during most of the time we were aware of, he was disoriented”. This meant he was unable to be clear about where he was or what was going on around him. The surgeon said that “from this point of view,
we know that making critical legal decisions in the presence of stress, trauma, bleeding shock or an episode of ventilation is going to be flawed”. He expressed his view that the fact Mr Clement remained confused throughout his stay meant that “if this goes to court the result would be contestable in terms of his capacity”.
[15] The surgeon then acknowledged that general surgeons “are not experts at capacity”, and said in answer to the questions he had been asked:
(a) he assumed that Mr Clement understood the importance of making his last wishes known.
(b) he had no idea whether Mr Clement understood what his estate involved and who would make claims on his estate.
…

[17] Ms Scott said she was surprised by this letter because by the time Mr Clement was on the general ward when they visited him, he was aware of what was going on and she and Mr Davie could talk to him as they always had. She acknowledged Mr Clement was often in pain and quite drowsy at times, but she was never concerned he did not understand what he was doing in respect of the will she drafted for him.

In declining to validate the will the Grau J made the following observations:

• the extent of any defection is not relevant in the context of an application for validation [27]
• failure to list all assets is unremarkable, the inention to dispose of assets is what is required [8]
• appointing a close friend as an executor is unremarkable
• the court had to be satisfied regarding capacity in and of itself. As set at out [29] and [30]:
  • [29] However, I am not prepared to exercise the Court’s discretion to validate the will. The principal reason is that I am unable to conclude that the applicant has proved Mr Clement had sufficient testamentary capacity at the time he signed the document, given the medical evidence about Mr Clement’s condition in the context of his very significant and very recent surgery shortly before he signed his will.
  • [30] I am reinforced in this conclusion by one aspect of the purported will. Although a will does not need to be fair before a court will validate it, I note here Ms Montaperto’s concerns about the exclusion of Nirvana who was Mr Clement’s stepson. Her evidence was that Mr Clement raised Nirvana since Nirvana was a baby, Nirvana was never told that Mr Clement was not his biological father, and she is certain Mr Clement would not have treated Nirvana differently. While that apparent unfairness would not of itself be a reason not to validate the will, I consider the will’s requirement for the two children of Mr Clement and Ms Montaperto, Landen and Aspen, simply to “look after” Nirvana appears somewhat odd, and contrary to the submission that the will’s terms are consistent with terms that “might be dictated by a wise and just testator.” That is so, given the very broad wording, and the respective ages of the children. When Nirvana is 15, Landen 10, and Aspen, only two years old, it would appear very unclear how they would “look after” their older brother in the short or medium term, and in the longer-term, it might be thought as incapable of having any effect.

It appears that the court was also concerned as to the rationality of the will in its face, which is explored at [30].

References

• Estate of Clement [2025] NZHC 3711
• Public Trust v Fairbain [2023] NZHC 2605
• Singleton v Marshall [2019] NZHC 2486 at [25]–[26]
• Re Campbell (deceased) [2014] NZHC 1632,