Van Der Kaap v Wilson and Ors [2005] NZCA 152 (14 June 2005)

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Van Der Kaap v Wilson and Ors [2005] NZCA 152 (14 June 2005)

Last Updated: 29 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA97/04

BETWEEN ROBERT VAN DER KAAP
Appellant

AND EILEEN WILSON, ROBERT GEORGE WILSON AND COLIN JOSEPH PYLE
Respondents

Hearing: 30 May 2005

Court: Anderson P, William Young and O'Regan JJ

Counsel: C Y Simes for Appellant
B Westenra for Respondents

Judgment: 14 June 2005

JUDGMENT OF THE COURT

The appeal is dismissed. The appellant is to pay the respondents costs in the sum of $6,000 together with usual disbursements.

REASONS

(Given by William Young J)

Introduction

[1]	This is an appeal from the judgment of Rodney Hansen J delivered on 21 April 2004 in which he made absolute an order nisi for the administration, pursuant to a will of 9 October 2003, of the estate of Roelof van der Kaap ("the deceased"). The deceased died on 10 October 2003.
[2]	The appellant’s position is that the deceased lacked testamentary capacity when he made the will and that, in any event, he made the will at a time when he was subject to undue influence from Eileen Wilson (who is one of the respondents), and her husband, Robert Wilson.

Background

[3]	The deceased was 72 when he died. He was born in the Netherlands and came to New Zealand when he was in his 20’s. He spoke reasonable English but was not particularly proficient in written English.
[4]	The deceased had married three times. He had four children by his first marriage – Robert (who is the appellant), Lillian, Errol and Eileen. They are all now in their forties. He had a further child, Daniel, by his second wife. Daniel was aged nineteen at the time of his father’s death. The deceased was married briefly for a third time but there were no children of that marriage. He had eleven known grandchildren and may have had a have a twelfth but whether that is so is unclear on the evidence before us.
[5]	At the time of his death the deceased owned a lifestyle property at Ngunguru, valued at $352,500, had bank accounts amounting to almost $240,000 and possessed other assets to the value of approximately $11,000.
[6]	The deceased apparently made wills in 1987 and 1991. The primary focus of the case, however, was on the three wills which he made in the last year of his life. All of these wills were made in the context of ill-health as he was diagnosed with stomach cancer in September 2002.
[7]	The first of these wills was made on 1 November 2002. This was just before the deceased was scheduled to undergo surgery.
[8]	The will was prepared by Mr Iain Duffy, a trust manager employed by a firm of solicitors in Whangarei. The deceased told him that he wanted to make provision for his children but also wished to leave part of his estate to charity. The deceased was not able settle on the specifics of his proposed testamentary dispositions. The upshot was that the deceased’s November 2002 will appointed Eileen and Errol as executors and trustees and directed them to hold all of his estate upon trust to be:

... distributed by them amongst members of my family including themselves and such charitable organisations as I have directed them in my lifetime. ...

Such directions the deceased may have given were in very general terms, along the lines that there should be a charitable trust for Christian purposes.

[9]	As it turned out, the deceased elected against surgery. It appears that this was for two reasons: a concern about complications associated with the proposed surgery and an unwillingness to accept a blood transfusion. The evidence does not indicate the basis for the deceased’s unwillingness to accept a blood transfusion. Mrs Simes, who appeared for the appellant in this Court, suggested that this unwillingness meant that the deceased was a Jehovah’s Witness. We are not prepared to draw that conclusion from so slight a factual premise.
[10]	In early September 2003 year, the deceased travelled to Ashburton to stay with Eileen and her husband, Robert Wilson. He returned home a few days later at which point his health deteriorated sharply. On 16 September he was admitted to hospital. Eileen arrived from Ashburton on the same day.
[11]	On 3 October 2003 Eileen took the deceased from hospital to see Mr Duffy’s at the latter’s office where he executed the second of the relevant wills. In her affidavit she said that she was present when the will was signed, having been in the waiting room while Mr Duffy spoke to the deceased but then being called into the room at the deceased’s request.
[12]	The 3 October 2003 will provided for:

(a) Legacies of $10,000 to each of the deceased’s grandchildren who survived him and reached the age of 25 years.
(b) Legacies of $50,000 to each of the children of the first marriage.
(c) A legacy of $70,000 to Daniel, the then 19 year old son from the deceased’s second marriage.
(d) All articles of household use and ornament were left to Eileen to be shared by her amongst members of the family.
(e) The residue to be held for the establishment of a charitable trust for the promotion of the Christian Gospel and to fund Christian works.

[13]	Eileen was re-appointed as an executor but her brother, Errol, was replaced as her co-executor by Eileen’s husband, Robert Wilson. Errol had apparently indicated that he did not wish to be an executor.
[14]	Mr Duffy said that on 3 October, the deceased indicated some concern regarding the gift of the residue as the amount of the residue was going to be larger than he had first calculated. Mrs Simes, for the appellant, suggested that this meant that the deceased signed a will which did not reflect his testamentary intentions. We think it more sensible to infer that by the time the 3 October will was executed the deceased had reservations as to the extent to which he was making charitable provision but the will was executed essentially as an interim measure as more closely representing his intentions than the November 2002 will.
[15]	On 6 October Robert Wilson arrived from Ashburton.
[16]	On 7 October the appellant left hospital for the last time. It is clear that the deceased was then dying. What is not clear is whether he accepted that this was so. We say this because his hospital notes for 7 October record:

... He does not accept he is Palliative and still hoping for a cure. No talk of Discharge at present.

The evidence as a whole, however, suggests that if he did not, as at 7 October, recognise that he was dying, he soon did so. A registered nurse, Ms Lesley Dill-Russell gave evidence that when she first saw the deceased the following day, that is 8 October, the deceased was adamant that he did not want any more treatment and that he knew the consequences of this and in particular that he was dying.

[17]	On 7 October the deceased told Robert Wilson of changes he wanted to make to his will. He dictated these changes to Robert Wilson who transcribed them into a written instruction to Mr Duffy which adopted the style and phrasing of the 3 October will. This was delivered to Mr Duffy on 8 October. He was told to action the instructions quickly as it was felt that the deceased was fading. That the written instructions for the will came through Robert Wilson is not entirely surprising given the deceased’s limited facility with written English. In instructions conveyed later that day to Mr Duffy, he was told to add Mr Colin Pyle as an executor. Mr Pyle was a friend of the deceased.
[18]	Mr Duffy made the new will and brought it to the home of the deceased the following day (9 October). Mr Duffy asked Eileen to leave the room while he went over the proposed will with the deceased. Eileen, however, asked the deceased if he wanted her to stay and he said he did. The will was eventually signed by the deceased and witnessed by Mr Duffy and his secretary, Ms Wendy James. Also present, at the request of the deceased, were Eileen and Robert Wilson and Mr Pyle. We record that the appellant believes that the signature and initials indicate weakness on the part of the deceased. This is not apparent to us from the copy document which we have, but if it is, it is not surprising as, by this stage, the deceased had less than 24 hours to live.
[19]	The effect of the last will is as follows:

(a) The executors are Eileen and Robert Wilson and Mr Pyle.
(b) There are legacies of $10,000 to each of his grandchildren who attain the age of 25 years.
(c) There are legacies of $50,000 to his children by his first marriage.
(d) There is a legacy of $70,000 to Daniel.
(e) All articles of household use and ornament are left to Eileen to be shared by her amongst members of the family.
(f) His boat is be available for the recreational use of the van der Kaap and Wilson families but to be stored at Eileen’s property.
(g) There is legacy of $10,000 to the North Haven Hospice society.
(h) There is a bequest of $100,000 to establish a charitable trust for the promotion of the Christian Gospel and to fund Christian’s works with the terms of the trust to be settled by the executors.
(i) The residue is to be divided amongst the deceased’s children.

[20]	The deceased died on the morning of 10 October.
[21]	Eileen and Robert Wilson are members of the Baptist Church. Mr Pyle was formerly a minister in that church. There is no direct evidence as to the deceased’s precise religious affiliations.

The underlying dynamics

[22]	It is reasonably clear that the deceased’s relationship with Eileen was very close and rather closer than his relationships with his other children. Likewise his relationships with Eileen’s children were closer than his relationships with his other grandchildren.
[23]	The appellant’s concerns about the terms of the will appear to come down to the following four issues:

(a) Eileen and Robert Wilson are devout Christians. The appellant sees the charitable trust as reflecting the interests of his sister Eileen.
(b) Of the 11 known grandchildren, seven are the children of Eileen and Robert Wilson. So their family receives more from the estate than any other family.
(c) Daniel receives a larger bequest ($70,000) than the other children ($50,000) which he considers to be unfair.
(d) He considers the bequest of $10,000 to the hospice to be inappropriate.

[24]

The first two of these points are referable to the appellant’s underlying concerns about the circumstances in which the will was executed but the other issues are, in a real sense, collateral. Daniel’s larger bequest might be thought to be referable to his age and there seems no obvious reason why Eileen and Robert Wilson would exercise undue influence to bring this result about. Similar comments apply in relation to the hospice. Given the care he had received there is nothing unusual in the bequest and there is no obvious reason why Eileen would have exercised undue influence on this point.

[25]

There is no point (at least in a financial sense) for the appellant in successfully challenging the 9 October will if the result is simply that the deceased’s estate is distributed pursuant to the 3 October will; this because the appellant in fact receives some $20,000 more (or thereabouts) under the 9 October will than he would under the 3 October will. It is likewise far from clear that the appellant would be any better off under the November 2002 will if both the 3 October and 9 October 2003 wills were held to be invalid. This last point was touched on in argument before us but not really developed in any detail.

The proceedings

[26]	The appellant lodged a caveat against the grant of probate. The executors responded by applying for an order for discharge of the caveat or for an order nisi for the grant of administration.
[27]	These procedural steps invoked s 61(a) of the Administration Act 1969 ("the Act") which provides:

(a) The Court, upon application on behalf of the person applying for administration, supported by affidavits upon which, if there had been no caveat, administration would have been granted, may make one or other of the following orders:

(i) In any case where the Court is satisfied that the caveat has been or may have been lodged vexatiously or frivolously, an order for the discharge of the caveat or for security for costs; or
(ii) In any other case, an order nisi for the grant of administration to the person applying, which order nisi shall name a time and place for showing cause against the same, and the Court may enlarge any such order from time to time:

[28]	Keane J considered the executors’ application on 12 March 2004. The only evidence he had before him at that stage was an affidavit from Eileen. He also had a memorandum from counsel for the appellant indicating that the will was challenged for want of testamentary capacity and undue influence.
[29]	Keane J decided that the executors had not made out the requisite grounds for discharge of the caveat – ie that it had been lodged vexatiously and frivolously in terms of s 61(a)(i) of the Act. He went on to make the alternative order available under s 61(a) - an order nisi for grant of administration.
[30]	19 April 2004 was fixed as the day upon which the appellant was to show cause why the order nisi should not be made absolute. Affidavits were to be filed and served by Friday 26 March 2004 with a right of reply within seven days (ie by 2 April 2004). The reason for the urgency was that the executors had agreed to sell the deceased’s property at Ngunguru and had entered into an agreement to this effect but the appellant challenged the appropriateness of the sale. For this reason it was thought that the entitlement of the executors to act as such had to be determined as quickly as possible.
[31]	The hearing on 19 April 2004 was before Rodney Hansen J. This hearing was pursuant to s 61(d) and (e) which provide:

(d) ... if on the day named in the order nisi or on the day to which the order is enlarged, the caveator does not appear, the order nisi may be made absolute, upon an affidavit of service; but if the caveator appears, the hearing shall be conducted in the same manner as nearly as may be as in an ordinary action, and the Court may order--
(i) That the order nisi be made absolute or discharged; or

(ii) That the application for administration be made in solemn form,--

and any order made under subparagraph (i) or subparagraph (ii) of this paragraph may be with or without costs, as may be just, and, if the Court so directs, those costs may be paid out of the estate:
(e) At any hearing under paragraph (d) of this section, the parties may, subject to the rules, verify their cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, be subject to be cross-examined by or on behalf of the opposite party orally in open Court, and after cross-examination may be re-examined orally in open Court by or on behalf of the party by whom the affidavit was filed:
...

[32]	Prior to the hearing the executors filed a number of affidavits in accordance with the timetable fixed by Keane J but none were filed on behalf of the appellant. When the hearing began on 19 April 2004, his counsel sought leave to file an affidavit by the appellant. Counsel said the delay in filing the affidavit was caused by the time required "to make it conform with the High Court Rules".
[33]	Rodney Hansen J refused leave to file the late affidavit. He proceeded to hear the case on the basis of the affidavits filed by the executors and the evidence given viva voce. This meant that the evidential basis for the appellant’s case had to come from the affidavits filed on behalf of the executors and the oral evidence which the deponents gave.
[34]	The process was unusual. On the return of an order nisi, the High Court usually decides whether the caveator has raised sufficient to show that a full enquiry should be made, see Re Nissenbaum [1939] NZLR 94 and Re Payne (1989) 2 PRNZ 432. For this reason the conventional course is for the caveator to provide such evidence as is readily available to support the caveat and for those propounding the will either to submit to a requirement to proceed in solemn form or alternatively to deny that the caveator has raised enough to prevent the order nisi being made absolute. The High Court does not usually resolve genuinely disputed issues of fact under s 61.
[35]	Although the process followed was unusual, the primary fault lay with the appellant. He did not put his case in affidavit form, which is what a caveator will usually do. So he created the situation in which the case had to be dealt with on the basis of the affidavits filed by the executors and the oral evidence of those deponents who were to be cross-examined. This then produced what was in effect a mini-trial or summary trial. The structure of s 61 and in particular the entitlement to insist on cross-examination of deponents and the "ordinary action" procedure make it clear that it is open to a Judge to resolve questions of fact. Indeed, as Quilliam J recognised in Re Nissenbaum at 95 - 96, some questions of fact may be able to be dealt with adequately under s 61. We think that this is particularly so of questions of fact in respect of which discovery is unlikely to be of assistance.
[36]	The usual approach discussed in Re Nissenbaum and Re Payne of directing the probate be applied for in solemn form where the caveator has raised sufficient to show that a full inquiry should be made is not entirely easy to apply where there has been cross-examination of deponents and the "ordinary action" procedure has been followed. It is implicit in the procedure that the sort of doubts and concerns which might ordinarily warrant a requirement for probate to be sought in solemn form might be effaced by the detailed evidence, including cross-examination, given in respect of those matters of concern.

The judgment of Rodney Hansen J

[37]	On the testamentary capacity issue, the Judge observed:

[16] In order to establish testamentary capacity, those seeking probate must demonstrate the maker of the will had sufficient understanding of three things:
(a) that he or she was making a will and the effect of doing so;
(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.

This is established by the leading authority of Banks v Goodfellow (1870) LR 5 QB 549. ... The question is whether the respondent has raised a tenable issue that the deceased had an inadequate understanding of these three matters.
[17] The respondent claims the deceased did not have testamentary capacity when he executed both the 3 October and 9 October wills. I find all of the direct evidence to be to the contrary. The evidence of Mr Duffy is conclusive on the first will. Mr van den Kaap went himself to Mr Duffy"s office. To use Mr Duffy's words, "he knew exactly what he was doing". Mr Duffy said that at the time he signed the will the deceased expressed concern about the amount that was being left for charitable purposes. The residue was larger than he anticipated. It is clear that he had a full appreciation of the extent of his estate and the effect of the will. It is also apparent that he had given careful thought to the moral claims of potential beneficiaries.
[18] There is further evidence of his clear thinking on the issues in the way he dealt with those concerns over the following days. All those who had contact with him over that period said he was rational and lucid. His pain relief was limited to panadol. Morphine was made available to him but was not required until very shortly before his death. Before the will was signed, Mr Duffy took him through it and satisfied himself that he understood its terms. Again, he was in no doubt that Mr van den Kaap knew exactly what he was doing. The evidence of a hospice nurse who saw him on 8 October and again on 9 October (after he signed the will) was that he was fully alert. He was not in great pain. He told her that if he lay in the right position in his bed he did not feel anything.
[19] Mr and Mrs Wilson, who I found to be truthful and reliable witnesses, confirmed that the mental processes of the deceased were unimpaired. A close friend of his, Mr Grant Allen who visited him the night before he died, deposed:

Roel was totally coherent and in full control of his mental state. He was in exactly the same state of mental alertness that I have always known him to be.
Roel was clearly in quite a lot of pain. However, he remained coherent and his mind and judgment did not appear to be affected in any way.

Mr Allen was the only witness who was not required to be present for cross-examination.
[20] Against this, Mr Hucker contends that "inconsistencies" between the testator’s first three wills (1987, 1991 and November 2002) and the October 2003 wills suggest that the testator lacked testamentary capacity when he made the latter two. I consider inconsistencies between the 1987 and 1991 wills and later wills are of no relevance, so apart are they in time and circumstances. The focus must be on inconsistencies between the November 2002 and the October 2003 wills.
[21] Mr Hucker pointed to the absence of any apparent intention to benefit a Christian charity in the November 2002 will and to the radical changes made for provision for children and grandchildren in the later wills. He submitted that these changes indicate that the testator was confused as to the dispositions he wished to make and give rise to a doubt that he was fully in command of his faculties.
[22] I see nothing in the way the wills developed to pose any challenge to the clear impression given by the direct evidence. The deceased was torn - as many testators are - between his wish to provide adequately for his family and a sense of obligation to the wider community. He finally resolved that by limiting the sum set aside for charitable purposes and increasing provision for his children. As a practising Christian, it was entirely understandable that he should wish to provide for the advancement of his faith. I do not think the purposes on which he finally settled suggest any lack of capacity. With the exception of Daniel - whose needs were greater than his siblings - the deceased made no distinction between his children or grandchildren. He was close to some, distant from others and clearly made a principled decision not to favour any individual. In providing something for the hospice, he was presumably responding to his experience of the work such organisations do. All of the changes are readily understandable as the final wishes of a man who had come to a clear and rational view of what he wanted.
[23] There is no evidence which could raise a concern that the testator lacked testamentary capacity at any relevant time.

[38]	On the undue influence question, the Judge observed:

[24] The second ground raised by the respondent requires me to determine whether there is any evidence that the will did not express the testator's mind, that Eileen and Robert Wilson exercised power over him and it was by means of the exercise of that power that the wills were obtained: Craig v Lamoureux (1920) AC 349, 356-7; Carey v Norton [1998] 1 NZLR 661.
[25] Eileen Wilson came to Ngunguru from Ashburton, where she lived, to look after her father in his final weeks. She was the closest sibling to her father whose relationships with his other children were more distant and, in at least one case, virtually non-existent. This close and constant relationship with her father is confirmed by her appointment as an executrix or trustee of four of the five known wills and her appointment in the 1991 will as guardian of Daniel. Robert Wilson followed his wife to Ngunguru in early October. He also had a close relationship with the deceased. Among other things, all three were committed practising Christians.
[26] In support of the claim that over the period the Wilsons cared for the deceased, they influenced him into making wills which did not give effect to his true intentions, Mr Hucker pointed to a number of factors which he submitted raised serious questions as to whether those wills were in fact the exercise by the deceased of his free will. Those factors included:

(a) The changes from earlier wills previously referred to, including the introduction of specific religious purposes for the charitable trust.
(b) The inclusion of the grandchildren in the wills.
(c) The deceased's dependence on Mrs Wilson for care over the last weeks of his life.
(d) The absence of written instructions for the 3 October will.
(e) The way in which the instructions for the 9 October will came to be communicated.
(f) The religious beliefs of the Wilsons and the fact that seven of the deceased's eleven grandchildren were their children were suggested as the reasons for the provision made in the later wills for the grandchildren and to advance the Christian faith.

[27] I see these factors and other matters referred to by Mr Hucker as more truly consistent with a much more benign process. Here was a man who knew his end was near and who advanced and refined his thinking as his physical health declined. Aided by a trusted and experienced professional and by family members, he was able to formally execute his last wishes the day before he died. The changes he made were readily explicable and largely explained at the time. There is no reason to think they were not the result of a rational and deliberate process. The Wilsons did no more than any loving daughter and son-in-law would have done in the circumstances. I can see no hint of impropriety in their actions or any basis for concluding that either or both of them in any way influenced the thinking of the deceased.

The issues on appeal

[39]	Two primary themes emerged from the arguments advanced for the appellant by Mrs Simes:

(a) The whole process was wrong. The High Court wrongly acted on the basis that urgency was required, with the result that tight timetables were imposed. Consequently the appellant was put under inappropriate time pressures and incomplete evidence was placed before the Court (particularly in relation to medical and nursing notes referable to the deceased’s final illness, not all of which were produced). The appropriate approach would have been to make a limited grant of administration pendente lite and to require probate to be established in solemn form.
(b) In any event, on the material before the Court there was enough to satisfy the test for requiring probate to be applied for in solemn form.

Discussion

The process arguments

[40]	If the case had proceeded by way of application for probate in solemn form, the procedure would have been different in the following respects:

(a) Discovery would have been available;
(b) The process could have been carried out in a more leisurely way with the appellant having more time to put his evidence together; and
(c) The position as to all conceivably relevant wills could have been addressed at the same time.

[41]	As things now stand, the appellant has been left with the view that the proceedings in the High Court were rushed and that there was not a full investigation into his concerns. As we have already indicated, the procedure which was followed was unusual. It is apparent that the appellant is profoundly dissatisfied with what has happened. So we have given Mrs Simes’ procedural arguments anxious consideration.
[42]	We agree that the urgency associated with the sale of the property, could, as Mrs Simes noted, have been addressed by a grant of administration, pendente lite; this under s 7 of the Act. As well, it would have been open for the executors to seek probate in solemn form from the outset rather than engage in the s 61 process and if they had done so, this would have avoided the possibility of procedural imbroglio - a possibility which is always real when litigation short cuts are taken.
[43]	That said, we do not see the process arguments advanced by Mrs Simes as warranting the allowing of the appeal. This is for the following reasons:

(a) The appellant did not suggest an appointment pendente lite to resolve the problem over the sale and indeed at the time opposed the sale. The arguments on this point are therefore an afterthought.
(b) Given the appellant’s opposition to the sale, the most obvious way of resolving the problem was an expedited hearing (either under s 61 or for probate in solemn form).
(c) The executors had a right to adopt the s 61 procedure albeit that they took the risk that if the appellant was able to come up with a case against the will, the result might be a requirement for probate in solemn form in which case the s 61 process would have involved a waste of time and resources.
(d) The s 61 procedure began to deviate from the norm once the appellant failed to file an affidavit and this deviation became more pronounced when he required cross-examination of the executors’ witnesses and in this way insisted (as was his right) on what was in effect a mini-trial of the probate application.
(e) Having by his own actions required the s 61 issue to be determined by way of mini-trial, he is not well positioned to complain that this was the process which was followed.
(f) Although Mrs Simes complained about the exclusion of the appellant’s affidavit by the Judge, we were not shown the affidavit and there was no attempt to argue that had it been accepted it would have made any difference to the outcome. A similar position relates to the unproduced medical notes. The appellant now has the notes but did not receive them until after the judgment of Rodney Hansen J. The notes were not shown to us and we have no basis for thinking that they reflected adversely on the executors’ case. In that context we are not satisfied that the process was unfair.

Testamentary capacity

[44]

Mrs Simes sought to argue that sufficient had been raised as to the possibility of lack of testamentary capacity to warrant an order that the executors seek probate in solemn form. In very large measure she relied on the probability (as she saw it) that the deceased’s state of mind must have been severely affected by his state of health and imminent death. In support of this submission she took us to the Oxford Textbook of Palliative Medicine 3ed 2004. More specifically she suggested that the deceased’s signature and initials on his last will were weaker and less consistent that those of his previous signatures (this reflecting physical and psychological frailty) and that, as late as 7 October 2003, he believed he was not dying, a belief which she described as a "delusion". She suggested that his conduct in relation to medical treatment, going back to November 2002 was or may have been irrational. Conversely she argued that if his objection to blood transfusion was because he was a Jehovah’s Witness, then it would have been irrational for him to leave money for a trust for general Christian purposes to be settled by his daughter and Mr Pyle, both of whom are Baptists. She was highly critical of Mr Duffy for his failure to take notes of his attendances and for not arranging for the deceased to be seen by a doctor for an independent assessment of his testamentary capacity.

[45]

She contended that there should be a rebuttable presumption of no testamentary capacity in the circumstances obtaining when this will was made. She put this in various ways, but broadly, she maintained that there should be such a rebuttable presumption in the case of a testator:

(a) Who had (as she maintained) not accepted that he was dying;
(b) But was receiving palliative care rather than curative care; and
(c) Who died within 24 hours of execution of the will.

[46]	We have considered carefully these submissions.
[47]	There is a real sense in which the appellant has sought to raise an entirely new case on appeal; this by reference particularly to The Oxford Textbook of Palliative Medicine which was not referred to Rodney Hansen J. This case was not supported by affidavit evidence (albeit that we recognise that there may have been cost/benefit issues associated with the preparation of such affidavit evidence). In the context of the present litigation, however, we prefer not to decide the case by reference to the procedural and evidential rules which apply to appeals on questions of fact but rather because the generalities relied upon by Mrs Simes are not sufficient to overcome the weight of the specific evidence available to support the will.
[48]	The evidence as to testamentary capacity was all one way. This came from:

(a) Eileen and Robert Wilson.
(b) The palliative care nurse, Ms Dill-Russell who saw the deceased on 8 and 9 October 2003. She said that throughout the deceased was alert and was taking only paracetamol for pain relief, although on 9 October she made arrangement for morphine elixir to be in the house if it was required. On 9 October he knew where he was and who was present. He recognised Ms Dill-Russell from the day before and he was clear in the instructions which he gave.
(c) Iain Duffy. He has worked in the area of wills and trust administration for 40 years. He first met the deceased in or around June 2002 (ie before he was diagnosed with stomach cancer) and in total saw him on between six and twelve occasions. He recognised that the deceased was very ill in October 2003 but said that he "still functioning well in the head". On 9 October he was still mentally "with it" and "knew exactly what he was doing". The deceased knew the broad details of his estate and in particular the likely extent of the residue.
(d) Grant Peter Allen, a friend of the deceased, who said that on the night of 9 October, the deceased was totally coherent and in full control mentally.

[49]

We do not regard the remarks of the deceased on 7 October 2002 to the effect that he did not accept that he was dying and that he still hoped for a cure as "a delusion". In the context of testamentary capacity cases, the concept of "delusion" involves much more than mere wishful thinking. In any event, by the following day, 8 October, the deceased accepted that he was dying. Nor do we see any indication of testamentary incapacity in his attitude to surgery and blood transfusions or the establishment of a trust for Christian purposes.

[50]

There is simply no authority to support the imposition of a rebuttable presumption of testamentary capacity as contended for by Mrs Simes.

Undue influence

[51]	On the appellant’s case, the undue influence was exercised by Eileen and Robert Wilson and was given effect through the will prepared by Mr Duffy.
[52]	The context in which this allegation is made is as follows.

(a) The deceased was very close to Eileen and in the last three weeks of his life she was caring for him. Accordingly he may have been emotionally dependent on her.
(b) The proposed trust for the promotion of the Christian Gospel and to fund Christian works, the terms of which are to be settled by Eileen and Mr Pyle, can be expected to further Eileen’s religious beliefs.
(c) The provision of legacies to grandchildren are of benefit to the Wilson family because 7 of the 11 or 12 grandchildren are the children of Eileen.
(d) Eileen was present when the appellant executed the 3 October will, the instructions for the 9 October will were conveyed in the handwriting of Robert Wilson, Eileen was present when that will was explained to the deceased by Mr Duffy and both were present when that will was executed.

[53]	If this was all that there was before the Court on 19 April 2004, the Judge would probably have required probate to be applied for in solemn form. This is the sort of context which might be thought to warrant that approach. As it turned out, however, there was much more evidence, including the oral evidence of those primarily involved.
[54]	The key conclusion of the Judge was in [27] of his judgment:

... The Wilsons did no more than any loving daughter and son-in-law would have done in the circumstances. I can see no hint of impropriety in their actions or any basis for concluding that either or both of them in any way influenced the thinking of the deceased.

[55]

The factual issue for the Judge, although in a sense evaluative, was relatively straight forward. It was hard to see how he would have been better placed to deal with it had he been hearing an application for probate in solemn form. This is not the sort of issue which, in the ordinary course of events, would be affected by discovery.

[56]

Given the way in which the case unfolded, the Judge was, in effect, invited to conduct what could be described as a mini-trial or a summary trial on, inter alia, the issue of undue influence. It is clear from s 61 that he had jurisdiction to do so. Having heard the evidence he was in a position to reach the view that he expressed in [27] of his judgment. Having reached that view, he was, we think, probably required, but in any event certainly entitled, to make the order nisi absolute.

Result

[57]	The appeal is dismissed.
[58]	The appellant is ordered to pay the executors $6,000 by way of costs together with usual disbursements.

Solicitors:
Frankton Law, Hamilton for Appellant
B Westenra, Whangarei for Respondents