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

• Jurisdiction: New Zealand
• Judge: Potter J
• Judgment Date: 28 March 2012
• Neutral Citation: [2012] NZHC 545
• Docket Number: CIV-2011-404-002625
• Court: High Court
• Date: 28 March 2012

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

[2012] NZHC 545

CIV-2011-404-002625

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

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.

Counsel:

B M Stainton for Plaintiffs and Defendants

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 beneficiary. Dale Murray and his wife have no children),

• (c) Her son-in-law Trevor Warren. There is a gift over to his children if he predeceases Mrs Murray.

The 2008 codicil

17 On 1 August 2008 the deceased made a codicil. It confirms the terms of her 2007 will, save that her residuary estate is divided into two shares which pass respectively to Colin Murray and his wife (with a gift over to their children if they predecease Mrs Murray), and to Dale Murray and his wife.

The law of testamentary capacity

18 The judgment in Banks v Goodfellow 2 remains the leading authority on testamentary capacity. Cockburn CJ said: 3

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

19 In Bishop v O'Dea 4 Tipping J listed three matters of which the testator had to have a sufficient understanding, derived from the authority of Banks v Goodfellow: 5

• (a) That he or she was making a will and the effect of doing so (the nature of the act and its effect);

• (b) The extent of the property being disposed of; and

• (c) The moral claims to which he or she ought to give effect when making the testamentary dispositions.

20 The third matter identified by Tipping J encapsulates two concepts identified in the above passage from Banks v Goodfellow: that the testator needs to understand the claims to which he/she ought to give effect and that he/she should not be subject to any “disorder of the mind” that “pervert(s) his sense of right”.

21 As to the extent or degree of capacity the Court of Appeal said in Woodward v Smith: 6

• (7) Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all;

• (8) Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament,

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