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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV
2008-404-3712
UNDER Part VIII High Court Rules prior to
amendment by the High Court Amendment
(Wills Act) 2007
IN THE
MATTER OF the Estate of PAUL ANTONY MESSER
BETWEEN KALPAGE FELICIAN JOSEPH CEASAR
WEERASEKARA PERERA
Plaintiff
AND JENNIFER LYNLEY MESSER
Defendant
Hearing: 13
May 2009
Counsel: No appearance for the plaintiff (Mr D Mitchell present for part of the
proceeding)
A J Hayes for the defendant
Judgment: 22 May 2009 at 10.30 a.m.
JUDGMENT OF POTTER J
Following formal proof
In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment
with a delivery time of 10.30 a.m. on 22
May 2009.
Solicitors: Cook Morris Quinn, P O Box 1295, Shortland Street, Auckland 1140
Turner Hopkins, P O
Box 33237, Takapuna, Auckland 0740
Copy to: K F J C W Perera, No 66, Jayanthipura Road, Kurunegala 60000, Sri Lanka
Email: felicianperera@sltnet.lk
Ms Perera, email: berny_perera@yahoo.com
PERERA V MESSER HC AK CIV 2008-404-3712
22 May 2009
Introduction
[1] Paul Antony Messer died in Sri Lanka on 21 May 2006 aged 65 years. He is
survived by his wife,
Jennifer Lynley Messer, and two adult daughters who live in
New Zealand. Following Mr Messer's death two wills were discovered, the
earlier
made in New Zealand on 17 February 1984 ("the 1984 will"), the later made in Sri
Lanka on 7 December 2005 ("the 2005 will").
The 1984 will left all Mr Messer's
estate to his wife if she survived him for fourteen days and appointed her sole
executrix and
trustee of the will. The 2005 will divided the assets of Mr Messer, as
listed in a schedule to the will, equally between Mrs Messer
and Pathige Bernadeth
Niroshini Perera of Kurunegala, Sri Lanka ("Ms Perera") and appointed Kalpage
Felician Joseph Ceasar Weerasekara
Perera of Kurunegala, Sri Lanka, Attorney-at-
Law, (the plaintiff in this proceeding "Mr Perera") to be the sole executor of the
will.
Relief sought
[2] The defendant seeks the following orders from the Court:
a) A declaration that the
will dated 7 December 2005 is not proved in
solemn form and is invalid due to the mental incapacity of the maker
at the time; and
b) A grant of probate of the will dated 17 February 1984 in favour of the
defendant as the named executrix; and
c) That the temporary administrators of the estate of Paul Antony
Messer, Mr Laurent and Mr Kermode be discharged; and
d) The amount of approximately NZ$6,500 plus any
accrued interest
held in the Kurunegala District Court in relation to the deceased's
estate be released
to the defendant, Mrs Jennifer Messer;
e) The defendant's costs of and incidental to this proceeding be paid
from the estate.
Issues
[3] The essential issue in this proceeding is whether the 2005 will is valid. If it
is,
it has the effect of revoking the 1984 will. If it is not, the 1984 will remains in
force as the last will of Mr Messer. It is not
in dispute that the 1984 will is a valid
will.
Procedural background
[4] In summary: In 2006 Mrs Messer filed a caveat against
application for
administration under the Administration Act 1969 and a notice of choice of option A
under the Property (Relationships) Act 1976.
[5] On 20 February 2008 Mr Perera filed an application
on notice for an order
nisi in respect of a grant of probate of the 2005 will. He was represented by
solicitors in New Zealand who
filed the documents on his behalf.
[6] On 13 March 2008 Randerson J issued a minute inviting the parties to submit
an application
for interim administrators to be appointed under s 7 Administration
Act 1969 with power to realise the assets and otherwise to administer
the estate, but
with no power to distribute the assets listed in the 2005 will without the sanction of
the Court. He noted that the
beneficiary in Sri Lanka (Ms Perera) had not been
persuaded to obtain legal advice and that communications with her had been
difficult.
He said he was satisfied it was appropriate for an application for probate to
be made in solemn form and that the beneficiary in
Sri Lanka should be served with
that application.
[7] On 17 March 2008 an order was made by consent appointing Anthony
Graham
McInnes Kermode and Simon Lyall Laurent both of Auckland, solicitors, as
temporary administrators. At that time, Mr Kermode was representing
Mrs Messer
and Mr Laurent was representing Mr Perera. The assets listed in the schedule to the
order were subject to an order prohibiting
distribution by the temporary
administrators to Mrs Messer without further Court order. The schedule included
three residential properties
in New Zealand, two cars, an assurance policy with a
South African insurer and bank accounts in Sri Lanka and Auckland. These were
the
assets referred to in the schedule to the 2005 will. Further assets, not of significant
value, which were not mentioned in the
schedule to the 2005 will, were also listed.
These assets would pass to Mrs Messer under the intestacy provisions of the
Administration
Act 1969 if the 2005 will is valid. (Mr Kermode and Mr Laurent
continue as temporary administrators).
[8] On 23 June 2008 Mr
Perera filed proceedings seeking a grant in solemn form
of probate in his favour of the 2005 will. Mrs Messer was named as defendant.
[9] On 21 July 2008 Cooper J made an order giving directions as to service on
Ms Perera in relation to "... a copy of the originating
documents in respect of these
proceedings as well as all other documents required by law to be served during these
proceedings".
The order named two addresses at which Ms Perera could be served
and directed that service was to be effected by the New Zealand
Ministry of Foreign
Affairs & Trade.
[10] On 14 August 2008 this Court made an order for distribution to Mrs Messer
of the assets
not listed in the schedule to the 2005 will.
[11] Service of the original proceedings on Ms Perera including the statement of
claim dated 2 June 2008 and the notice of proceeding dated 13 June 2008 is deposed
to by Maria Patricia Shandrawathy Joseph in an
affidavit on the Court file, sworn 29
September 2008. It annexes receipts for the documents signed by Ms Perera dated
19 September
2008.
[12] Mrs Messer filed a statement of defence followed by an amended statement
of defence and counterclaim. By the counterclaim
she sought a grant of probate in
her favour of the 1984 will.
[13] On 29 October 2008 John Hansen J made an order for service
on Ms Perera
by email "in terms of the memorandum filed by Mr Morris dated 28 October 2008".
(This memorandum referred to apparent
failure to serve Ms Perera with the
originating proceedings and proposed that she be served by way of an attachment, to
the email
address with which she had communicated regularly with Mr Kermode
since June 2006). John Hansen J also made an "unless" order requiring
the plaintiff,
Mr Perera, to file a list of documents verified by affidavit within 28 days, in default
of which the matter was to
be set down for formal proof.
[14] On 19 November 2008 John Hansen J made orders granting leave for Mr
Laurent to withdraw as counsel for the plaintiff, that the plaintiff within 14 days by
email file a memorandum, to be served on the defendant, as to
the future conduct of
the proceeding, and that service on the plaintiff may be carried out by email in terms
of Mr Morris's memorandum
dated 28 October 2008.
[15] On 17 December 2008 John Hansen J ordered that the plaintiff's claim be
struck out for non-compliance
with his previous orders and directed that the matter
be set down for formal proof.
[16] Pursuant to the direction of John Hansen
J, the matter was set down for a
formal proof hearing on 13 May 2009 at 10 a.m. The Registry of this Court sent
notice of the hearing
date to the solicitors for the defendant and also notified Mr
Perera by post and email and Ms Perera by email.
[17] The defendant's
solicitor applied on 23 April 2009 for the matter to be dealt
with on the papers and the formal proof hearing dispensed with. Wylie
J reviewed
the file and issued a minute on 5 May 2009. He directed that the hearing on 13 May
2009 should proceed. (I shall return
to this minute subsequently).
[18] At the hearing on 13 May 2009 Mr Mitchell appeared for Mr Perera and
requested an adjournment
which was opposed by the defendant. I dismissed the
application (refer minute dated 13 May 2009). The formal proof hearing then
proceeded.
Minute of Wylie J 5 May 2009
[19] Wylie J's minute followed the application of counsel for the defendant in a
memorandum of
22 April 2009 that formal proof proceed on the papers. Having
reviewed the file Wylie J determined that the fixture allocated for
13 May 2009
should proceed to hearing. He raised a number of procedural and process matters
upon which he could not be satisfied
from his perusal of the file.
[20] In response to that minute, counsel for the defendant filed a detailed
memorandum dated 7
May 2009 and affidavits by David Christopher Stafford
Morris and Anthony Graham McInnes Kermode relating to filing and service of
relevant documents.
[21] The affidavit of Mr Morris refers to the manner in which the amended
statement of defence and counterclaim
dated (incorrectly) 31 July 2008 was filed.
He deposes that it was handed up to John Hansen J when Mr Morris appeared before
His
Honour on 29 October 2008 and accepted by the Judge. This explains why the
statement of defence and counterclaim are noted on the
Court file as "not registered".
[22] The statement of defence and counterclaim are referred to at paragraph 2.9 of
the memorandum
dated 28 October 2008 filed in relation to the telephone conference
before John Hansen J the following day, where it is stated by
Mr Morris that the
amended statement of defence incorporating the counterclaim is attached and "...
will be filed immediately". Mr
Morris explains that the date appearing on the cover
sheet of the document, 31 July 2008, is incorrect having been erroneously transposed
from the cover sheet to the statement of defence bearing that date and filed on 1
August 2008.
[23] Mr Morris also deposes to
service of the amended statement of defence and
counterclaim on Mr Laurent who was then solicitor for the plaintiff, by facsimile
on
28 October 2008. Exhibited to his affidavit is a copy of the facsimile transmission
cover sheet attaching this document, together
with the memorandum of counsel and
an affidavit of Mr Kermode sent by facsimile to the High Court and Mr Laurent on
28 October 2008.
The facsimile transmission cover sheet records receipt from Cook
Morris Quinn by Mr Laurent's office at 11.23 a.m. on 28 October
2008.
[24] Mr Kermode's affidavit attests to service by email on Ms B Perera on 30
October 2008 at 12.09 p.m. of:
a)
Minute of Randerson J dated 13 March 2008;
b) Statement of claim dated 3 June 2008;
c) Minute of Cooper
J dated 21 July 2008;
d) Amended statement of defence and counterclaim dated 31 July 2008;
e) Minute of
John Hansen J dated 29 October 2008.
[25] Exhibited to Mr Kermode's affidavit is a copy of the email to Ms Perera and
the above documents attached to it, together
with a return email from Ms Perera's
email address, berny_perera@yahoo.com, acknowledging that the email sent by Mr
Kermode on 30
October 2008 at 12.09 p.m. was read on 30 October 2008 at
12.11 p.m.
[26] Service of these documents was made pursuant to the
order of John Hansen J
made on 29 October 2008 for service by email in terms of Mr Morris's memorandum
of 28 October 2008.
[27]
Mr Kermode's email of 30 October 2008 also pointed out to Ms Perera that
Mr Perera had not complied with the order for discovery
previously made by the
Court, that compliance was required by 26 November 2008 and:
... from 26 November, we will be setting
the case down to prove the 1984
will as the last valid will of Mr Messer ...
The email advises Ms Perera to take legal advice
on the steps she needs to take in the
New Zealand proceedings. This advice echoed that in the minute of Randerson J of
13 March 2008
which recorded that it would be necessary to serve her with the
application for probate in solemn form and that she would be in
a position to indicate
her response to the application made and to engage solicitors and counsel as
appropriate. The minute then
states:
It would certainly be in her interests to do so.
[28] Ms Perera has filed no documents in the Court in response
to the proceedings
served upon. Mr Perera, the plaintiff, failed to comply with Court orders, which
resulted ultimately in the order
of John Hansen J on 17 December 2008 striking out
his statement of claim. No statement of defence to the defendant's counterclaim
was
filed.
[29] Nevertheless the Court advised both Ms Perera and the plaintiff of the
hearing date of Wednesday 13 May 2009
and receipt of that advice is confirmed by
subsequent emails sent by these persons. An email received by Mr Kermode from
Ms Perera
on 17 February 2009 caused him to reply on 2 March 2009 as follows:
Regarding the High Court in Auckland, at the last appearance,
the Judge
dismissed Mr Perera's application to prove the Sri Lanka will in solemn
form, because Mr Perera did not
comply with all the Court orders, in
particular, he did not comply with the discovery of all the documents in his
possession or control that related to Mr Messer's will. This means he has no
ability now to prove the validity of the
Sri Lanka will, and Mrs Messer is
now proceeding to prove the earlier will Mr Messer made in 1984 and which
gives
everything to Mrs Messer.
[30] Mr Perera advised by email to this Court on 7 May 2009, that he proposed to
hand over the matter
to Turner Hopkins: Estates, Trusts and Wills. He filed no
notice of change of solicitor although the Registry advised him by return
email of the
need to do so. Mr Mitchell of Turner Hopkins appeared on behalf of Mr Perera on
13 May 2009 to seek an adjournment,
having been instructed only the previous
evening. The adjournment was declined as referred to above.
[31] I am satisfied the
applicable procedural requirements have been met and, in
particular, that both the plaintiff Mr Perera and Ms Perera as a beneficiary
together
with Mrs Messer of the 2005 will, have been appropriately served with all relevant
proceedings. They have been kept
informed of developments in this matter
including the date and time of the fixture for the formal proof hearing on 13 May
2009.
[32] Ms Perera has taken no formal steps in the matter. Mr Perera has failed to
comply with Court orders resulting in the plaintiff's
claim being struck out on 17
December 2008. I am satisfied the defendant was entitled to proceed to formal proof
on the appointed
hearing date, 13 May 2009.
Factual background
[33] The deceased Paul Antony Messer and the defendant Jennifer Lynley Messer
were married in England on 18 May 1974. There were two children of the marriage
who are now adults. The marriage subsisted as at the date of Mr Messer's death, 21
May 2006.
[34] Mr Messer was a qualified civil engineer. At the time of his death he was
employed on a twelve month contract by Cardno
International Pty Limited as chief
resident engineer, road sector development project, Kurunegala, Sri Lanka. He
commenced that employment
on 20 June 2005.
[35] Following his arrival in Sri Lanka on 17 June 2005, Mr Messer moved into
company accommodation at Kurunegala.
In early to mid-July 2005 he held
interviews for a housemaid, as recorded in his diary.
[36] Mr Curnow deposes that
he performed well and behaved normally during the
first three months of his contract in Sri Lanka. However, in mid-October
Mr
Messer's behaviour became of concern to Mr Curnow.
[37] On 21 October 2005 an entry is recorded in Mr Messer's diary "Hector
called
re Bernadeth". On 22 October 2005 his diary records "met Bernadeth". On 29
October 2005 Mr Messer arrived at a weekend overnight
meeting of senior
management of his employer with Ms Perera. On 30 October 2005 his diary note
records "Berny moved into house".
[38] On 2 December 2005 Mr Messer purchased a residential dwelling Tulip
House, and furnishings and appliances. The property was
bought in the name of Ms
Perera. His New Zealand bank overdraft was increased to cover the costs of and
incidental to this purchase.
[39] On 7 December 2005 the Sri Lankan will was executed according to the date
on that document.
[40] On 17 December 2005
Mr Messer attended a further senior company function
accompanied by Ms Perera.
[41] In late December 2005 the Messer family,
Mrs Messer and the two daughters,
travelled to Phuket Thailand to attend a family gathering and friends' wedding. Mr
Messer was to
meet them there. When Mr Messer arrived he was accompanied by
Ms Perera who he introduced to his family as his "housekeeper and golf
caddy".
Mrs Messer deposes that at this time Mr Messer's behaviour as observed by her,
clearly indicated that he was in a manic phase
of his illness.
[42] On 17 February 2006 a housewarming party was held at Tulip House. Mr
Curnow deposes that Mr Messer appeared
depressed, quiet and unexcited by the
prospect of his new residence.
[43] From 21 February 2006 to 29 March 2006 Mr Messer took
a period of
unexplained sick leave from his employment. On 17 March 2006 Mr Messer
admitted to Mr Curnow for the first time
that he suffered from the bi-polar clinical
condition. He admitted he stopped taking his medication for that condition some
time
ago, but said he had started taking his medication again.
[44] By April 2006 Mr Messer was back at work and according to Mr Curnow
appeared to be improving and coming out of his depressive phase. He refers to a
telephone conversation on 20 May 2006 when Mr Messer
appeared to be back to
"normal".
[45] On the evening of 20 May 2006 Mr Curnow received a telephone call from
Ms Perera advising
that she had found Mr Messer unconscious in the bathroom.
[46] On 21 May 2006 Mr Messer died.
[47] Following her husband's
death, Mrs Messer through her solicitors made
inquiry for any will that post-dated the 1984 will held by the solicitors. None was
located. Mrs Messer learned of the possible existence of the 2005 will through Mr
Graham Curnow, her husband's boss. Mr Curnow in
an affidavit sworn 14 April
2009, deposes that following receipt by him of advice that Mr Messer had died, he
went with his wife
straight to the coroner's office at the Kurunegala Hospital where
they arrived at about 8.30 a.m. They found Ms Perera there with
the coroner and
two Policemen who were examining a document on the table before them. Those
four persons had little English. Mr Curnow
was told by them that the document was
an unsigned will. Ms Perera took possession of the document. Later in the day Ms
Perera advised
him that the deceased had made a will only a week ago, which Mr
Curnow said was "at odds" with the subsequent production of the will dated 7
December 2005.
[48]
After inquiry, Mrs Messer's solicitors in Auckland advised her that on the
face of it the 2005 will appeared to be valid according
to Sri Lankan law and that it
also appeared to comply with the legal requirements in New Zealand.
[49] Mrs Messer states in her
affidavit sworn 16 April 2009, that her husband was
first diagnosed with bi-polar effective disorder over 25 years ago and experienced
many episodes of "highs" and "lows" throughout their married life. Typical
behaviour included periods of severe
depression followed by periods of mania
during which the deceased would stop taking his medication. This usually led back
to depression.
She said the behaviour was cyclical and that her husband's condition
was usually managed by prescribed medications and psychotherapy.
Her affidavit
details the progress and effects of this illness over their 32 years of marriage.
Defendant's submissions
[50]
In helpful submissions both in the form of a written memorandum dated 22
April 2009 and oral submissions at the hearing on 13 May
2009, Mr Hayes referred
to the leading case in this area of Bishop v O'Dea (1999) 18 FRNZ 492 (CA). The
Court of Appeal set out the relevant legal principles:
1. In probate proceedings those propounding the will
do not have to
establish that the maker of the will had testamentary capacity, unless
there is some
evidence raising lack of capacity as a tenable issue. In
the absence of such evidence, the maker of a will apparently
rational
on its face, will be presumed to have testamentary capacity: Re White
[1951] NZLR 393 (CA) and Peters v Morris (CA 99/85, 19 May
1987).
2. If there is evidence which raises lack of capacity
as a tenable issue,
the onus of satisfying the Court that the maker of the will did have
testamentary
capacity rests on those who seek probate of the will:
Public Trustee v Bick [1973] 1 NZLR 301 and Peters v Morris
(supra).
3. That onus must be discharged on the balance of probabilities: Watkins
v Public Trustee [1960] NZLR 326 (CA). Whether the onus has been
discharged will depend, amongst other things, upon its strength of the
evidence suggesting lack of capacity.
4. In order to establish capacity, when in issue, 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
("the nature of the acts and its effects");
(b) The extent of the property being disposed of;
(c) The moral claims to which he or she
ought to give effect when
making the testamentary dispositions.
Those three matters derive
from the leading authority of Banks v
Goodfellow (1870) LR 5 QB 549 as cited by this Court in Ranby v
Hooker (CA 172/96, 16 September 1997) and in Peters v Morris
(supra).
5. If incapacity before the making of the will has been established, those
seeking probate must show
the will was made after recovery or during
a lucid interval. In such a case the will is regarded with particular
distrust and there is, in the first instance, a strong presumption against
it, particularly if it
displays lack of moral responsibility in the nature
of the dispositions: 4 Halsbury's Laws of England, Vol 17 at
para
904.
[51] In this case, lack of capacity of the maker of the 2005 will is clearly a tenable
issue. Accordingly
the onus of satisfying the Court that Mr Messer did have
testamentary capacity rested, in accordance with the second principle, on
the
plaintiff, Mr Perera, who sought probate of the will. However, in this case Mr Perera
has not pursued his application and his
claim has been struck out. I consider the
reality of the situation, therefore, is that the onus of establishing lack of capacity
in
relation to the 2005 will rests with the defendant Mrs Messer. She seeks probate of
the 1984 will in reliance on the contention
that the 2005 will, which purports to
revoke all former wills, is invalid because the maker of the will, Mr Messer, lacked
testamentary
capacity.
[52] A not dissimilar situation arose in the case of Pyle v Pyle HC WHA M113/94
29 July 2002, O'Regan J, where there
was an application for recall of probate
granted of a 1992 will, a declaration that the 1992 will was invalid for lack of
testamentary
capacity and an order granting probate of a 1954 will. O'Regan J noted
that if the application succeeded, the effect would be to
revive the deceased's earlier
1954 will. He observed that lack of capacity being clearly a tenable issue in the case,
the onus of
satisfying the Court that the deceased had testamentary capacity fell on
the beneficiary of the 1992 will. However, that was the
Crown who simply abided
the decision of the Court. That being the case the approach outlined in Bishop v
O'Dea could not be applied
and the reality was that the plaintiff needed to assume
the burden of establishing lack of capacity on the balance of probabilities
(at [24]).
[53] In Pyle the Court was satisfied that in terms of the three criteria outlined in
Bishop v O'Dea, the evidence
established the deceased knew he was making a will
and the effect of doing so. There was no evidence as to whether the deceased knew
the extent of the property being disposed of, so the case turned on whether the
deceased had sufficient understanding of the moral
claims to which he or she ought
to give effect when making testamentary dispositions. The Court found that the
deceased lacked such
sufficient understanding because of his delusional beliefs about
his family which were a symptom of the paranoia from which he was
suffering at the
relevant time. Accordingly probate of the 1992 will was recalled and a grant made
in solemn form of the 1954 will.
[54] Counsel also referred to Weston v Weston HC WN CIV 2006-485-1608 16
May 2007, Mackenzie J, where the parties relying on
an earlier will, applied to have
a later will declared invalid and sought an order for probate in solemn form of the
earlier will.
Applying the principles in Bishop v O'Dea, the Court was satisfied on
the balance of probabilities that the testator did not have
testamentary capacity at the
time of the execution of the later will, essentially under the first two criteria in
principle 4 of
Bishop v O'Dea. Accordingly the revocation in the later will of all
former wills was ineffective. There being no suggestion that
the earlier will was not
a valid testamentary disposition, it followed that probate of that will should be
granted.
[55] In this
case the defendant relies on the third of the criteria in principle 4 of
Bishop v O'Dea: that the deceased did not have sufficient understanding of the moral
claims to which he ought
to give effect when making the testamentary dispositions.
[56] In Banks v Goodfellow (1870) LR 5 QB 549 Cockburn CJ stated:
It is essential to the exercise of such a power that a testator shall understand
the nature of
the act and its effects; shall understand the extent of the
property of which he is disposing; shall be able to comprehend
and
appreciate the claims to which he ought to give effect; and, with a view to
the latter object, that no disorder
of the mind shall poison his affections,
pervert his sense of right, or prevent the exercise of his natural faculties
that no insane delusion shall influence his will in disposing of his property
and bring about a disposal of it which,
if the mind had been sound, would
not have been made. (emphasis added)
[57] Counsel submitted there are two bases upon
which the Court should grant the
relief claimed by the defendant. First that the 2005 will was not solemnly proved in
the proceedings;
the striking out of the plaintiff's claim does not operate to transfer
the plaintiff's evidential burden to the defendant; such burden
remains with the
plaintiff and has not been discharged.
[58] Secondly, accepting the "reality" that the defendant needs to assume
the
burden of establishing lack of capacity of the deceased in relation to the 2005 will,
the burden has been discharged on the balance
of probabilities.
2005 will not solemnly proved
[59] It is submitted:
a) The plaintiff having sought probate
of the 2005 will, carries the onus
to prove the will.
b) Lack of capacity has clearly been raised as
a tenable issue. This is
referred to in the early minute of Randerson J dated 13 March 2008
and in
the defendant's statement of defence to the statement of claim
in which she denies that the 2005 will is the last
valid will of the
deceased and says that the will is invalid as the deceased lacked
necessary capacity
to make the will given his ailment of bi-polar
effective disorder. Further, by her counterclaim she seeks a grant
of
probate of the 1984 will in her favour as the named executrix.
c) The plaintiff is deemed to admit
all the defendant's allegations in the
counterclaim, having filed no defence to the counterclaim: r 5.48(3)
High Court Rules.
d) The plaintiff has failed to establish any of the requirements of
solemnly
proving the 2005 will and has failed to establish any of the
three limbs of O'Dea on the balance of probabilities
or otherwise.
e) The plaintiff's attempt to propound the 2005 will was struck out by
order of this Court
on 17 December 2008 and has accordingly failed.
f) Accordingly the 2005 will is a nullity.
g) There is
no suggestion that the 1984 will is not a valid testamentary
disposition as the last remaining and valid will of the
deceased.
h) The Court is therefore free to make the orders sought. The affidavit
of Mrs Messer sworn
16 April 2009, deposes to the required matters
for a grant of probate of the 1984 will.
The "reality" of the proceedings
[60] On the basis that the defendant needs to assume the burden of establishing on
the balance of probabilities, the deceased's
lack of capacity in relation to the 2005
will, the defendant relies on the evidence in the affidavits of:
a) Dr Bede
Terrence McIvor sworn 7 April 2009;
b) Mrs Messer sworn 16 April 2005;
c) Mr Curnow sworn 14 April 2009.
[61] The defendant in her counterclaim pleads that the deceased lacked sufficient
understanding to fully appreciate the moral
claims to which he ought to give effect
when making his will due to the effects of his longstanding bi-polar mental disorder
and
that he failed in making his will to understand the moral claims upon his estate
to which he ought to have given effect (third criteria in principle 4 of O'Dea).
The medical evidence
[62] The uncontested medical evidence is provided by Dr B T McIvor. In his
comprehensive affidavit sworn 7 April 2009 he refers
to his review of the case file of
the deceased and surrounding documentation and statements in relation to the
deceased, as the basis
for giving his opinion as to whether the deceased had
testamentary capacity around the time the 2005 will was executed on 7 December
2005.
[63] Dr McIvor reviews background information concerning the deceased, his
history as provided by Mrs Messer, the history
of his mental disorder according to
Waitemata District Health Board notes and other evidence relating to Mr Messer's
mental disorder.
He then describes bi-polar disorder and its key features.
[64] In traversing the history of the deceased's mental disorder according
to
Waitemata District Health Board notes, Dr McIvor goes back to an initial assessment
on 8 October 1990 for significant depression
which records a known diagnosis of bi-
polar effective disorder since 1987. The affidavit details subsequent contacts in
January
1994 and March 1995 and notes a formal discharge in June 1995 when Mr
Messer was travelling to northern Sumatra for two or more years.
Then Mr Messer
was again seen in November 1997 and December 1997, followed by a slow recovery
from his depression by approximately
August 1998 with ongoing suicidal thoughts.
There was contact in December 1998 when Mr Messer appeared to be on a high. In
January
2001 the notes record that Mr Messer had a job overseas as an engineer in
Pago Pago and was receiving mood stabilising medicine.
Then on 1 May 2002 he
presented with depression which was resolved by October 2002. There was further
contact with Mr Messer in August
2003 and again in January 2004 when he was
referred by his general practitioner for review of his "longstanding depression".
[65]
After reviewing all the evidence Dr McIvor reaches the following
conclusions:
a) In my opinion Mr Messser clearly
had suffered from bi-polar disorder
for several decades.
b) Notes from the mental health services indicate that
his degree of
disorder was significant enough that he required professional
psychiatric assistance through public hospital
services.
c) During manic episodes Mr Paul Messer would not take medicine,
appeared euphoric and probably became less inhibited
in his
judgments and decisions.
d) He had formed extramarital relationships whilst elevated in mood.
e) During depressive
episodes he would be anxious, withdrawn and at
times express suicidal ideation. Mr Messer required mood stablising
medicines
to remain well.
f) It is clear that Mr Messer suffered from Bi-Polar Disorder throughout
his life. His medical file is clear
in this regard.
g) I cannot comment with confidence whether Mr Messer on 7
December 2005 understood what a Will was nor
whether he
understood the extent and value of his estate.
h) It is almost certain that Mr Messer was not fully compliant
with his
mood stabilising medicines.
i) It is my opinion that on balance it is more probable that Mr Messer
was in
a manic phase of his bi-polar disorder around the time that he
wrote his will of 7 December 2005.
j) The evidence also would
suggest that it is probable that after this date
he had a subsequent depressive swing.
k) It is also my opinion that on
the date that Mr Messer wrote his will on
7 December 2005 that due to the effects of his elevated mood state he
would have
been impaired in his judgment concerning the distribution
of his estate.
l) This impairment was probably such that
he could not correctly weigh
the moral claims that individuals would have to his estate.
m) When I use
the word "probable" I mean it was, in terms of
percentages, 80% likely that he could not correctly weigh the moral
claims that
individuals would have to his estate.
[66] The information considered and analysed by Dr McIvor on which he based
his opinion
is consistent with the evidence of Mrs Messer and Mr Curnow to which I
have referred in part, under the heading of factual background.
The evidence
establishes the following.
[67] Clearly Mr Messer has a long documented history of mental incapacity since
his late teens, flowing from his bi-polar disorder.
[68] His mental illness was characterised by intense high periods, during
which he
displayed a severe lack of judgment as to and departure from financial, emotional
and social norms of behaviour and failed
to recognise at the time, the consequences
of those departures. Bi-polar episodes would result from his ceasing to take the
medication
that controlled his illness. He would do this at times when he was on a
high.
[69] Mr Messer worked for the majority of his
life to provide for his wife and
daughters. He was supported by his wife through 32 years of marriage and the
raising of a family
and through the frequent highs and lows experienced because of
his mental illness.
[70] New opportunities of employment, particularly
overseas, would produce an
elevated mood often followed by periods of depression, particularly when he was
without the support of
his family.
[71] The periods of manic traits involved Mr Messer experiencing a sense of
inflated self esteem and an excessive
involvement in pleasurable activities. They
frequently involved excessive expenditure and engagement in extramarital affairs,
which
he subsequently regretted.
[72] Mr Messer arrived in Sri Lanka in mid-June 2005 for a one year contract. He
interviewed local
Sri Lankan women to fulfil the role of housemaid at his residence
from mid-July 2005. He engaged a housemaid towards the end of October
2005.
She was Ms Perera, who moved into his residence on 29 October 2005.
[73] At about this time, Mr Curnow became concerned
about Mr Messer's
behaviour. He attended a function of his employer at the end of October
accompanied by Ms Perera, without any
prior warning.
[74] Only 38 days after Ms Perera moves into his residence, he purportedly
executed the 2005 will, on 7 December
2005, which divided his estate between his
wife and Ms Perera whom he had only recently met and who at that stage was his
live-in
housekeeper. The effect of the will was to deprive his family, namely his
wife and his two daughters, of half his estate.
[75]
In late December 2005 he attended the wedding of a family friend with his
wife and daughters and again without warning, was accompanied
by Ms Perera
whom he introduced as his maid and golf caddy. Mrs Messer described his
behaviour during that family holiday
as being "as high as a kite, typical of one of his
manic episodes". In response to requests from his family to go back to his
medication, he stated that Buddhism had cured him of his mental illness.
[76] By February/March he entered the depressive cycle
of his mental illness. He
was off work for some one and a half months without explanation to his employer.
He belatedly admitted
to Mr Curnow that he had been off his medication and that he
had not told his employer about his mental disorder.
[77] Mr Messer
appeared to be emerging from the depressive stage in the period
immediately prior to his death on 21 May 2006, the cause of which
is recorded in the
death certificate as a heart attack.
Conclusions
[78] In terms of the three criteria set forth in principle
4 of Bishop v O'Dea, I am
satisfied that Mr Messer knew he was making a will when he signed the document
dated 7 December 2005, and
that on the balance of probabilities he knew the effect
of his doing so. I am also satisfied that he also knew the extent of the
property being
disposed of because of the list of assets in the schedule to the will. The list includes
most of his known assets but does not include the residential property
known as
Tulip House which was purchased in the name of Ms Perera (it appears that foreign
ownership carried significant taxation
implications), nor the contents of that
property. It does not include the few minor assets which the temporary
administrators
have subsequently distributed to Mrs Messer pursuant to Court order,
but it is a fairly comprehensive list of the property over which
he had the power of
disposition at the time.
[79] However, I accept that the evidence adduced by the defendant has established
the deceased did not have sufficient understanding of the moral claims to which he
ought to give effect when making his will. The
lack of sufficient understanding in
this respect arose from his bi-polar disorder around the time of the making of the will
on 7
December 2005, and the effects of the elevated mood he was in, which impaired
his judgment and his ability to properly weigh the
moral claims that individuals
would have to his estate.
[80] I am therefore satisfied on the balance of probabilities that the
evidence
adduced by the defendant establishes lack of testamentary capacity at the time Mr
Messer made the 2005 will.
[81] It
follows from this conclusion that the purported revocation in the 2005 will
of all former wills is ineffective. The 1984 will therefore
stands as the last will and
testament of the deceased and it follows that probate of that will should be granted
on the application
of the executrix Mrs Messer.
[82] I reach that outcome on the basis of an assumed burden of proof on the
balance of probabilities,
by the defendant Mrs Messer to establish the invalidity of
the 2005 will. I am satisfied that burden has been discharged. It is
unnecessary,
therefore, to rely on the first ground advanced by the defendant namely the plaintiff's
failure to solemnly prove the
2005 will, though that much is clearly established as a
matter of fact.
Orders
[83] There will be orders as follows:
a) A declaration that the will dated 7 December 2005 is not proved in
solemn form.
b)
A declaration that the will dated 7 December 2005 is invalid due to
the mental incapacity of the maker of the
will at that time.
c) A grant of probate of the will dated 17 February 1984 in favour of the
defendant
as the executrix named in that will.
d) The temporary administrators of the estate of Mr Messer, Mr Laurent
and Mr Kermode, are discharged.
e) The amount of approximately NZ$6,500 plus any accrued interest
held at the Kurunegala District Court in relation to the deceased's
estate is to be released
to the defendant, Mrs Messer.
f) The defendant's costs of and incidental to this proceeding are to be
paid from the estate of Mr Messer.
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