Colin Richard Murray and Dale Malcolm Murray v Colin Richard Murray and Dale Malcolm Murray Hc

JurisdictionNew Zealand
CourtHigh Court
JudgePotter J
Judgment Date28 Mar 2012
Neutral Citation[2012] NZHC 545
Docket NumberCIV-2011-404-002625

[2012] NZHC 545

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-002625

In the Matter of the Estate of MABEL FLORENCE MURRAY

BETWEEN
Colin Richard Murray and Dale Malcolm Murray
Plaintiffs
and
Colin Richard Murray and Dale Malcolm Murray
Defendants
Counsel:

B M Stainton for Plaintiffs and Defendants

Application for grant of probate in common form for one of two wills — deceased executed will in 2005 — subsequently, executed another will in 2007 and a codicil in 2008 — conflict of evidence as to testamentary capacity of deceased — effect of policy of removing children from will where they predeceased testator — whether the deceased had testamentary capacity when she executed the 2007 will and 2008 codicil.

The issue was: whether the deceased had testamentary capacity when she executed the 2007 will and 2008 codicil.

Held: For the 2007 will and 2008 codicil to be admitted to probate, it had to be proved on the balance of probabilities that on each occasion of execution, the deceased retained the capacity to:

  • • know and approve the contents of the document; and

  • • know that she was making a will and the effect of doing so; and

  • • understand the extent of her property; and

  • • understand the moral claims on her estate.

Evidence of the sinking lid policy did not assist in explaining the intention of the deceased in relation to disposition in the various testamentary documents. Contrary to this policy of only providing for surviving offspring, the 2007 will provided for D's wife to share in the residuary estate. The deceased's son in law also had a share, notwithstanding that his wife had died prior to execution of the 2007 will. The codicil deleted provision for the son in law, but D's wife and C's wife remained beneficiaries. The policy was unclear, uncertain and unhelpful in explaining the dispositions. It did not provide a rational explanation for the codicil.

Despite observations by D, and the solicitor who attended the deceased for excecution of the 2007 will, that the deceased appeared to understand what she was doing when she gave instructions and executed the 2007 will and 2008 codicil, the medical evidence was to the contrary. The deceased's doctor, substantiated by medical assessments and reports, gave evidence to the effect that the deceased was cognitively disabled to the extent that she was unable to make the judgments and assessments necessary for a valid testamentary disposition. The solicitor's evidence was based on two brief visits to the deceased. He made no background inquiries and did not question the deceased to test her testamentary capacity. On the basis of brief, superficial, verbal exchanges he then arranged for the execution of the documents.

Although the deceased may have understood that she was signing a will and a codicil, it could not be inferred that she understood the effect of the 2007 will and the 2008 codicil, the extent of the property of which she was disposing and the moral claims to which she should give effect. It was not an issue of credibility. The witnesses were credible but had been operating in information vacuums. The evidence did not satisfactorily establish on the balance of probabilities, that at the time of execution of either the 2007 will or the 2008 codicil the deceased had testamentary capacity.

The 2005 will was admitted to probate.

JUDGMENT OF Potter J

TABLE OF CONTENTS

Introduction

[1]

Issue

[5]

Background

[6]

The 2005 will

[13]

The 2007 will

[15]

The 2008 codicil

[17]

The law of testamentary capacity

[18]

The evidence

[29]

Teresa Cattin

[30]

Dale Murray

[48]

Gregory Dunning

[63]

Summary of events relating to Mrs Murray's testamentary dispositions

[79]

Communication vacuums

[92]

The “sinking lid” policy

[99]

Medical evidence

[110]

Conclusion

[115]

Appreciation

[117]

Introduction
1

Mabel Florence Murray (the deceased) died at the Lady Allum Home in Auckland on 3 May 2009 aged 88 years.

2

She executed a will dated 7 June 2005. Subsequently she executed a will on 3 May 2007 and a codicil to that will on 1 August 2008.

3

The plaintiffs who are named as the executors and trustees of the 2007 will have been appointed interim administrators of the deceased's estate by order of this Court dated 12 May 2009, They have applied for a grant of probate in common form as there is a conflict of evidence as to whether the deceased had testamentary capacity when she executed the 2007 will and the 2008 codicil. The plaintiffs accept that the evidence puts in issue testamentary capacity of the deceased in respect of the 2007 and the 2008 codicil. There is no issue about testamentary capacity in relation to the 2005 will.

4

The plaintiffs seek from the Court an order that either the 2005 will or the 2007 will and/or the 2008 codicil be admitted to probate and that either one or both of the plaintiffs be appointed the executors and trustees of the deceased's estate to administer it in accordance with the will and/or codicil that may be admitted to probate.

Issue
5

The issue is whether, on the totality of the evidence, this Court should make findings that the deceased had testamentary capacity when she executed the 2007 will and that she had testamentary capacity when she executed the 2008 codicil.

Background
6

The relevant background is set out in a joint affidavit of the plaintiffs sworn in March 2011, filed in support of their application for appointment as interim administrators.

7

The deceased was born on 11 August 1921, She married in 1941 and there was one child of that marriage Kathleen Linda Frances, 1 born 30 July 1942. Following the death of her first husband in World War II the deceased married Roy Murray in 1946. There were four children of that marriage — Geoffrey born 1946, Leonard born 1952, Colin born 1954 and Dale born 1956. Kathleen was adopted by the deceased and her second husband, in 1949.

8

Leonard, Geoffrey and Kathleen predeceased the deceased, leaving the plaintiffs as her only surviving children. She had 11 grandchildren from the five children, all of whom are adults.

9

In 2006 the deceased was living with her daughter Linda and Linda's husband, Trevor Warren, in South Australia. Linda died in an accident in October 2006. Shortly afterwards the deceased returned to New Zealand and lived with Dale Murray and his wife Lynette.

10

In November 2006 the deceased fell and broke her hip. She was admitted to North Shore Hospital. From there she was transferred to Te Mana Retirement Home until a room became available for her at the Lady Allum Retirement Home in Milford. She moved to the Lady Allum Home in February 2007.

11

Trevor Warren, Kathleen's husband, lives in Queensland. He came to New Zealand and visited the deceased at the Lady Allum Home in June 2008. He has not filed evidence in this proceeding, but annexed to the joint affidavit of Colin Murray and Dale Murray is a letter to Ward McCulloch, solicitors of Upper Hutt from Trevor Warren in which he briefly outlines the circumstances of his visit to the deceased in June 2008. He declines to sign a deed of family arrangement which had been

forwarded to him under cover of a letter of 9 September 2010 by Ward McCulloch. This document referred to the three testamentary documents executed by the deceased and to conflicting evidence as to the testamentary capacity of the deceased in relation to the 2007 will and the 2008 codicil, and provided for a payment of $9,000 to Trevor Warren. In a subsequent letter dated 22 December 2010 to Colin Murray, Trevor Warren says he is not challenging any of the wills and accepts any outcome.
12

The estate of the deceased comprises cash and bonus bonds totalling approximately $194,500, together with some personal effects.

The 2005 will
13

The will made on 7 June 2005 describes the deceased as of Upper Hurt, widow. She appoints Colin Murray to be the sole executor and trustee. Following some minor bequests she divides her residuary estate into three parts passing to:

  • (a) Her son Colin Richard Murray and her daughter-in-law, Jennifer-Lee Murray, or the survivor of them as tenants in common in equal shares. There is a gift over to their children if they predecease Mrs Murray.

  • (b) Her son Dale Malcolm Murray.

  • (c) Her daughter Kathleen Frances Warren and her son-in-law Trevor Warren or the survivor of them as tenants in common in equal shares. There is a gift over to their children if they predecease Mrs Murray.

14

This will was prepared by Ward McCulloch, solicitors of Upper Hutt.

The 2007 will
15

On 3 May 2007 the deceased made a further will. By this time her daughter, Kathleen, had died and she was living in the Lady Allum Home. The will was prepared by Mr Gregory Dunning, a solicitor in practice in Milford on Auckland's North Shore. He was instructed by Mr Dale Murray. He prepared a new will incorporating changes to the 2005 will as advised by Mr Murray and attended the deceased at the Lady Allum Home when she executed it on 3 May 2007.

16

By this will the deceased appointed Colin Murray and Dale Murray as executors and trustees of her estate. She made some changes to the minor bequests and divided her residuary estate into three parts passing to:

  • (a) Her son Colin Richard Murray and her daughter-in-law Jennifer-Lee Murray, or the survivor of them as tenants in common in equal shares. There is a gift over to their children if they predecease Mrs Murray (there was no change in this disposition from the 2005 will).

  • (b) Her son Dale Malcolm Murray and her daughter-in-law Lynette Patricia Murray, or the survivor of them as tenants in common in equal shares (Lynette Murray was added as a...

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