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Court of Appeal of New Zealand |
Last Updated: 13 March 2023
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BETWEEN |
ROMILEY CHANTAL GORRINGE AND ASHLEY SHAYLIN GORRINGE Appellants |
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AND |
JUDITH ANNE POINTON AND SUSAN RUTH HENDERSON AS EXECUTORS OF THE ESTATE OF JOAN BLAIR GORRINGE Respondents |
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Hearing: |
26 October 2022 |
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Court: |
Brown, Mallon and Downs JJ |
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Counsel: |
J R Hosking and C J Drought for Appellants K J Catran for Respondents |
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Judgment: |
7 March 2023 at 1.00 pm |
JUDGMENT OF THE COURT
____________________________________________________________________
Para No
Introduction [1]
Factual
overview [5]
Joan’s living arrangements [5]
Circumstances in which the 2015 Will was made [8]
Joan’s
statements to the appellants [12]
Circumstances in which the 2016
Will was made [14]
The High Court judgment [17]
Issues on
appeal [20]
Undue influence: relevant principles [21]
Burden of proof [21]
Proving undue influence [24]
Relevance of independent advice [30]
Did the Judge err in finding
there was no undue influence in
respect of the 2015
Will? [31]
A discussion about wills [31]
Instructions
for the 2015 Will [41]
Execution of the 2015 Will [44]
The reasons for the Judge’s conclusion [53]
Discussion [63]
Did the Judge err in finding there was no undue
influence in
respect of the 2016 Will? [81]
Another discussion about wills [81]
Instructions for the 2016
Will [82]
Judith contacts Fenton McFadden [85]
Execution
of the 2016 Will [90]
The reasons for the Judge’s
conclusion [92]
Discussion: the events of 2016 in
isolation [93]
Discussion: the combination of events in 2015 and
2016 [99]
Our conclusion [105]
Result [113]
REASONS OF THE COURT
(Given by Brown
J)
[1] This appeal concerns allegations of undue influence in relation to wills made by Joan Gorringe on 19 November 2015 (2015 Will) and 16 March 2016 (2016 Will). Joan had two children, Peter and Judith. Peter had two children, Romiley and Ashley, who are the appellants. Judith and her husband Christopher Pointon had three children: Nicholas, Michael and Natalie.
[2] Peter died unexpectedly on Tuesday 10 November 2015. Joan’s then current will (2011 Will) made a specific bequest to Judith of all Joan’s clothing, jewellery and furniture.[1] With reference to the balance of Joan’s estate the 2011 Will stated:
Residue
4. My trustee shall hold (the rest) of my estate (“the residue”) as follows:
(a) To pay my debts, duties, funeral expenses and administration expenses.(b) To divide the balance equally between such of my children PETER FRANCIS GORRINGE and JUDITH ANNE POINTON as survive me, provided that if any of my children die before me leaving a child or children living at my death, that child or children shall be entitled equally to their parent’s share as if that parent had been living at my death.
[3] On 19 November 2015 Joan executed the 2015 Will, which altered that division. It made separate and equal distributions to each of the five grandchildren, leaving the residue of the estate to Judith. The 2016 Will executed four months later was expressed in the same terms but provided that, in the event Judith died before Joan, the residue would pass to Christopher. Neither the 2015 Will nor the 2016 Will contained a gift over clause.[2]
[4] Joan died on 24 October 2019 aged 101 years. Probate in common form was granted in respect of the 2016 Will to Joan’s executors, namely Judith and Susan Henderson, a principal in Fenton McFadden, the firm of solicitors who acted for Joan in respect of the 2015 and 2016 Wills. The appellants perceive that the changes made in the 2015 and 2016 Wills inexplicably favoured the Pointon side of the family. They brought a proceeding in the High Court challenging Joan’s testamentary capacity, alleging undue influence by Judith concerning the 2015 and 2016 Wills, and asserting a breach of fiduciary obligations by Joan’s executors. Those three claims were dismissed in a judgment delivered on 3 March 2022.[3] In this appeal the appellants challenge only the decision on the claim of undue influence.
Factual overview
Joan’s living arrangements
[5] Following the sale of their sheep and cattle farm, Joan and her husband Erl lived independently at Papamoa until they were in their 90s. When Erl became ill at the age of 94, the family made the decision to admit him to a rest home in Te Puke. In due course Joan moved to a unit at a retirement village, Somervale, and Erl transferred to the Somervale rest home so that Joan could visit him daily.
[6] After Erl died in 2011, aged 96, Joan executed the 2011 Will appointing Peter and Judith joint executors. Peter had responsibility for Joan’s financial affairs and visited his mother fairly regularly, even though he lived in Hamilton where he had a busy legal practice. Judith, who lived locally, maintained regular telephone contact with Joan and visited twice a week, more frequently if necessary. Judith had an extensive background as a caregiver and was very close to her mother.
[7] In late 2017, following a number of bouts of serious ill health and being in need of overnight support and assistance, Joan relinquished her serviced apartment and moved into the Somervale Care Home.
Circumstances in which the 2015 Will was made
[8] On Wednesday 11 November 2015 Judith broke the news to Joan of Peter’s death. The following day Judith drove to Hamilton to meet Ashley, who had arrived from London. Judith spent Friday with Ashley, during which time attempts were made to locate Peter’s will and Judith became aware of Ashley first learning of his father’s loan to Romiley’s husband. Judith returned to Papamoa on Saturday 14 November and visited Joan. She asked Joan if she knew where Peter’s will was. She also informed Joan that she and Christopher were reviewing and updating their own wills. Judith stated that Joan said she would also like to update her will. Her evidence on this point is addressed in detail below.
[9] On Monday 16 November Judith telephoned Fenton McFadden to make an appointment to update her and Christopher’s wills. At the same time she asked Ms Henderson, who had acted for Joan and Erl since 2009, to set up an appointment with Joan. The following morning, Tuesday 17 November, Judith and Christopher met Ms Hipkiss at Fenton McFadden and signed their wills in her presence. Ms Hipkiss, who was an employed legal assistant and undertook administrative and clerical work at the firm, was neither a solicitor nor a qualified legal executive. Her attendances on Judith and Christopher were on the instructions of Ms Henderson, her supervising partner. Judith then travelled to Auckland in the expectation that she would be there for some weeks in order to be with Natalie, who was due to have surgery.
[10] At 2 pm that same day Ms Hipkiss, on Ms Henderson’s instructions, visited Joan, whom she had not previously met, at Somervale. They met alone. Her evidence concerning that attendance is related below. She returned to Somervale on Thursday 19 November 2015 with the 2015 Will, which Joan executed in the presence of Ms Hipkiss and another person who did not give evidence.
[11] Peter’s funeral took place in Hamilton the following day. In the High Court Walker J accepted Judith’s evidence that, because of the lack of suitable transport and toileting arrangements, it was impractical for Joan to travel to the funeral.[4] Judith arranged for one of Joan’s friends to sit with Joan that day. It was Judith’s evidence that on her return to Papamoa after the funeral she first learned what her mother had done with her 2015 Will.
Joan’s statements to the appellants
[12] On 22 November 2015, two days after their father’s funeral, Ashley and Romiley visited Joan at Somervale. The statements Joan made to them on that visit were the foundation for their claim of undue influence. The key passage in Romiley’s affidavit addressing what the Judge described as this “critical interaction”[5] stated:
While we were there, she told us that she had been bullied by Judith into changing her Will two days after finding out Dad had died. We have since learned that it was Judith who made the call to [Fenton McFadden] to arrange for the Will to be changed.
I recall very clearly that Grandma said words to the effect that “I’ve changed my Will, Judy made me do it two days after your father died. I didn’t think that I had a choice because I was scared if I didn’t do what she wanted she would stop helping me and I’m completely dependent on her now with your father gone and you (two) living overseas. It is now divided between the five grandchildren and Judy”.
Ashley and I were speechless and in shock. Ashley got up and walked out of the room. I just said “Oh” and Grandma continued “Judy bullied me to do it. It is not what your Grandfather and I wanted at all”. I didn’t know what to say as it was such a shock on top of so much shock and loss already. I didn’t want her to feel bad because she was clearly upset, so I changed the subject and then found Ashley and we left, stunned. We spoke about it on the drive home and decided to seek advice from Dad’s lawyer friends.
[13] The Judge summarised subsequent interactions in this way:[6]
[161] Later in her affidavit [Romiley] deposes that “Grandma raised the alarm with us several times repeatedly saying that she had been bullied by Judith into changing her will and did not feel like she had a choice”. No details are provided about when these conversations took place, their circumstances nor any specifics about what Joan actually said. In Romiley’s reply affidavit she deposes only that her grandmother raised the issue about the will change months later in 2016 when Romiley returned to New Zealand to sell her father’s house. Romiley again does not provide details of that interaction or precisely what was said. If this evidence is taken at face value then there were two occasions in which the subject of Joan’s will change came up.
Circumstances in which the 2016 Will was made
[14] In a telephone call on 7 March 2016 Joan gave instructions to Ms Henderson to prepare the 2016 Will. The Judge recorded that Ms Henderson had an uneven recall of the brief but “quite serious” telephone discussion with Joan.[7] Ms Henderson acknowledged that the proposed change to provide for the residue to pass to Christopher in the event of Judith’s prior death was unusual.
[15] Judith denied placing the call to Fenton McFadden on Joan’s behalf or visiting her mother that day. While stating that she had no involvement in the call, Judith acknowledged discussing with her mother Judith’s concerns about what would happen to Christopher if Judith died before Joan.
[16] Ms Henderson expected that Joan would be brought into Fenton McFadden to execute the new will. However Judith gave evidence that she collected it on 15 March 2016, the day prior to its execution. She said that she did not read the will, which was in an envelope, but merely took it to her mother as messenger, observed her read it and sign it in front of two Somervale staff as witnesses, and then delivered the will back to Fenton McFadden.
The High Court judgment
[17] Following a careful review of the events leading to the making of the 2015 and 2016 Wills, the Judge rejected the testamentary capacity challenge. The Judge observed that, as a consequence, the 2016 Will prevailed subject to the conclusion on whether it arose from undue influence exercised by Judith.[8] The Judge recited the principles relating to undue influence primarily by reference to the judgments of the High Court and the Court of Appeal in Green v Green.[9]
[18] The Judge identified the relevant question as being whether from all the surrounding circumstances, with particular emphasis on the result of the will and the circumstances in which it was actually executed, undue influence was to be inferred.[10] The Judge then observed:
[158] A common feature of undue influence cases is that there is no direct evidence of the application of influence so that proof has to come from circumstantial evidence. The evidence led by the plaintiffs in this case is unusual. Joan’s alleged statement to Romiley and Ashley is central to the plaintiffs’ case. I doubt whether the case would have been brought at all but for this evidence. ...
[19] The Judge accepted that an interaction between Joan, Romiley and Ashley took place in the days after Peter’s funeral and that their account about what Joan said to them was generally truthful.[11] However for three reasons (analysed in detail below) the Judge concluded that Joan’s statements were sufficiently equivocal such that they did not of themselves establish undue influence when weighed against other evidence.[12]
Issues on appeal
[20] There are two primary issues:
(a) Whether the Judge erred in finding that Judith did not exercise undue influence over Joan in relation to the 2015 Will.(b) Whether the Judge erred in finding that Judith did not exercise undue influence over Joan in relation to the 2016 Will.
Although the Judge was correct to say that the 2016 Will prevails subject to findings on undue influence, the point of departure in our consideration is necessarily the 2015 Will, in light of the evidence of Romiley and Ashley. Then, whether or not there was undue influence in respect of the 2015 Will, the subsequent issue is whether there was (or continued to be) undue influence in respect of the 2016 Will.
Undue influence: relevant principles
Burden of proof
[21] The burden of proof rests upon the party alleging undue influence in the making of a will. Whereas a party alleging undue influence in respect of an inter vivos gift may rely on an evidential presumption of influence if there is a relationship of influence and the transaction “calls for explanation”, the orthodox position is that an evidential presumption is not available in a challenge to a will on the grounds of undue influence.[13] Thus, in Green v Green Winkelmann J observed that in relation to alleged undue influence in the making of a will there was no evidential presumption that could be relied upon.[14]
[22] However, the Judge here observed that the question whether an evidential presumption is available in will challenges is not settled in New Zealand.[15] Having found that Judith’s relationship with Joan was one of trust and confidence,[16] the Judge stated:
[189] I also find that the contents of the 2016 Will call for explanation based on Ms Henderson’s evidence that leaving the residue to Joan’s son-in-law, Christopher if Judith died before Joan, was a less common approach. This is not the same thing however as finding that the 2016 Will was irrational on its face. I reject the proposition that the 2015 Will calls for explanation for the reasons previously set out.
(Footnote omitted.)
[23] The parties advised that those observations did not reflect their approach in the High Court. Both counsel confirmed that they adopted (and continued to adopt on appeal) the orthodox approach of this Court in Carey v Norton.[17] We follow that approach on this appeal.
Proving undue influence
[24] A person asserting undue influence must show the alleged influence led to the making of the impugned transaction, and that the influence was undue in the sense that the transaction was not the result of the free exercise of an independent will on the part of the person at whose expense the transaction was made.[18]
[25] Specifically with reference to the context of will-making, Winkelmann J said:[19]
(b) Pressure of whatever character can amount to undue influence if it overbears the will of the testator. As Sir JP Wilde recognised:
To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, — these are all legitimate, and may be fairly pressed on a testator. 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 or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else’s.
(c) It is not necessary to provide direct evidence of undue influence, circumstantial evidence is sufficient. However, as Fisher J observed in Hayden v Simeti:
... it is not enough to show that others had the means and opportunity to unduly influence the deceased and that there has been a recent testamentary disposition in their favour. The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.
[26] Reiterating the point that undue influence can be inferred from circumstantial evidence, the authors of Theobald on Wills observe that direct evidence is rare as coercion will usually occur behind closed doors.[20]
[27] One of the grounds on which the High Court’s decision in Green v Green was challenged on appeal was that, in cases involving wills, undue influence can only be found if the circumstances surrounding the making of the will are inconsistent with any other hypothesis, that is, undue influence must be the only possible hypothesis on the evidence.[21] In rejecting that contention this Court said:[22]
In our view, the correct position is as stated in more recent Australian authorities, namely that before the court can be satisfied undue influence has been proved, 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. That is consistent with the approach taken by the High Court of New Zealand in such cases as [Hayden v Simeti], Mahon v Mahon, and Re Keast. It is an approach that still allows appropriate recognition for the special status of formally executed wills without imposing such a demanding standard on those alleging undue influence as to render the doctrine of little or no value in the testamentary context.
[28] That echoes the current state of the law in the United Kingdom, as summarised in Theobald on Wills:[23]
It has often been said that it must be shown that the circumstances attending the execution must be inconsistent with any hypothesis other than its having been procured by undue influence, but this is overstating the position; the standard of proof is the balance of probabilities. Certainly, it is not enough to show merely that the facts are consistent with undue influence, or that there was an opportunity to exercise undue influence; but the true test is whether undue influence is the most likely hypothesis, having regard to the inherent unlikelihood of someone practising undue influence on a testator.
[29] The authors of Theobald on Wills also comment that an enfeebled testator may be more susceptible to coercion without physical threats,[24] citing Re Edwards on the point:[25]
The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case 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 ...
Relevance of independent advice
[30] The provision of independent advice is one of many factors that may be taken into account in determining whether undue influence is proved. Whether the independent advice assists to establish that the transaction was the result of a person’s free will depends on the facts of the case. Independent advice can help establish that a person understood the decision they were making. But establishing that a person fully understood the act is not the same as establishing that the act was not brought about by undue influence. A person can fully understand an act and still be subject to undue influence.[26]
Did the Judge err in finding there was no undue influence in respect of the 2015 Will?
A discussion about wills
[31] The impetus for Joan making the 2015 Will were discussions with Judith over the weekend of 14–15 November 2015. The context is that on Friday 13 November efforts were made to locate Peter’s will. The appellants and Judith had significantly different perspectives concerning the nature of that search. Judith considered that it involved significant drama and stress, which the appellants disputed. As the Judge described it:[27]
[34] Judith visited her mother. She asked Joan if she knew where Peter’s will was. It is apparent that Judith conveyed to her mother that trying to find Peter’s will was adding to the stress and drama. Ashley on the other hand, disputes that there was any stress locating his father’s will. He says that it merely involved a few hours of making calls and that his aunt exaggerated these events to support her narrative.
[32] Judith deposed that her inquiry of Joan was made on the Saturday afternoon. Asserting that the absence of Peter’s will was “one of the triggers” which led Joan to review her 2011 Will, she stated:
The drama and stress of trying to locate Peter’s will was one of the reasons why Mum review her arrangements. On top of that, Peter’s sudden death, following the loss of two other family members in three years, reminded Mum of her mortality and the need to attend to it promptly. When Erl had died, she had similarly updated her will about a month later to cover the new circumstances.
[33] However the discussion about wills on that weekend was not confined to the location of Peter’s will. As Judith explained:
[34] The passage quoted by the Judge[28] noted a further discussion on the following day:
[35] Judith explained Joan’s reasons for changing her will:
[36] The Judge considered that the generality of Judith’s statement, that she and Christopher updated their wills “around the same time”, was curious and could only have been deliberate. The Judge observed that ordinarily the fact that the Pointons updated their wills would be irrelevant but for the fact that their appointment with Ms Hipkiss of Fenton McFadden was on the morning of the same day that Ms Hipkiss also met with Joan.[29]
[37] We make three observations about this narrative. First, Joan’s existing will was made in 2011 with Fenton McFadden. There is no evidence to suggest that Joan had forgotten either that she had made a will in 2011 or where that will was held. Indeed in cross‑examination Judith accepted that Joan would have known that she had a will at Fenton McFadden. Consequently we doubt that the difficulty, such as it was, in locating Peter’s will could have been a trigger for Joan reviewing her will.
[38] Secondly, the 2011 Will was not outdated.[30] It had been executed only four years prior. Like Joan’s previous 2009 Will and the joint wills of Joan and Erl executed in May 1992, there was a gift over provision in the event that either Peter or Judith predeceased Joan. So far as the 2011 Will was concerned, the family situation had not changed significantly.
[39] Thirdly Fenton McFadden had not previously prepared wills for either Judith or Christopher. In cross-examination Ms Henderson commented that Fenton McFadden became lawyers for Judith and Christopher in 2015 “essentially as this Will was done”.
[40] We do not consider that Judith’s evidence at [34] above entirely accurately captures the way in which Joan’s instruction to Fenton McFadden came about. In Judith’s cross-examination the following emerged:
Instructions for the 2015 Will
[41] By the time Ms Hipkiss visited Joan on the afternoon of 17 November 2015, Judith had already departed for Hamilton (and on to Auckland). Ms Hipkiss described Joan as very lucid and clear in her instructions. However she accepted in cross‑examination the accuracy of the following response by Ms Henderson to an inquiry from the appellants’ solicitor:
We refer to correspondence and attach ... WIP notes setting out instructions from Joan re the 2015 Will – the writer did not take those instructions, they were taken by Andrea Hipkiss, another member of our staff. We have asked her whether Joan gave any reasons for getting a new Will done so quickly after Peter’s death, but she cannot recall any part of the discussion, given the time that has passed since this was done;
[42] The contemporaneous handwritten note by Ms Hipkiss of her attendance on Joan is succinct.
The Judge deciphered its contents as follows:[31]
Westpac $687,000.00. 5 Grandchildren – Nicholas Pointon, Michael Pointon,
Natalie Pointon, Romiley Chantell Jack (gdaught) Ashley Gorringe - $50,000.
Balance to Judith. Judy & Sue as executors. Judy for POAs.
[43] Subsequently Ms Hipkiss entered into the firm’s timekeeping record system the following report of her attendance on Joan:
Matter WIP 17.11.2015
client at Somerville retirement village discussed her will instructions with her. she wants her daughter and following discussion also Sue as executors. She wants to leave $50,000 to each of her five grandchildren then the remainder of the estate to her daughter Judith. Evidentially one of her late son’s children’s husbands (they reside in America) has borrowed money previously from Peter and never paid it back and she was worried he would start pressing for further money. Hence the decision to include a further independent executor - she has funds in Westpac and numerous other investments. We are also to ensure that the Enduring powers of attorney are correct. they are to both appoint Judith. she wants the property one to be redrafted I have said I will prepare the documents and go back either tomorrow or thursday for her to sign.
We infer that Judith would be the most likely source of Joan’s knowledge of the loan to Romiley’s husband, as mentioned in Ms Hipkiss’ report of her attendance on Joan, given Judith’s awareness of Ashley’s discovery of the fact while searching his late father’s papers on 13 November 2015.[32]
Execution of the 2015 Will
[44] Ms Hipkiss deposed she had no particular recollection of her meeting with Joan on Thursday 19 November when the 2015 Will was executed. There was no file note relating to that attendance.
[45] We doubt that Joan actually read the 2015 Will. We say that for two reasons. First, there was no evidence Joan read it herself. As the Judge recorded,[33] Ms Hipkiss was adamant that she “would have” read the will to Joan. More significantly, the 2015 Will was a very simple document, only a little more than one page. The names of each of Joan’s five grandchildren were listed in capital letters in the middle of the first page. Michael Pointon’s name was incorrectly recorded as “Michelle”. Ms Hipkiss described this as a typographical error which neither she nor Joan “picked up”.
[46] In the course of Judith’s cross-examination about Joan’s testamentary capacity, the proposition was put to her that Joan was getting muddled. In particular there was reference to a statement by Judith in an email to Romiley dated 6 March 2016:
Grandma is fine – grumpy and complaining some days and better other days – she has been doing some crosswords which I help her with when she is stuck (I cheat and look up synonyms on my ph) her spelling gets muddled sometimes so that puts her wrong but otherwise she makes a good go of it. She still manages the Herald Code Cracker most days so that’s pretty good!
[47] Judith’s response to the question is informative on Joan’s spelling capability:
[48] Given both Joan’s language proficiency and the great interest which it was said that she took in her grandchildren, we consider that had Joan read the document she would likely have noticed such a conspicuous error as to the name and gender of her grandchild. If, as Ms Hipkiss asserted, the document had been read to Joan verbatim we consider that likewise Joan would have noticed such an error. Hence we infer that Ms Hipkiss must have conveyed to Joan no more than a summary of the contents of the document.
[49] Peter’s funeral was held in Hamilton the following day and that evening Judith returned to Papamoa. Judith explained:
[50] With reference to that evidence, we note the following points. The first reason attributed to Joan represented a significant change from the equal distribution to each side of the family reflected in the 1992, 2009 and 2011 Wills. Ms Hosking, counsel for the appellants, submitted that the effect of the 2015 and 2016 Wills resulted in Judith and her family receiving 93.75 per cent of Joan’s estate and the appellants receiving 6.25 per cent.
[51] Secondly, the explanation in respect of Romiley does not sit easily with the reason which Ms Hipkiss recorded in her report[34] about Joan’s apprehensions concerning Peter’s loan to Romiley’s husband.
[52] Thirdly, with reference to Judith’s surprise at the speed with which the 2011 Will was completed, we note the Judge’s observation about the reliability of Judith’s evidence concerning the will-making arrangements:[35]
It is not apparent whether Ms Hipkiss had already set up an appointment with Joan when she met with the Pointons or whether the appointment was made afterwards. This bears on the reliability of Judith’s statement that she was unaware of her mother’s appointment and on her “expectation” that Fenton McFadden would take some time to make the arrangements with Joan to take her instructions.
The reasons for the Judge’s conclusion
[53] If the relevant events comprised no more than those reviewed above, then the circumstantial evidence would not sustain a finding of undue influence by Judith. However, as the Judge observed, the case is unusual because of the evidence of Joan’s statement to the appellants.[36]
[54] We have earlier recited Romiley’s description of the critical interaction with Joan and the Judge’s observation that if the evidence is taken at face value there were two occasions on which the subject of Joan’s will change came up.[37] The Judge went on to refer to Romiley’s cross-examination and to Ashley’s evidence, noting that Ashley was only present for part of the discussion with Joan.[38]
[55] The Judge then noted the absence of direct evidence of bullying by Judith:[39]
... There was no direct evidence of bullying by Judith by friends or staff at Somervale. No staff member at Somervale witnessed any untoward behaviour by Judith. There was no evidence suggesting that Joan made any similar statements to staff. Dr Coster [Joan’s general practitioner] too did not witness any unusual dynamic in the relationship. Joan said nothing to Ms Henderson or Ms Hipkiss that alerted them to any potential issues. This is notwithstanding Joan saw Ms Hipkiss on her own and apparently spoke with Ms Henderson without anyone else present.
The Judge also observed that the evidence of the conversation with Joan was from parties who wished to benefit from having both the 2016 and 2015 Wills overturned. Notwithstanding those apparent reservations the Judge then concluded:[40]
Nonetheless, I accept that an interaction between Joan, Romiley and Ashley took place in the days after Peter’s funeral and their account is generally truthful about what Joan said to them. The real question is what to make of these statements.
[56] The Judge identified the nub of the case as being whether Joan’s statement to Romiley and Ashley was reliable evidence of undue influence, posing the question: “What did Joan mean?”[41] The Judge considered there was more than one possibility and proceeded to identify two:
(a) the 2015 Will did not truly reflect Joan’s wishes and Judith had suborned her independent will;[42] or(b) Joan was defensive about the effect of her new testamentary wishes on Ashley and Romiley and sought to deflect responsibility with an off‑hand statement about Judith.[43]
[57] The Judge analysed the first possibility in this way:
[175] Factors supporting the first possibility are: first, the haste in making changes to her Will so quickly after her son’s death. Secondly, dependence on Judith’s emotional support with concomitant power to overbear Joan’s will combined with Judith’s control over Joan’s finances once Peter died. Thirdly, Judith’s “involvement” in the 2016 Will which favoured her husband.
[176] On balance, I take little from the haste with which Joan instructed Fenton McFadden and the speed with which she executed a new Will. It is natural not to be dilatory at the age of 97 if one wants to change a will. The death of her son would have understandably spurred her to refocus her testamentary wishes. There had clearly been discussion with Judith on the subject of wills after Judith witnessed Ashley trying to locate his father’s will. Both Romiley and Ashley downplayed this as an explanation constructed by Judith to justify the changes to Joan’s Will. However, I accept that Judith’s perception, rightly or wrongly, was that locating Peter’s Will was an added strain and explains why the subject of wills came up with Joan.
[177] Judith was not with her mother when the will instructions were given. Nor was she with her on signing of the will. She was in Auckland. Thus, Joan had an opportunity to raise the issue with Ms Hipkiss if she felt any pressure to make changes to her Will or to ask to speak with Ms Henderson with whom she had more of a relationship.
[178] Moreover, if Joan regretted making the changes, there were opportunities to rectify this, culminating in Joan’s discussion with Ms Henderson before the 2016 Will change. Judith also gave evidence that she specifically discussed with her mother the “uneven” split in her Will just months before her death. This was said to be at Ms Henderson’s suggestion but that her mother was steadfast in wanting the division in the 2016 Will to remain.
(Footnote omitted.)
[58] Addressing the second possibility the Judge simply commented:
[179] A second possibility is that Joan was defensive about the effect of her new testamentary wishes on Ashley and Romiley and sought to deflect responsibility with an off-hand statement about Judith. That however begs the question why she would have mentioned her Will at all.
[59] Although the evidential basis for the description of Joan’s statement as “off‑hand” is not apparent, the reference to deflecting responsibility has a vague echo of Judith’s construction of events in her evidence:
[60] Judith then proceeded to describe Joan’s informal use of the word “bullied”:
[61] We do not consider that the content of Joan’s statements could seriously be viewed as being teasing or jesting in nature. Nor would it have been credible to suggest that it was the appellants who first raised the issue with Joan and that by way of response she explained that Judith had instigated the changes reflected in the 2015 Will. The Judge’s begging the question comment[44] reflects her perception that it must have been Joan, not the appellants, who broached the fact of the recently made will.
[62] The Judge concluded that the 2015 Will was not the result of any undue influence for the following reasons:
[180] No-one can really know what Joan meant when she spoke with Ashley and Romiley about her Will. I have concluded that the statements are sufficiently equivocal such that they do not of themselves establish undue influence when weighed against other evidence. There are three reasons. First, the idea that Joan felt that her Will did not reflect her true wishes and yet did nothing about it or mention that to anyone else does not sit easily with the evidence given of Joan’s character and personality. Secondly, the application of pressure by Judith overbearing Joan’s free will is inconsistent with the descriptions by care staff and others of Judith’s care of and relationship with her mother while she lived at Somervale, and Judith’s character as I assessed it while she gave evidence. There is no evidence of controlling behaviour from anyone who knew Joan and Judith and could have [been] expected to have some insight. At most, I consider that Joan felt the weight of her ties of affection to Judith, deep appreciation for all that Judith and her husband did for her for many years and concern about Judith and Christopher’s financial future. Thirdly, I consider that the underlying reason why Romiley and Ashley did not make further investigation at the time is because they too felt the statements in their context were more equivocal than the bare words suggest.
Discussion
[63] This process of reasoning demands careful analysis. It commences with the opinion that Joan’s statements were equivocal to an unspecified degree. The nature of the perceived ambiguity is elaborated upon in the last sentence where a distinction is drawn between the meaning of the “bare” words as compared with the more equivocal “statements in their context”. Thus it appears that the Judge considered that the context in which the statements were made diluted the meaning which the actual words would otherwise convey. The circumstances which comprised “their context” were not further elaborated.
[64] We find this reasoning problematic for these reasons. The evidence of the appellants about their interaction with Joan, while not verbatim, was reasonably specific. The Judge found that the appellants’ account of what Joan said was generally truthful.[45] The Judge identified two possible meanings for Joan’s statements. The first was that Joan’s account, that she had been coerced by Judith into changing her will, was truthful. The second, while diplomatically phrased, was in essence that Joan’s statement was untrue: Judith did not coerce Joan into changing her will. The Judge did not identify a third possibility, namely that Joan’s statements were so vague or imprecise that no meaning could safely be attributed to them. However in her conclusion the incorporation of such a third possibility may be discerned from the second sentence where “sufficiently equivocal” statements are weighed against inferences drawn from conduct.
[65] We do not view the statements attributed to Joan as equivocal. The word “bullied” could potentially encompass a spectrum of conduct. However it must be read in the context of Joan’s preceding words, which in their totality signal an absence of choice, make explicit reference to time pressure, and reveal Joan’s anxiety occasioned by her recognition of her dependency on Judith in the changed circumstances where Peter and the appellants would now all absent from the scene. In our view the answer to the Judge’s question “What did Joan mean?” does not lie in a perceived degree of ambiguity in her statements to the appellants. Hence we do not consider that in undertaking the evidence weighing exercise the Judge was justified in diluting the significance to be accorded to Joan’s express words.
[66] It is not unknown for testators to foreshadow intended bequests. But it seems to us that a testator might be less inclined to inform a person that a bequest in their favour has been reduced or removed. The contents of the will would be revealed in due course on the testator’s death, so why would the testator risk unnecessarily a chill in relations and possible acrimony in advance. Suffice to say that it is not a conversation one would broach lightly. Yet Joan chose to embark on that course. Indeed she did so on the occasion of her first meeting with the appellants since their father’s death. That timing might suggest that she felt some compulsion to inform them. We incline to the view that would be consistent with the first possibility identified by the Judge, namely that Joan’s statements were true.
[67] Conversely, if the statements were not true, why inform the appellants of the change at all? And more perplexingly, why attempt to deflect any negative reaction of the appellants by falsely placing the blame at Judith’s door? Joan must have recognised the possibility (if not the probability) that Judith would eventually learn that the change in the will had been wrongly attributed to her. That was not a course calculated to maintain harmonious relations with the daughter on whom Joan realised she was now even more dependent.
[68] We turn to address the “other evidence” which caused the Judge to conclude that, notwithstanding Joan’s statements, the 2015 Will was not the result of any undue influence. That other evidence comprises inferences drawn from the conduct of the key players, namely:[46]
(a) inaction on the part of Joan;(b) the absence of observed instances of Judith pressuring Joan; and
(c) the failure of the appellants to undertake further investigation of Joan’s allegations.
[69] In testamentary matters it is certainly conceivable that a testator might discuss concerns with family members. If Peter had been alive, Joan would no doubt have raised with him a concern of such a nature. The appellants would be the next obvious people in whom to confide. However, given the nature of the allegation (bullying by Judith), it cannot be expected that Joan would voice her anxiety with any member of the Pointon family. It is possible, given the proximity of the making of the 2015 Will to the date of Peter’s funeral, that Joan might have confided in the person who kept her company on the day of the funeral. However because Judith refused to disclose the name of that person, that line of inquiry could not be successfully pursued.
[70] The Judge was influenced by the fact that Joan “did nothing about it or mention that to anyone else”. It is not apparent whether by the use of the disjunctive the Judge envisaged some formal steps by Joan distinct from merely an expression of concern. Judith questioned whether Joan even made the statements to the appellants. Her cross‑examination included the following exchange:
Nevertheless the Judge accepted that the appellants’ account of their interaction with Joan was generally truthful.
[71] Having confided in the appellants, in our view it is unlikely, given the evidence as to Joan’s private nature, that Joan would have proceeded to also register her concerns with the management of Somervale. This is particularly so given the reality that it was Judith who would be the rest home’s primary point of contact concerning Joan’s care and welfare.
[72] The second factor which weighed with the Judge was the absence of evidence of controlling behaviour on Judith’s part. We consider that there are two difficulties in this line of reasoning. First, assuming Judith’s objective was to secure a change to Joan’s will, there would be no need to exert control in respect of other matters, particularly following the execution of the 2015 Will. Secondly, the behaviour which culminated in the making of the 2015 Will appears to have been comparatively subtle and of the behind-closed-doors variety.[47]
[73] The third reason reverts to the issue of equivocation and attributes to the appellants an acceptance of such equivocation based on the Judge’s perception that they elected not take further steps at the time. However, dismayed by Joan’s statements, the appellants proceeded to consult not one but two lawyers, both of whom had been friends of their father. Those discussions were relied upon, as the Judge described it, “to explain why [the appellants] took no steps to intervene or ‘protect’ their grandmother”.[48]
[74] The Judge did not consider that the evidence of the lawyers, Messrs Clews and Walters, provided an adequate explanation, reasoning as follows:
[168] Romiley’s evidence is that the lawyers expressed concern about the comments but also advised that there was little that Ashley and she could do while her grandmother was alive. That may be a curious stance if told that a will-maker had said they were bullied to make a will. It is more explicable if all that was communicated was a fear of a will change to their detriment due to ‘pressure’ rather than the more unsettling bullying allegation. The former is a more general and unsubstantiated opinion. The latter, a more serious issue.
[169] Mr Clews states in his affidavit that Romiley and Ashley expressed clear concern over the future of their grandmother’s estate. He stated
Romiley was clear in expressing the pressure being put upon Joan Gorringe by Judith Pointon her daughter. She approached the topic on several occasions and was very concerned about what could be done.
Although I saw no testamentary documents in relation to Joan Gorringe’s Estate Romiley made it clear that their Aunt Judith Pointon was talking about the fact that there were two Gorringe Grandchildren and three Pointon Grandchildren; and that Joan Gorringe’s Estate should be divided equally among the five children of she and Peter.
Without having seen any testamentary documents I was just a willing “ear” to their concerns, but it was very clear to me that they held very deep fears about Joan Gorringe’s Will being changed to their detriment and against their grandmother’s true wishes.
[170] Mr Clews does not expressly refer to being told of the precise words said to have been used by Joan to Ashley and Romiley. He told them that nothing could be done while Joan was still alive. He deposes that he had a very clear recollection of the serious concerns they had (although his affidavit was sworn in July 2020). Given that clear recollection, had he been expressly told of the particulars of the discussions between the plaintiffs and Joan, I consider that he would have mentioned them directly. It follows that when Mr Clews said nothing could be done, he was talking expressly about sighting the will rather than that nothing could be done to protect Joan or to investigate the allegation.
[171] Mr Walter’s signed statement, which I allowed to be put in evidence for limited purposes, is more explicit. Given that Mr Walter was a retired solicitor, and cognisant of the import of a statement, I can reasonably assume that he would have taken care in its preparation, though it was not sworn. The statement records:
Romiley and Ashley expressed some concern that their grandmother Joan Gorringe had changed her will shortly after Peter’s death. Romiley stated that her grandmother had told her that she felt “bullied” into the changes. I was not a party to that discussion between Romiley and her grandmother but I was informed of the changes in general terms fairly soon (probably several weeks or months) after Peter’s death.
... Romiley and Ashley were keen to clarify the contents of the will but my advice was that of course they were not entitled to see the will, certainly not while Mrs Joan Gorringe was alive. Also, Romiley and Ashley were adamant that they did not wish to upset their grandmother by raising issues with her.
[172] Based on this evidence, neither lawyer to whom Ashley and Romiley turned discussed steps that might be taken to ensure their grandmother’s protection should the accusation be made out or even to investigate the accusation. Mr Clews appears not to have been told. Mr Walters was told [the appellants] did not wish to upset their grandmother. Materially, both solicitors commented to [the appellants] that people regularly change their wills.
[173] Thus, I have concluded that the evidence of Mr Clews and Mr Walters is limited corroboration and, in my assessment, does not adequately explain why neither Romiley nor Ashley took further steps at the time.
[75] From what Joan had said to them, the appellants had no reason to suspect that Judith had exerted, or was continuing to exert, any pressure on Joan otherwise than in respect of the distribution of her estate. Hence any question of ongoing “protection” of Joan would appear to have been confined to that matter. The appellants were advised, correctly, that they were not entitled to see the 2015 Will prior to Joan’s death. They were led to believe that in the meantime there was little that they could do, at least not without placing Joan in an awkward situation. There was no suggestion that the appellants were not genuine in their desire to avoid upsetting their grandmother.
[76] The Judge did not spell out the nature of the “further steps” which she considered were available to the appellants. However, whatever the Judge may have had in contemplation, in the circumstances above we are unable to endorse the Judge’s conclusion that the appellants’ explanation for failing to take such steps was inadequate. At worst the appellants acted cautiously and with the overriding objective to avoid creating a difficult situation for Joan.
[77] The essential issue, as this Court stated in Green v Green, is whether the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence has been evaluated as a whole.[49] The evidence which provided the basis for the Judge’s conclusion that undue influence on Judith’s part was not established comprised in essence her first and second reasons,[50] both of which were the absence of observed conduct on the part of Joan and Judith respectively. The third reason is not in fact evidence contrary to the first of the possibilities identified by the Judge, but rather perceived corroboration of her assessment of Joan’s statements as equivocal.
[78] On the other side of the ledger, there is no doubt that the statements were made. There was no challenge on appeal to the Judge’s finding that the appellants’ account was generally truthful.[51] As the Judge recognised, such evidence was not only unusual but central to the appellants’ case.[52] The Judge in effect concluded that the inferences involved in her first and second reasons outweighed the evidence of Joan’s statements for the reason that those statements were “sufficiently equivocal”. As earlier explained, we disagree with that assessment.[53] On the evidence as found, there is no room for a third possibility. Joan’s statements to the appellants were either truthful or they were not.
[79] We have inferred that Joan’s statements were volunteered.[54] They cannot be dismissed as “off-hand”. She must have realised that the appellants would be disappointed, to say the least, by her disclosure. However, given the evidence about Joan’s character,[55] it seems improbable that she would have invented a mischievous, arguably wicked, story about pressure by Judith. Our review of the evidence suggests that the first of the Judge’s possibilities, that Joan’s account was truthful, is the more probable inference. Consequently we conclude that the particular evidence adduced in this case sustains the allegation that the 2015 Will was the result of undue influence by Judith.
[80] However that is not the end of the matter. The 2015 Will was not Joan’s operative will. Our conclusion concerning the 2015 Will cannot avail the appellants if Joan made a subsequent valid will. Judith contends that the 2016 Will, which was said to involve Joan “doubling down” on her wishes, was free of any undue influence. In order to succeed on their claim the appellants must establish that the 2016 Will was also the product of undue influence, either derived from the 2015 Will or as a consequence of further conduct on Judith’s part, or a combination of both. Consequently we turn to consider the circumstances pertaining to the 2016 Will.
Did the Judge err in finding there was no undue influence in respect of the 2016 Will?
Another discussion about wills
[81] It seems clear that the 2016 Will was also prompted by discussions between Judith and Joan. Judith stated:
It was established in cross-examination that the discussion about Christopher’s potential situation took place during a visit by Judith to Somervale on Sunday 6 March 2016.
Instructions for the 2016 Will
[82] The following day Joan spoke by telephone with Ms Henderson, who recounted their conversation in this way:
It was Ms Henderson’s recollection that Joan said that she would make an appointment “to pop into the office and sign the Will”.
[83] Ms Henderson made the following file note of the conversation:
It reads:
7/3
T1 Joan
If Judy dies – all g/kids
Protection of Chris re help/to date.
Closer to their kids BUT Judy/Chris could spend the lot/rest home care ok.
Update Will so if Judy gone then Chris. No g/o if Chris gone too then to revert to all g/kids.
[84] Ms Hipkiss, who was then working in the firm’s Te Puke office, was assigned the task of drafting the new will and was provided with Ms Henderson’s handwritten file note. She did not have any discussion with Joan about the new will and she was not involved in the execution process. Her involvement was confined to preparing the draft will and responding to an inquiry from Judith. It is apparent that Ms Hipkiss did not act on those instructions immediately. A file for the new will was opened on the following Monday 14 March 2016.
Judith contacts Fenton McFadden
[85] On Friday 11 March Judith telephoned Fenton McFadden about Joan’s will. Leanne Underwood of the firm’s Papamoa office sent an email to Ms Hipkiss at 10.15 am that day with the following subject line: “Plse phone Judy Pointon – Re: Joan Gorringe Will” and noting Judith’s mobile phone number. The email recited two questions:
Questions:
Are the shares included in the Will?
Should Judy pass away before her mother, what happens to her estate?
[86] Although Ms Hipkiss did not recall her subsequent telephone discussion with Judith, her affidavit stated that she never discussed a client’s will with anyone but the client. However her email reply to Ms Underwood at 10.23 am on Monday 14 March stated:
Hi
I have spoken with Mrs Pointon and got that sorted.
Can you please open a new file for Mrs Gorringe 9969 re – WILL
And use same contact details and then give it to Sue to bring over for me tomorrow thanks.
[87] Judith had no memory of the telephone discussion with Ms Hipkiss although acknowledged it occurred. Her cross-examination concerning her communication with the Papamoa office was brief:
[88] Ms Hipkiss sent a further email to Ms Underwood on the following day, 15 March:
I have drafted the will for Joan
Can you please call her daughter Judith [phone number] and let her know
She will need to just arrange a time to pick up her mother and bring her to the office to the sign the Will
It was only a minor change so no need to make an appointment with Sue just make sure she brings her in at a time there are two of you there to witness
[89] Like the 2015 Will, the new draft was a simple document. The only change was to the residue clause which stated:
Residue
4. My trustee shall hold the rest of my estate (“the residue”) as follows:
(a) To pay my debts, duties, funeral expenses and administration expenses.(b) To distribute the balance to my daughter JUDITH ANNE POINTON should she survive me PROVIDED HOWEVER that if my said daughter does not survive me then to my son-in-law CHRISTOPHER DAVID POINTON.
The draft will did not contain a clause making provision for Joan’s estate to be distributed equally among her grandchildren in the event that Christopher predeceased her.
Execution of the 2016 Will
[90] Ms Henderson had expected that Joan would be brought to the office to execute the will and it was held at reception for that purpose. However Judith collected it on 15 March and the following day took it to the Joan at Somervale.
[91] As noted above,[56] Judith asserted that Joan read the 2016 Will. We find that surprising for two reasons. First, the 2016 Will contained the same conspicuous error in the spelling of Michael’s name. The Judge commented that had Judith read the 2016 Will, she would have picked up the error.[57] As with the 2015 Will,[58] we consider that Joan would also have spotted this mistake. Secondly, the 2016 Will did not contain a clause in accordance with Joan’s instructions to Ms Henderson providing for her estate to be distributed equally to her grandchildren in the event that Christopher predeceased her.[59]
The reasons for the Judge’s conclusion
[92] As earlier noted, the Judge accepted that Judith’s relationship with Joan was one of trust and confidence[60] and, apparently accepting that the principles governing inter vivos transactions were likewise applicable in this case,[61] proceeded to consider whether the 2016 Will called for explanation. We set out the Judge’s statement of conclusions in full:
[189] I also find that the contents of the 2016 Will call for explanation based on Ms Henderson’s evidence that leaving the residue to Joan’s son-in-law, Christopher if Judith died before Joan, was a less common approach. This is not the same thing however as finding that the 2016 Will was irrational on its face. I reject the proposition that the 2015 Will calls for explanation for the reasons previously set out.
[190] I am satisfied that the fact that Ms Henderson asked for and received a rational explanation for the change to the 2016 Will is cogent evidence that Joan was not operating under undue influence in respect of the 2016 Will, or inferentially in respect of the 2015 Will. [Counsel for Judith] aptly described the instructions given for the 2016 Will as “doubling down” on the 2015 Will. As discussed above, I accept that the explanation given to Ms Henderson was not one which invites the Court’s suspicion in the circumstances of this case.
[191] There is no evidence that Judith had anything to do with the 2016 Will other than picking it up from Fenton McFadden and delivering it back to Fenton McFadden after it was signed. She describes herself in her affidavit evidence as “just a messenger”. Judith’s evidence is that her mother did not discuss the contents of the 2016 Will with her but rather telephoned Fenton McFadden herself. However, she also freely admits that she had discussed with her mother her own strained financial circumstances and her concerns about what would happen to her husband should she die before Joan. It is regrettable that the 2016 Will was executed in these circumstances. This was another instance of an insufficiently rigorous process in respect of an elderly client.
[192] For all the reasons discussed above, I have come to the view that the evidence does not establish that Joan’s 2016 Will was the result of any undue influence. Accordingly, I dismiss this head of claim and uphold the 2016 Will. While not strictly necessary, I also find that the 2015 Will was also not the result of any undue influence.
(Footnotes omitted.)
Discussion: the events of 2016 in isolation
[93] We first address the events in 2016 in isolation before turning to consider the implications (if any) of those relating to the execution of the 2015 Will.
[94] Ms Henderson did not recall the whole content of her telephone conversation with Joan which, she accepted in cross-examination, was both unscheduled and relatively brief. However the unusual nature of the residue provision in the 2016 Will was the reason she advanced for her clarity of recollection of that particular subject:
[95] Whereas Ms Hipkiss viewed the change as only minor, Ms Henderson considered it was important and envisaged that whoever was going to witness the will should have “gone through it with [Joan]”. Her cross-examination on this point concluded in this way:
Q. And [they should] have taken notes about that shouldn’t they?
A. Mmm they should have. But instead it was uplifted in any case.
[96] In the result, the 2016 Will was taken to Somervale by Judith who delivered it back to Fenton McFadden after its execution by Joan. Judith was in attendance throughout. There was no opportunity for Joan to receive legal advice, whether independent or otherwise. We unreservedly endorse the Judge’s criticisms of the process for making the 2016 Will.[62]
[97] Furthermore Ms Hosking made the point that the Judge appears to have overlooked the fact of the communications between Judith and Fenton McFadden in the week between the taking of the instruction and the preparation of the draft will. That criticism appears justified given the Judge’s observations about the limited extent of Judith’s involvement.[63] Ms Henderson was unaware of those communications. Although she had “no idea” as to what Ms Hipkiss would have said in relation to Judith’s second question, nor as to what “got that sorted”[64] meant, she did not think that Ms Hipkiss would have given any information to Judith about Joan’s will. Neither Judith nor Ms Hipkiss could throw light on what transpired. However the very fact of such communications in this relevant period adds to the concern about the will‑making process. It also serves to underscore Judith’s active interest in the outcome.
[98] Notwithstanding that the course of making the 2016 Will was unsatisfactory in almost every respect, if the starting point for consideration of the challenge to the 2016 Will was the events of March 2016, we do not consider that a court could be satisfied that the circumstances raised a more probable inference in favour of undue influence by Judith than not.
Discussion: the combination of events in 2015 and 2016
[99] The Judge plainly viewed the nature of the change in the 2016 Will as an endorsement or reiteration of the amendment to the residue clause in the 2015 Will. She considered “apt” counsel for Judith’s description of the 2016 instructions as a “doubling down” on the 2015 Will.[65] However, given our conclusion that the 2015 Will was the consequence of undue influence on Judith’s part, the recommitment characterisation is not appropriate. The correct issue is whether, despite the undue influence that would have invalidated the 2015 Will, the 2016 Will was a reflection of Joan’s free choice.
[100] It is an idle exercise to seek to identify the point in time when, as the respondents necessarily contend, Joan no longer felt under pressure from Judith and would have made her bequest in favour of Judith voluntarily. If such a volte‑face occurred, it would not have necessitated any change to the 2015 Will. Thus it would not have been manifested by any particular conduct. Certainly there is nothing in the evidence which demonstrates such a change of heart — but nor would there be.
[101] This point was usefully highlighted by the proposition advanced in Judith’s evidence that in 2016 Joan did not change her will to remove the provision made for Judith in 2015, “which she could easily have done if she had not wanted to make the earlier change”.[66] We do not agree with this. The change in 2016 was to confer on Christopher the benefit Judith would have received under the 2015 Will, had she predeceased Joan. Provision for Christopher could not have been made in 2016 concurrently with removal of the 2015 bequest to Judith, either “easily” or at all.
[102] In effect Judith complains that at no point subsequent to the 2015 Will did Joan make a further will revoking the residue provision in that will. However Joan’s omission to do so is consistent with a state of undue influence prevailing. If Joan did feel sufficiently emboldened to reverse her 2015 direction, then the day immediately following the 6 March 2016 discussion with Judith about Christopher’s situation does not seem an obvious choice.
[103] We consider that when the 2016 Will was made it is more likely than not that Joan remained subject to undue influence from Judith. First, the period of time between the two wills, a little less than four months, was comparatively short. Secondly, the evidence was that Joan raised the undue influence complaint with Romiley on at least a second occasion when Romiley returned to New Zealand to arrange the sale of Peter’s house.[67] If in the interim Joan had decided of her own volition that the bequest to Judith was what she actually desired, then why register an outdated complaint with Romiley on the second occasion? Thirdly, against the backdrop of our finding of undue influence in respect of the 2015 Will, Judith’s involvement in the arrangements for execution of the 2016 Will, including her being present while the will was signed, is consistent with Joan continuing to feel subject to Judith’s influence. In our view the further provision for Christopher is concordant with the “drip drip” phenomenon.[68]
[104] The Judge considered that the rational explanation which Joan provided to Ms Henderson on 7 March 2016 was cogent evidence that Joan was not operating under undue influence, either in respect of the 2016 Will or “inferentially in respect of the 2015 Will”.[69] However, the fact that Joan conveyed the coherent reason which she had discussed with Judith the previous day does not of itself preclude undue influence. Ms Hipkiss had similarly found Joan clear and lucid in her instructions on 17 November 2015.
Our conclusion
[105] The issue in this case is not whether Judith was a dutiful daughter. The issue is whether when Joan made her 2015 and 2016 Wills she did so while under undue influence. That question must be answered solely by reference to the evidence adduced in this case.
[106] As the Judge recognised, evidentially this is an unusual case.[70] That Joan made the statements about Judith’s influence is not in issue. Unlike the Judge, we do not consider those statements can be discounted as being “equivocal”. Their meaning is clear. We have concluded that Joan was not making them up. The statements were made close in time to the execution of the 2015 Will. They were repeated late in 2016 subsequent to the execution of the 2016 Will.
[107] The 2015 Will was made very shortly after Peter’s death and prior to his funeral. While the Judge took little from the haste with which the new will was prepared and executed,[71] we view it less benignly, particularly in view of the reference in Joan’s statements to the short period since Peter’s death.[72]
[108] Additional considerations are:
(a) Joan’s age — she was 97 when she executed the 2015 Will;(b) in respect of the 2015 Will, her understandably shocked and sad state — as Joan said at the time, she was expecting Peter to visit her on the weekend to tell her about his having walked the Camino de Santiago trail;
(c) Joan’s physical state, which precluded her attending the funeral;
(d) her increased reliance on Judith, in particular for the administration of her affairs;
(e) the significance of the change in 2015 from her previous wills without the benefit of independent advice;
(f) the unusual nature of the residue provision in the 2016 Will and the absence of independent advice on it; and
(g) Judith’s several discussions with Joan concerning wills, Judith’s involvement in arranging the instructions for the 2015 Will (although Judith was not in attendance when the 2015 Will was executed) and her more broad involvement in relation to the 2016 Will.
[109] Cumulatively, this evidence satisfies us that the circumstances raise an inference in favour of the appellants’ allegation of undue influence on Judith’s part which is more probable than not.[73]
[110] In reaching this conclusion we do not place any material weight on two other pieces of evidence. The first is a typed file note by Ms Henderson, dated 10 April 2017, of a meeting to discuss some questions from Judith. The file note records Ms Henderson’s suggestion that Judith might care to do some balancing in her will, taking into account the uneven split between her and Peter’s sides. The file note then records:
... [Judith] skirted over that, but did make clear she had turned down a suggestion made by Joan that Joan leave funds to Judith’s grandchildren (Joan’s Great grandkids on Judith’s side).
That engagement is not informative on Joan’s state of mind at the relevant times.
[111] Secondly, Judith gave evidence of a discussion with Joan about the “uneven” split in her 2016 Will during which Joan was said to have been steadfast that she did not want to make changes. This was said to have occurred four months before Joan’s death at a time when, as the Judge noted, the question of capacity may have been more acute.[74] Judith claimed that the discussion was prompted by a suggestion from Ms Henderson, but Ms Henderson had no recollection of making such a suggestion.[75] Quite apart from the uncorroborated nature of the evidence, the discussion occurred years after the dates on which the wills in question were made. We do not consider that it has any material bearing on Joan’s freedom of choice at the material times.
[112] Finally we record that we have not taken into account the extensive reliance by the appellants on the alleged inappropriate expenditure by Judith of Joan’s funds.
Result
[113] The appeal is allowed. We make orders as sought in the statement of claim as follows:
(a) Order declaring the 2015 Will invalid on the ground that it was procured by undue influence.(b) Order declaring the 2016 Will invalid on the ground that it was procured by undue influence.
(c) Order granting probate of the will dated 7 June 2011.
(d) Order appointing independent executors and trustees of Joan’s estate.
[114] The issue of costs, both in this Court and in the High Court, is
reserved. We grant leave to the parties to file written submissions
on the
issue of costs in this Court, and on which costs orders of the High Court
should be set aside and the orders that should replace
them. Such submissions
should address not only the quantum and allocation of costs but also whether
costs should be reimbursed from
Joan’s estate and whether the successful
parties’ actual costs should be so reimbursed. The appellants’
submissions
are to be filed and served by 21 March 2023 and
the respondents’ submissions are to be filed and served by 4 April
2023.
Solicitors:
Phillips & Co Law Ltd, Rotorua
for Appellants
Cooney Lees Morgan, Tauranga for Respondents
[1] Together with other articles of personal or household use or ornament but excluding any cars.
[2] Being a provision specifying who would receive the residue should the designated recipient(s) predecease Joan.
[3] Gorringe v Pointon [2022] NZHC 342 [High Court judgment].
[4] High Court judgment, above n 3, at [53].
[5] At [56].
[6] High Court judgment, above n 3.
[7] At [63].
[8] At [149]–[150].
[9] Green v Green [2015] NZHC 1218, (2015) 4 NZTR 25-017 [Green v Green (HC)] at [100]–[101]; and Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 [Green v Green (CA)] at [35]. Reference was also made to observations of Fisher J in Hayden v Simeti HC Auckland P1042/92, 14 May 1993.
[10] High Court judgment, above n 3, at [157], citing Hayden v Simeti, above n 9, at 11.
[11] High Court judgment, above n 3, at [166].
[12] At [180].
[13] Carey v Norton [1997] NZCA 312; [1998] 1 NZLR 661 (CA) at 663 per Thomas J and 668–673 per Keith and Williams JJ.
[14] Green v Green (HC), above n 9, at [101(a)].
[15] High Court judgment, above n 3, at [153], referring to observations of Elias J in Norton v Carey HC Auckland M191/95, 1 July 1996 at 51–52.
[16] High Court judgment, above n 3, at [188].
[17] Carey v Norton, above n 13.
[18] Green v Green (CA), above n 9, at [35] and [48], approving Winkelmann J’s summary of the relevant principles in Green v Green (HC), above n 9, at [100].
[19] Green v Green (HC), above n 9, at [101] (footnotes omitted).
[20] Alexander Learmonth and others Theobald on Wills (9th ed, Thomson Reuters, London, 2021) at [4-060].
[21] Green v Green (CA), above n 9, at [45]–[47].
[22] At [47] (footnotes omitted).
[23] Learmonth and others, above n 20, at [4-060].
[24] At [4-061].
[25] Re Edwards [2007] EWHC 1119 (Ch), [2007] WTLR 1387 at [47(vi)].
[26] Green v Green (HC), above n 9, at [100(h)].
[27] High Court judgment, above n 3.
[28] At [35].
[29] At [36].
[30] Although both Peter and Judith were named as trustees, the will provided for the survivor of them to be the trustee.
[31] High Court judgment, above n 3, at [45].
[32] See [8] above.
[33] High Court judgment, above n 3, at [52].
[34] At [43] above.
[35] High Court judgment, above n 3, at [38].
[36] At [158].
[37] At [12]–[13] above.
[38] High Court judgment, above n 3, at [161]–[165].
[39] At [165].
[40] At [166].
[41] At [174].
[42] At [174].
[43] At [179].
[44] See [58] above.
[45] High Court judgment, above n 3, at [166].
[46] At [180].
[47] See [26] above
[48] High Court judgment, above n 3, at [167].
[49] Green v Green (CA), above n 9, at [47]. See [29] above.
[50] See [68] above.
[51] High Court judgment, above n 3, at [166].
[52] At [158].
[53] At [65] above.
[54] At [61] above.
[55] See High Court judgment, above n 3, at [10], where the Judge commented that Joan was a formidable woman, described by family and friends as intelligent, dignified, sharp, well-informed and stoic.
[56] At [16] above.
[57] High Court judgment, above n 3, at [65].
[58] See discussion at [46]–[48] above.
[59] See High Court judgment, above n 3, at n 43, where the Judge observed the drafting of both the 2016 and 2015 Wills was problematic in light of s 23 of the Wills Act 2007 had the Pointons predeceased Joan.
[60] At [188].
[61] See [21]–[23] above.
[62] High Court judgment, above n 3, at [191]. See also at [97]–[99], in the context of the testamentary capacity challenge, commenting on the process followed in executing the 2015 and 2016 Wills.
[63] At [191]. The Judge, when
setting out the factual narrative relevant to all three claims advanced in the
High Court, did note that
Judith made contact with Fenton McFadden in the time
between the taking of instructions and the date on which the 2016 Will was
executed:
at [66]. However, the Judge made no mention of that contact when she
later came to assess the undue influence claim at
[150]–[192].
[64] See [86]
above.
[65] High Court judgment, above n 3, at [190].
[66] See [81] above.
[67] It is apparent from the record that this occurred several months after the 2016 Will was made.
[68] Re Edwards, above n 25, at [47(vi)], quoted at [29] above.
[69] High Court judgment, above n 3, at [190].
[70] At [158].
[71] At [176].
[72] See [12] above. Ms Henderson said that Fenton McFadden would usually suggest to clients to wait a few days to resolve things or would take a little while to get back to them with a draft will. However she understood that in this instance the firm was asked to attend to Joan’s will quite quickly.
[73] The test articulated in Green v Green (CA), above n 9, at [47], quoted at [27] above.
[74] High Court judgment, above n 3, at n 38.
[75] At [178] and [185].
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