Prasad [2012] NZHC 1489 (28 June 2012)

Last Updated: 11 July 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2008-485-2177 [2012] NZHC 1489

IN THE MATTER of the ESTATE OF SUMINATRA PRASAD also known as SUMINTRA SAHAY PRASAD

Hearing: 18-20 June 2012

Counsel: K Lakshman for the Executrix

J M McMillan for the Caveator

Judgment: 28 June 2012

_{JUDGMENT OF MALLON J}

Contents

Introduction ....................................................................................................................................... [1] The issues ....................................................................................................................................... [1] Sumintra’s family and the beneficiaries under the will................................................................... [3] Earlier will ..................................................................................................................................... [5] The estate........................................................................................................................................ [6] The evidence ...................................................................................................................................... [7] Family background......................................................................................................................... [7] Sumintra’s will of 20 March 2007................................................................................................. [22] Admission to Mary Potter Hospice: instructions for will ............................................................. [31] Dharam’s funeral.......................................................................................................................... [41] Admission to Russell Kemp: execution of will .............................................................................. [52] Powers of attorney........................................................................................................................ [71] Sumintra’s last weeks.................................................................................................................... [90] Sumintra’s funeral ........................................................................................................................ [96] Testamentary capacity .................................................................................................................... [97] The law ......................................................................................................................................... [97] Evidence raising a tenable issue of incapacity? ........................................................................... [98] Has executrix established testamentary capacity on the balance of probabilities? ................... [100] Knowledge and approval of will................................................................................................... [126] Undue influence ............................................................................................................................. [128]
_{Conclusion...................................................................................................................................... [131]}

ESTATE OF SUMINATRA PRASAD HC WN CIV 2008-485-2177 [28 June 2012]

Introduction

The issues

[1] Sumintra Prasad died on 26 September 2008 aged 68 years. She made her will when she was terminally ill in hospital and less than two weeks after the death of her husband, Dharam Sahay Prasad, with whom she had lived for over 50 years. She was survived by four sons and a number of grandchildren. Under her will, she gifted her estate to one of her daughters-in-law and two of her granddaughters (one of whom she had formally adopted). One of her sons challenges her will.

[2] The issues in this case are:

1. whether Sumintra had testamentary capacity when she executed the will;
   

b) whether she knew and approved the contents of her will; and

c) whether she was subject to undue influence when she made her will.

Sumintra’s family and the beneficiaries under the will

[3] Sumintra (also known as Suminatra) and Dharam had four biological sons, Narendra (also known as Sam or Naren) who lives in New Zealand, Navendra (also known as Navin) who lives in Canada, Nagendra (also known as Arun) who lives in the United States and Naveendra (also known as Peter) who lives in Australia. All four sons married and have children. Naren is the eldest son. He married Meena. Naren and Meena have three biological daughters (Varsha, Vandhana and Vashna) and one son (Vishant). Varsha and Vandhana were legally adopted by Sumintra and Dharam.

[4] Sumintra gave instructions for her will on 16 July 2008. At that time she was

in a hospice. Dharam died on 30 July 2008. Sumintra’s will was executed on

11 August 2008 by which time Sumintra had been transferred to a rest home and

hospital closer to her family. The beneficiaries under the will are Meena, Varsha and Vashna. Meena is also the executrix. The challenge to Sumintra’s testamentary capacity is made by Navin, the second eldest son of Sumintra and Dharam.1 This is

_{shown in the diagram below.}

_{Dharam Sahay Prasad}

_(Dharam) Suminatra Sahay Prasad

(Sumintra)

Narendra Sahay (Naren)

Meena Sahay Navendra m Sahay

(Navin)

Nagendra Sahay (Arun)

Naveendra Sahay (Peter)

Varsha Sahay Vandhana Sahay Vashna Sahay

Key:

Vishant Sahay

= Beneficiaries

= Trustee and executrix

= Adopted children of
Dharam and Sumintra

= Caveator

Earlier will

[5] If Sumintra’s 11 August 2008 will is not valid, then probate would be sought in respect of her earlier will dated 20 March 2007. Under that will the beneficiaries are Varsha and Vashna. Naren, Varsha and Vashna are the executors and trustees. Therefore the only likely consequence of a finding that Sumintra lacked testamentary

_{capacity is to exclude Meena from the estate both as executrix and as a beneficiary.}

1. The challenge was made via a caveat lodged by Navin on 2 October 2008. Meena, as executrix, applied without notice for probate in respect of the 11 August 2008 will. She then applied without notice for an Order Nisi for probate where a caveat is filed. Navin responded with an affidavit setting out why the Order Nisi should not be made absolute. The High Court directed that the matter was now being treated as an application for probate in solemn form.

If she is excluded, her two daughters, Varsha and Vashna, would each receive a correspondingly greater share of the estate.

The estate

[6] The principal asset of the estate is Sumintra’s house at Titahi Bay. That property has a current rating valuation of $270,000. As at 14 June 2012 the amount owing under the mortgage was $40,550. The house is currently being rented. Mortgage repayments of $225 a fortnight are being met from rent. The evidence as to the expenses of the estate are unclear but as at April last year were said to be in

excess of $50,000.2

The evidence

Family background

[7] Sumintra and Dharam are Fijian Indian and lived in Fiji for a number of years. In about 1988, Sumintra and Dharam went to live in Canada with Navin and his family. Varsha and Vandhana went to live in Canada with them. Navin said that this was because Naren and Meena went to New Zealand for Naren to receive medical assistance and Varsha and Vandhana had remained in Sumintra and Dharam’s care at that stage. To enable Varsha and Vandhana to live in Canada, they were legally adopted by Sumintra and Dharam. Meena’s evidence was that, because Sumintra and Dharam had no daughters, she agreed to let them raise Varsha and Vandhana to fulfil their wish to have daughters. The cost of raising Varsha and Vandhana was met by Sumintra and Dharam and/or Navin’s family. Dharam, who was an accountant, was working at this time.

[8] The evidence about when and for how long Vashna was in Canada is less clear. Navin’s evidence was that Meena came to live in Canada for awhile. At that

2. Meena says that, as at April 2010 when she swore her affidavit, the expenses of the estate totalled $52,739.97. However these costs include Dharam’s funeral costs when the evidence from Meena at the trial was that these costs had been met from the BNZ funds withdrawn from Dharam’s account after his death. Meena has not provided updated figures of the expenses of the estate for the purposes of the hearing.

time Vashna was born and Sumintra and Dharam cared for Vashna for a period as well. Because she was born there she had a Canadian passport. Navin said that this meant there was no reason for Sumintra and Dharam to adopt Vashna. Meena said she did not go to Canada when her daughters were living with Sumintra and Dharam but I understand her to accept that Vashna did live in Canada for a while.

[9] When Sumintra and Dharam were living in Canada, they purchased a house there. Meena said that she sent about NZD 7500 to Sumintra and Dharam which she thought was used by Sumintra and Dharam to assist with buying a house. Navin says that the house was in Sumintra and Dharam’s names but he supplied the money to pay for it.

[10] In about 1996 Sumintra and Dharam and the daughters moved back to New Zealand. By this stage Sumintra and Dharam were in their late 50s. On their return to New Zealand, Sumintra and Dharam initially lived with Naren and Meena and their children at their house in Titahi Bay. By this time, Naren and Meena had a fourth child, Vishant. About two or three years after their return to New Zealand, Sumintra and Dharam purchased their own house in Titahi Bay. It is this house that comprises the principal asset of the estate. Navin said that the house was purchased because Naren kicked them out of their house.

[11] On leaving Canada, Sumintra and Dharam had left Navin to sell their house on their behalf. According to Navin, the bank foreclosed on the house and there were no proceeds from the mortgagee sale to pay to his parents. He said that Sumintra and Dharam had taken out a second mortgage of $29,000 to come to New Zealand. He said that he had to pay about $50,000 (to the Bank) because he had “co-signed” for his father. He said that there were hardly any chattels in the house because Sumintra and Dharam sold them before they left Canada.

[12] Other witnesses had a different understanding. Meena and Naren,3

understood that Sumintra and Dharam were upset with Navin because they never received anything from the house sale, not even money from the sale of their

3. Naren was not available for cross examination. The Court was provided with a medical certificate explaining his unavailability. As a result of Naren’s unavailability, Navin objects to his evidence. See judgment at [121].

personal effects (e.g. pots) which they had left in the house for Navin to sell, other than a sum of about $2000 which they received in February 2008.

[13] Navin was aware that Naren and Meena had a different understanding of what had occurred with the house, as this was set out in their affidavit evidence. However the only independent support he provided for his account were three print- outs of the real estate listing for the property in Canada. The first two are dated

10 April 1995 and 10 June 1996 respectively and show the owner as “Prasad, D & S”. The third is dated 10 June 2007 and shows the owner as “Laurentian Trust of Canada Inc”. Navin is noted as the listing representative only in respect of the second of these. Only the third one records that the property was sold (for $182,000 on 15 January 1997).

[14] Meena and Naren’s version of events was supported by a letter in Dharam’s

handwriting addressed to his lawyer dated 7 December 2001 which said:

I wish to inform you that Narendra and Meena has contributed the sum of

$4,500.00 towards to purchase our house at 7632-115th Street, Delta, Vancouver, Canada. That house was sold by Narendra, because I gave him a Power of Attorney to sell that property. And that sale money is not paid to us by Narendra yet.

I feel responsible for the sum contributed towards our house by Narendra/Meena and therefore I request to you to consider deducting $4500 from the total of $81,500.00 and handed over to us, so we can pay to Narendra and Meena and we will be free from that debts.

Yours truly

Dharam Prasad

Sumintra Prasad

[15] In cross-examination Navin disputed that this letter was ever sent and says that he never had a power of attorney. He said that the contents are not true and that Naren and Meena must have put Dharam under pressure to write this document. He supported this theory by noting that the date and addressee of the letter are in a different coloured pen than that in the body of the letter. Also, although Sumintra and Dharam’s names are written at the end of the letter (in Dharam’s handwriting), there are no signatures in the space where their signatures would go.

[16] Navin accepted that he became estranged from his parents. He said that this occurred as a result of a dispute with Naren over a family service station business. He said that he nevertheless remained in contact with his father and mother through regular telephone calls and when he came to New Zealand to visit them. In his affidavit, he said that he did not visit Sumintra and Dharam when they were living with Naren and Meena because they would not let him come to their house. According to Navin, Arun and Peter were also estranged from Sumintra and Dharam as a result of the dispute over the service station business.

[17] Navin did not supply any documentary evidence (e.g. telephone records) of calls made to his parents. There is some limited support for his evidence in the 2008 daily diary that Dharam kept. That diary recorded things like what Dharam had eaten and drunk, what the weather was like, how much money he had and who had visited him. A diary entry made on 10 February 2008 said “Rajesh came from Canada and gave me $2000”. (It is accepted that Rajesh refers to Navin.) That is, however, the only entry in the 2008 diary, in which Dharam made entries up to the day he died.

[18] There is also some support for Navin’s evidence that he was not allowed to visit his parents, from Sashi Collins. She had grown up in Fiji in the same village as Sumintra and Dharam when they lived there. Sumintra was her Aunt. Sashi moved to New Zealand when she married her second husband, by which time Sumintra and Dharam were back from Canada and living in New Zealand. She had not seen Sumintra and Dharam at their house for about five or six years before they died. Sashi said that this was because Naren and Meena had told her to “stay away” and she did not want to cause trouble. She was aware that there was a dispute between the brothers over a business deal. She said that she kept in telephone contact with Sumintra and Dharam and would sometimes see Dharam at the market. She said that at some point Dharam stopped calling her, but she could not remember when that happened.

[19] Meena and Naren confirmed that there was a family dispute over a service station business. Naren said this was resolved in about 1997 when he and Meena borrowed money from the bank to pay back Naren. Meena said that she understood

the $81,500 referred to in Dharam’s letter (above) to be the money that they were paying Navin in respect of a family service station business. Meena confirmed that Navin knew he would not be welcome in their house, but said there was nothing to stop Navin from visiting Sumintra and Dharam when they were living at their own house. It was Meena’s evidence that Navin did not keep in contact with his mother or visit her even though he came to Wellington on several occasions in the 10 years before she died. Meena said that Arun and Peter were also not in contact with Sumintra and Dharam and that it was very upsetting for Sumintra that she did not have contact with their children (her grandchildren) as a result. However she did accept that Navin sometimes telephoned his father and that Arun also telephoned his parents. Meena did not know why Sashi Collins thought she could not visit Sumintra and Dharam. She said that she and Naren did not tell her to stay away. She said that Sashi could come to her house, as she did after Dharam’s funeral.

[20] After Sumintra and Dharam bought their own house they still spent time at Naren and Meena’s house. Navin said that Sumintra and Dharam were kept like “slaves” by Naren and Meena. By this Navin meant that Naren and Meena made them do all the cooking and housework for them. Meena said this was not the case. She said that Sumintra was a great cook and did cook a lot of meals for them. She said that Sumintra liked to do this for them. She said that she still missed Sumintra’s cooking. She said that Sumintra and Dharam did not do the housework for them. She said that she loved Sumintra like her own mother and looked after her when she became sick.

[21] Hemant Kumar, a long time family friend of Sumintra and Dharam, confirmed Meena’s evidence that Sumintra and Dharam were upset about the house money. He said that Sumintra had told him that she did not want Navin, Arun or Peter to come to her funeral and did not intend to include them in her will. Mr Kumar also said that Navin’s evidence that Sumintra and Dharam were kept like slaves was “a joke” (the implication being that this comment from Navin was ridiculous). He said they were “kept like parents should be kept. They were looked after ...”. Mr Subhash Muneshwar (referred to below) said that Sumintra cooked at Naren and Meena’s house and “we like her cooking quite a lot. She used to make

special roti for us”. He did not recall seeing Sumintra doing the cleaning or other household tasks.

Sumintra’s will of 20 March 2007

[22] On 20 March 2007 Sumintra signed a will. Mr Muneshwar gave evidence about how this will came about. Mr Muneshwar had known Sumintra for about seven years at this time. He played music with Naren at Naren and Meena’s house and spent a lot of time with Sumintra in the process. He said that he shared a close social relationship with the family as a result. Mr Muneshwar said that Sumintra asked him to prepare a will for her.

[23] Mr Muneshwar was not a lawyer. He had, however, prepared his own will and wills for his children. For his own will he had carried out research on the internet about what he needed to do. He then had his solicitor look at the will to sign it off. His solicitor made some modifications before doing so. Mr Muneshwar used his will as a precedent for Sumintra’s will. Mr Muneshwar said that Sumintra asked him to check the draft will with her so that if he had misunderstood anything, she would be able to correct it.

[24] Mr Muneshwar said that he remembered clearly, that when he took Sumintra’s instructions for the will, she wanted Varsha and Vashna to be the only two beneficiaries under her will. Mr Muneshwar said that Sumintra explained that she had brought up Varsha and Vashna like their mother for about seven years when they lived in Canada. Mr Muneshwar said that Sumintra felt an obligation to provide for them both out of “duty and love”. Mr Muneshwar said he asked Sumintra about her other children. He said that Sumintra told her that Vandhana was married and well settled in England and the other children were grown up and self-sufficient. He said that Sumintra thought that Varsha and Vashna needed all the help they could get to kick start their life.

[25] Mr Muneshwar said that he asked Sumintra who she wanted to be the executors. He said that Sumintra would like the two girls to be included but, because they were “studying and so on”, she wanted to include an adult. She said that she

thought Naren would be the right person because he was looking after the girls. He said that Sumintra did not tell him specifically what her estate comprised, just that she wanted it to be divided equally between the two girls.

[26] Mr Muneshwar prepared the will in accordance with these instructions. The will provided that Naren, Varsha and Vashna would be the executors and trustees. It provided that after payment of debts, expenses and duties, Sumintra’s estate was to go to Varsha and Vashna equally. It provided that if either Varsha or Vashna did not survive Sumintra, or died within 30 days of Sumintra’s death, Sumintra’s estate was to go to the surviving beneficiary in its entirety. The will referred to Varsha and Vashna as “my daughters” in one place and in another “my beloved granddaughters” but Mr Muneshwar knew that only one was legally adopted.

[27] Mr Muneshwar took the will he had prepared to Meena and Naren’s house. Although Sumintra had her own house at the time, she was often at Meena and Naren’s house. Mr Muneshwar recalls that he went there sometime around the middle of the morning. He recalled that Naren was present but that he did not take any part in the signing of the will. He said that he explained the will to Sumintra and emphasised that Varsha and Vashna would be the only two beneficiaries as she had wished. Mr Muneshwar said that he read out the will in English first. He said that Sumintra’s understanding of English was poor. He said that he also explained the will in Hindi so that she could understand the will and its implications. He said that Sumintra nodded throughout and was happy with what Mr Muneshwar had prepared.

[28] After this, Mr Muneshwar said that he asked Sumintra to sign the will. Mr Muneshwar said that she was able to write her full signature without difficulty. Mr Muneshwar witnessed her signature. Mr Swanson, a neighbour who was working at Naren’s house at the time, was the other witness. Mr Muneshwar said that at the time Sumintra signed the will he believed her to be of sound mind and body. He said that she was “very decisive, she was full of reasons why she wanted to do what she wanted to do, and she was very coherent”. He was not aware that she was physically unwell at this time and “had no reason to entertain the thought that she might be unwell”. He said that Sumintra was her “normal, usual and cheerful self with all her full mental faculties about her”.

[29] Mr Muneshwar’s view as to Sumintra’s mental capacity at this time is supported by Dr Gaus. She is a doctor with 30 years experience. Her practice is in Porirua. She was Sumintra’s general practitioner from November 2006 until 11 July

2008 (when Sumintra was transferred to the Mary Potter Hospice – see below). Dr Gaus had access to Sumintra’s medical file from her previous doctor when Sumintra transferred to Dr Gaus. Dr Gaus saw Sumintra on 17 April 2008 and in July 2008. Her nurse conducted home visits regularly. A locum saw Sumintra on

12 May 2008 and 10 June 2008.

[30] Dr Gaus’ said that Sumintra suffered predominantly from kidney, heart and liver problems. Dr Gaus’ evidence was that during the time that Sumintra was her patient there was no indication that she suffered from mental capacity or any related mental illness or disease. She said that given her contact with Sumintra, and her

30 years’ experience as a doctor, she believed she would have known if Sumintra had suffered from mental illness or incapacity. She said that there was no record of this in the historical medical file either. Dr Gaus was not required for cross- examination. Her evidence was therefore unchallenged.

Admission to Mary Potter Hospice: instructions for will

[31] Sumintra was transferred into Mary Potter Hospice on 11 July 2008. At this stage she was suffering from “end stage renal failure”, diabetes and liver cirrhosis. She was in the hospice for palliative care.

[32] Sanjay Kumar, Hemant Kumar and Karan (known as James) Singh went to visit Sumintra during their lunch break on 16 July 2008. Sanjay, Hemant and James worked for the same taxi company and were friends. Sanjay described himself as a close family relative and friend of Sumintra (Meena is Sanjay’s sister). He had known Sumintra from the 1970s, and lived in the same street as Sumintra for awhile and so saw Sumintra most days. Hemant was not a direct family relative, but was a close family friend and an elder in the Indian community. James knew Sumintra but he was not her relative or close friend.

[33] Sanjay recalled that the visit to Sumintra was not pre-planned. He said that normally when James, Hemant and he were working they would text each other about what they were doing. Sometimes they might arrange to go for a coffee. On this occasion he had decided to visit Sumintra, and the other two decided they would come too.

[34] Sanjay was concerned to ensure that Sumintra understood that she was having palliative care, that is, that this was her last place of resting. He said that Sumintra and Dharam knew they were living their last days, as Dharam had a liver/kidney disease because he was a heavy drinker. Sanjay said that he wanted to make sure that Sumintra had organised things if she was “not here”. He did not directly ask her if she wanted to make a will. He said this was a normal conversation and that Sumintra replied “I want you to do this”. He said that Hemant started taking notes. He said that Sumintra said that she wanted to give her assets to Varsha and Vashna. He said that Sumintra had said that Vandhana was married and already well provided for and did not need anything further.

[35] As to Dharam, Sanjay said that Sumintra had simply said “dad knows what to do”. Sanjay did not recall whether Sumintra mentioned her sons at this time, except that he recalled Sumintra saying that Naren did not want to get involved in the will because of his own health problems. Sanjay thought that this was when Sumintra said that she wanted Meena to be involved. Sanjay thought that Sumintra did not list out what all her assets were, but recalled that she mentioned her jewellery and the house.

[36] Sanjay said that he and Hemant asked James (who was a Justice of the Peace) if he could help with preparing a will. During this conversation, Sumintra did not say that she already had a will and so did not need another one. Sanjay said that all of the discussion was a normal conversation. He said that Sumintra would say things like, “have you eaten? There are grapes in that second drawer. You can have them”. And “can you turn on the TV” and that sort of normal thing. He said that this visit lasted half an hour, because Hemant, James and he all had work to get back to.

[37] Hemant’s evidence was broadly consistent with Sanjay’s evidence. He recalled being approached by Naren to sort out Sumintra’s will. He recalled that when he, Sanjay and James visited Sumintra, he asked Sumintra in Hindi what she wanted to do with her assets and that he told her that it was better for her to disperse them now while she could rather than have disputes later. He said that Sumintra said she had distributed most of her jewellery to the people she wanted to give it to, that whoever wanted her saris could take them, and if her neighbour wanted her sewing machine she could have that.

[38] Other than those things, Hemant said that Sumintra wanted her assets to be divided equally between Varsha and Vashna. In his affidavit he also referred to Meena. He said that Sumintra originally intended to leave her assets to Varsha, Vashna and Naren but that Naren had refused to be in her will. This was because Naren was seriously ill himself and did not think he would be around long enough. He said that Sumintra chose Meena to act as her executor in the place of Naren. When he was questioned in cross-examination about this, Hemant said: “We didn’t give her a second or third choice, we are not making any suggestions. She said, ‘If not Naren then Meena’.” In his oral evidence he thought that Meena was mentioned later (see below at [64]). Hemant said that someone asked her “What about dad?” and she said “Don’t worry about him, he knows”. He said that Sumintra was asking after Dharam (like whether he had eaten, had been to see the doctor etc).

[39] James’ evidence about the 16 July 2008 visit was also broadly consistent with this evidence. James thought that Sanjay had asked him some time earlier than the visit on 16 July 2008 to help the family with sorting out a will, but he confirmed that the visit on 16 July 2008 was a spur of the moment thing. In his affidavit James had said that Sumintra wanted to leave her assets to Varsha and Vandhana. He said that he had realised he had made a mistake about this when he saw the will sitting in the witness box. He said that he must have made the mistake because he was driving his taxi and speaking over the telephone to the lawyer. He recalled that all four of Meena and Naren’s children were mentioned but that Sumintra wanted her assets to go to the two girls, Varsha and Vashna. He said that Meena and Naren were also mentioned, but not Sumintra’s other sons or the other grandchildren. He said that they were just talking about her assets in general, and Sumintra was not talking about

any assets in particular. He said that Sumintra could understand Hindi very well and had “perfect mental ability”. He said that Hemant had taken notes and Hemant volunteered to get the paperwork sorted out. He said that he told Hemant to make sure that he had the proper legal names for the two girls.

[40] There is general evidence about Sumintra’s mental capacity at this time from Rosaline Sharma. Rosaline was Sumintra and Dharam’s niece. She visited Sumintra twice when she was in the Mary Potter Hospice for about an hour on each visit. She could not recall the exact dates of the visits. She is a registered nurse, and at that time had about two years’ experience working as a geriatric nurse. She said that when she visited she was able to have a normal conversation with Sumintra. She said that Sumintra would not speak in an energetic tone because she was low on energy. She said that Sumintra was lucid and able to understand and respond to her fluently in Hindi. She said Sumintra would look at her and smile back at her. She

said that if she held Sumintra’s hand, Sumintra would squeeze her hand back.4

Dharam’s funeral

[41] On 30 July 2008 Dharam passed away. His funeral took place on 2 August

2008. Hemant was in charge of the funeral arrangements. He heard that Arun and Peter were in Wellington but had not turned up for the viewing. Navin says that Naren had security guards at the funeral and Naren had told Peter and Navin that they were not allowed at the funeral. In any event, Navin attended the funeral with his family from Canada. Peter, his wife and one of their daughters also attended. Hemant told them that, as Dharam was their father, they should come forward and they were welcome to speak if they wanted to. Navin and Peter and two of the grandchildren spoke at the funeral. Navin also said that he and Peter paid for the flowers that were on Dharam’s casket. Meena disputes that Navin paid for any flowers.

[42] There is conflicting evidence about how Sumintra was on that day. Navin said that he saw his mother in a wheelchair with a support person who he thought

4. Navin thought this somehow odd. I do not. It is consistent with a physically unwell person responding to the comfort of a visit from someone close to her.

was a nurse aide. He said that he approached his mother but she did not appear to recognise him. He said that she seemed “extremely unwell and virtually comatose”. He said that she was “cold”, “stiff”, “would just stare” and had no tears in her eyes.

[43] Dr Rodrigo, the doctor at Russell Kemp (see below) was asked by the Court whether this description was consistent with the effects of the medicine Sumintra was on. She said it could be, but it was also a description that was consistent with grief and it really was crystal ball gazing. She also said that if Sumintra was cold, the most likely reason for that was that it was the middle of winter. She also said that her diabetes could have also meant some peripheral vernacular disease which could cause coldness in the hands and feet.

[44] Navin’s evidence was supported by Sashi Collins. It was only when Dharam had died that she learned that Sumintra was in a hospice. She was upset that no-one had told her this. She said that Sumintra did not look very well at the funeral. She said that Sumintra did not look as though she recognised any of them. She said that she went to talk to Sumintra but Sumintra did not respond. She said that she saw Navin try to talk with his mother but Sumintra made no response to him. She said she saw many other people trying to talk to Sumintra but Sumintra was making no response to them.

[45] Navin and Sashi’s evidence was supported by Sashi’s husband, Peter Collins.5 He said that he went up to speak to Sumintra but Sumintra just sat in silence pressing one finger on the palm of her hand repeatedly. He said that Sumintra did not acknowledge him. He said that Sumintra looked vacant, like his own mother who has Alzheimer’s.6 He said that a lot of people, including Navin, tried to speak with Sumintra but she did not respond. He said that from what he saw, he did not believe that Sumintra would have been capable of making a will on

_{11 August 2008.}

5 Peter Collins was not available for cross-examination. The Court was told that the reason for this was that he was in Fiji. Counsel for Meena submits that this is relevant to the weight that should be given to his evidence. See judgment at [121].

6 There is no evidence that Sumintra had Alzheimer’s and no evidence that Peter Collins was

qualified to make such a comparison.

[46] Meena said that Sumintra was very upset when Dharam died. It was unexpected and Sumintra was very ill. Meena said that Sumintra did not have a nurse aide at the funeral. She said that she wheeled in Sumintra and was her support person. Meena said that Navin did not approach Sumintra at the funeral and that he and Peter chose to ignore her. She said that Sumintra recognised their children at the funeral. She said that Sumintra expected all her grandchildren to be there but of Arun’s children, only one granddaughter came. Meena said that Sumintra was so happy that she had come, that she gave her a gold chain. Meena said that Sumintra was like a normal person. Meena said that Sumintra recognised people and would have interacted with over 100 people over the three day burial rite.

[47] Naren’s affidavit evidence was that it was obvious to everyone at the funeral that Sumintra did not feel well. He said that Navin did not make an effort to comfort or talk to Sumintra at the funeral. He said that Sumintra would have had her own reasons for not engaging with Sashi Collins and Mr Collins at the funeral. He said that Sumintra knew what was going on around her. He said that she responded to people and performed several rituals at the right time, such as putting drops of water into Dharam’s mouth and laying flowers at his feet. Navin disputes this, saying that his mother was not able to get out of her wheelchair.

[48] Hemant said that Sumintra was seated by the coffin and all the family members walked past to pay their last respects to Dharam. He said that Navin and his family walked past the coffin without looking at Sumintra. He said that Navin ignored Sumintra for the entire funeral. He said that Navin wanted the funeral to take place in Fiji. He said that he asked Navin why he had not spoken to Sumintra and that Navin had replied that he was not here to speak to his mother.

[49] Rosaline attended the funeral. She was supporting Meena and standing with the family by the coffin for the service. She did not see Navin approach Sumintra at any time during the service. She said that Sumintra spoke to her and Rosaline cuddled her. She said that Sumintra was looking around at who had come to the funeral. She said that Sumintra had a lot of sadness.

[50] Sanjay said that after Dharam died, Sumintra was in grief. He said that she had hoped “dad” [Dharam] would stay until after she died, but when he died first it was “the end of the wall for her”. He agreed with a question in cross-examination that at the funeral she was unresponsive, blank and staring ahead and said she had lost her husband of over 50 years. He said she looked “very lost” and was staring at the coffin. He said that tears were running at times.

[51] James attended the funeral. He said that Sumintra was looking at people and what was happening, with sorrow. He saw her speaking with family or women who went to greet her, but eventually she was sitting alone. He did not recall Navin going to greet Sumintra but also said he would not have noticed all the people that greeted Sumintra.

Admission to Russell Kemp: execution of will

[52] On 4 August 2008 Sumintra was admitted to Russell Kemp rest home and hospital. As part of the admission process, she was seen that day by Dr Rodrigo. Dr Rodrigo saw Sumintra for about five to ten minutes on this occasion. Dr Rodrigo has over 20 years experience as a doctor, most of which has been in practice in the Porirua area. Through her practice in communicating with people of different ethnicities and where there are language barriers. Although Sumintra was physically weak and lacked energy, Dr Rodrigo considered Sumintra to be lucid and alert at that time. Dr Rodrigo said that she had no difficulty communicating with Sumintra to attend to her physical and medical needs, although Sumintra could not speak in English beyond basic “yes” or “no” commands.

[53] In cross-examination, Dr Rodrigo was asked about hospital notes for Sumintra that were signed by a registered nurse on 1 August 2008. These noted under “mental state”: “alert”, “memory loss”, “apathetic”, “lethargic” and “withdrawn at times”. Crossed out under this heading were “confused”, “agitated” and “other”. Dr Rodrigo was asked what was meant by “memory loss”. She said that this was probably a subjective comment from the nurse as no mental status test had been carried out on Sumintra.

[54] Dr Rodrigo said that Sumintra’s problems from renal failure and liver cirrhosis, if serious enough, could cause a patient to become confused and this confusion can be episodic or fluctuant. She said that there was no mention of confusion in the nursing notes in the period from her admission and the date she executed the will. She also said that if Sumintra had suffered episodic confusion in this period she would expect it to last long enough to be observed by the nursing staff and recorded in the notes. She said that she was not aware of any medical reason to cast doubt on Sumintra’s “medical” capacity. That appears to have been a typographical error in the affidavit. I understood that the gist of her evidence was that she was not aware of any issue with Sumintra’s “mental” capacity.

[55] Dr Rodrigo described the list of drugs prescribed for Sumintra at the time of her admission into Russell Kemp as “fairly potent” drugs “used in palliative care for patients to keep them comfortable”. She said that they can cause a patient’s mind to become “clouded” but that this was “variable” as well. She said it was possible that the effects of the drugs could mean that the patient would not be able to understand what was going on around her, but this was not the case with Sumintra when she saw her.

[56] About a week after Dharam’s death, Sanjay said that there was a discussion with Sumintra at the rest home that she needed to have a will because Dharam had died without one. Sanjay could not recall the length of this visit, but recalls that it was a decent meeting of something like an hour or two, and that it was in the evening. He also said it was easier to visit Sumintra when she was at Russell Kemp and that he and others went “back and forward” to visit her.

[57] Hemant recalled visiting Sumintra on a number of occasions after 16 July, sometimes twice a day, as his house was just down the road. Hemant said that after the funeral she was grieving and was initially in quite a bit of shock and worrying about things like who would cut the grass at the house and whether a leak had been fixed. He said that sometimes she would be sleeping and he would go away. Other times she would open her eyes and say “Oh you’re here Hemant, come sit down” and ask he if he wanted some tea or some fruit and they would have a bit of a conversation.

[58] In these visits, Hemant said that they discussed the will and in one of these visits Sumintra asked him if he had done the will yet and would she have something to sign. Hemant said that it was in one of these visits that Sumintra said that if you find anything (e.g. jewellery) then give it to the two girls. He said this was why he had a clause that Sumintra’s personal belongings were to go to them. Hemant said that Sumintra knew she was a joint owner of the property and that the benefit went into a bank account.

[59] Hemant had prepared the will by downloading a precedent from the internet. Hemant thought that he had printed off the will soon after the 16 July 2008 conversation, when Dharam was still alive. Hemant said in his oral evidence that after Dharam died he asked Sumintra if, now that she had the whole house, did she want it all to go to Varsha and Vashna. He said that Sumintra replied that “no” she wanted it to go to Naren, but that since he did not want it, she wanted it to go to Meena.

[60] On about 10 August 2008, Rosaline visited Sumintra with her husband and son. The visit was around tea time and Sumintra was sitting up in her bed, assisted by a nurse aide, and eating her soup. Rosaline said that Sumintra recognised her straight away and smiled at her. She also recognised her husband and son. Rosaline said that they had to lean near Sumintra to hear what she was saying because Sumintra did not have much energy left. Rosaline held Sumintra’s hand and found that it was cold. Rosaline massaged Sumintra’s hands, legs, feet and head for awhile. Sumintra enjoyed this and closed her eyes until the massage was finished. After awhile, Rosaline said “Aunty, I am leaving now”. Rosaline said that Sumintra replied “Achaa” which is Hindi for “ok”. Rosaline said that she believed that, although Sumintra was very tired, she was lucid, able to process information, aware of what Rosaline was doing, and still had her mental faculties.

[61] On 11 August 2008 Sanjay, Hemant, Meena, Naren and James visited Sumintra, arriving at about 7:00 pm, for the signing of the will. Under the will, Sumintra’s personal belongings, cash, jewellery, kitchenware and household items were to be shared equally with Varsha and Vashna. Sumintra’s “share” of the house was to be divided equally between Meena, Varsha and Vashna. The residue of

Sumintra’s estate was to be held by the trustees for the benefit “of my husband if he survives me by 30 days”. Otherwise the residue of the estate was to go to Meena, Varsha and Vashna.

[62] There was consistent evidence from all of those attending at the hospital as to how the will was explained and executed. James was given the task of explaining the will to Sumintra. James said that he read out each clause in English and then he would translate that clause in Hindi. He said that he explained the will in Hindi using common terms so that she could understand them. He said that he also questioned Sumintra in Hindi to check the will was what she intended. He said that he would wait for Sumintra to nod or speak to him, to ensure that Sumintra understood, before moving to the next clause. He said that he explained what the clause said about her husband, but she was “not much worried about it” as this only applied if he had survived Sumintra. He said she was “more putting attention to the names of Meena, and the two girls. He said that when he mentioned that the property was to be left to the two girls and Meena, Sumintra said “yes” in Hindi and nodded. He asked her if there was any other name that she wanted to enter on the will and Sumintra said “no” in Hindi.

[63] James confirmed that Sumintra had poor English speaking skills and that was why he translated it and explained it Hindi. When questioned in cross-examination about his own understanding of English, he said that he had been speaking it since he was 10 years old. He said that he had explained or translated English legal documents into Hindi for other people about 80 times. He said that before this time he had probably met Sumintra about 10 to 12 times. He said the visit took approximately one hour. He was asked in cross-examination how he explained words like “codicil” and “executrix” and other provisions of the will. He gave perfectly adequate responses to these questions.

[64] Sanjay and Hemant confirmed that this is what had occurred. Sanjay and Hemant said that they understood Hindi also, so could understand what James was saying to Sumintra. Their evidence was that Sumintra was nodding in agreement as the will was read and explained to her. Hemant said that James explained that Meena was the executrix, as Sumintra had wanted in the place of Naren, and she

would make sure that Sumintra’s will was done. Hemant said that Sumintra replied that she knew and understood that and was looking at Meena when she said this. Hemant said that James explained to Sumintra that the reference to her husband could stay in, even though he was dead, because the clause said “if” he was still alive.

[65] Meena says that she did not speak to anyone about what was in the will before this meeting on 11 August 2008. She said that she agreed to be in the will at the meeting. This was at a time that Meena was having to cope with her own husband’s ill-health (discussed further below). She confirmed that Naren did not want to be in the will because of his past experience with his family and because he was unwell. Meena said that Sumintra also thought Naren should not be in her will, because Sumintra thought that Naren would “not make it” [i.e. live]. She said that Sumintra chose Meena as Meena was “the strong one”. Meena said that James explained the will thoroughly to Sumintra in Hindi, and that Sumintra was lucid and acknowledged that she understood James’ explanations. Naren’s affidavit also confirmed this.

[66] After the will had been explained and Sumintra had confirmed her agreement to its contents, Sumintra signed the will with her thumb print. Hemant said that James offered a pen to Sumintra, but that she was not steady or strong enough to hold on to the pen. James said that she could hold the pen but was not powerful enough to write her name. Similarly, Meena said that she could hold the pen but it would have taken her a long time to sign something legibly. Hemant suggested that Sumintra use her thumbprint. He said that when he was in Fiji a lot of legal documents were signed in this way when people could not write. Hemant said that when this was suggested, Sumintra held out her thumb.

[67] After Sumintra put on her thumb print, Sanjay and James witnessed the will. Above James’ signature he recorded “Explain to Sumintra Prasad in Hindi and she has understood the above contents of her will.” James had a stamp with his name and details which he applied under his signature. Sanjay wrote out his details under his signature. James said that after this, Sumintra was “quite relaxed”. He offered

her something from the fruit bowl and she wanted the grapes. James left, as he had completed his job, leaving the family to stay on with Sumintra.

[68] Hemant said that they all felt comfortable that Sumintra understood and agreed to what was in the will. He said that he did not believe that Sumintra was suffering from mental incapacity. He said that Sumintra knew who everyone was, could converse with them and offered them tea when the nurse came around with the tea trolley.

[69] Similarly, Sanjay said that Sumintra was “well and truly aware of everything going on around her”, like who was entering the room at any point in time. He thought the visit had lasted for about an hour or an hour and a half. Sanjay recalled that during the visit on 11 August 2008, Sumintra had said that she did not “feel too good”. He asked her if she had eaten and Sumintra replied that she had not because she did not feel too good.

[70] If Sanjay’s recollection about that was correct, Sumintra’s comment that she had not eaten was contradicted by the nursing notes for that day. They record that Sumintra had eaten all her breakfast and all her dinner that day. They otherwise do not assist with how Sumintra was that day except that no particular concerns have been recorded. Those notes were as follows:

11/8/08 Washed and changed. Supps given with small results. Visited by family. Ate all breakfast. Fluids intake satis (settled) up on w/chair for the day.

pm Wash given and changed for the night. B/O xlarge (toileted) by N/A Anne. N/A Va helped me put her into bed. Ate all her dinner. V/B family. In bed settled.

Powers of attorney

[71] On 14 August 2008 Meena contacted Mr Gee, a senior advisor employed by the Public Trust for over eight years. Meena asked Mr Gee if he could prepare two powers of attorney, one for Sumintra’s care and welfare and the other for Sumintra’s property. Meena said that she had needed to sign Sumintra’s admission papers because Dharam was no longer there. She said that before Dharam died, he would

ask Meena to see Sumintra and speak to the doctors for her. The power of attorney was just needed to formalise things.

[72] Mr Gee told Meena that he would need to take instructions from Sumintra. Mr Gee said that Meena told him that Sumintra was in bad health, her husband had died and she had given up on life. (Meena was asked about this in cross- examination and confirmed Sumintra was very sad and upset about Dharam’s death). Mr Gee therefore treated the matter as urgent. Mr Gee went to Russell Kemp in the afternoon. He found Sumintra to be groggy and very tired. The nurse tried to wake Sumintra up, but she would just fall back to sleep. The nursing notes do not refer to this visit or describe Sumintra as being lethargic that day but there is no reason to doubt Mr Gee’s evidence about this.

[73] Mr Gee left the hospital without speaking with Sumintra. That same afternoon he telephoned Meena. He asked Meena to speak with Sumintra’s doctor at the hospital to arrange “a letter of capacity”. Mr Gee said that the reason he did this was that he had to be sure that Sumintra had the mental capacity to enter into the powers of attorney. He said that in all cases of doubt, it was his normal practice to obtain a medical endorsement of capacity before proceeding. Mr Gee said he also made some initial inquiries from the nursing staff at the hospital. They told Mr Gee that Sumintra lacked energy and her health was deteriorating. They could advise Mr Gee as to whether Sumintra was tired but were of no assistance to him as to Sumintra’s mental condition and health.

[74] Dr Rodrigo commented that the Russell Kemp nursing notes indicate that Sumintra was increasingly tired and lethargic from 17 August 2008 onwards. In fact the references to sleepiness begin a day earlier, with this note:

16/8/08 Nursing Notes PM:

1810 Pt very sleepy this evening. Not eating and drinking – very difficult to arouse only managing 4-6 sips of H2O and Milo. Obs as follows: BSL = 9.4 mmol/L, BP 140/82, T = 37.1, Resp 18 P =

84 irregular. Pt is swallowing when fluids are given via syringe. Opened her eyes a couple of time /c great effort. Evening

medications not given as fear pt will aspirate as she seems very

tired. Pt v/b family this evening whom appeared greatly concerned – but her status at present does not reflect her physical

state earlier. Pt finished her main meal /c out difficulty and a spoonful of dessert, and earlier this pm she was talking to pm staff. Pt very lethargic obs satis BP ↑ but other obs /c in normal limits. Will redo obs at 1900 hrs.

[75] This note is probably when Sashi Collins visited Sumintra. Sashi said that she went to see Sumintra about two weeks after Dharam’s funeral, which she placed at somewhere between 9 and 16 August 2008. Sashi said that Sumintra did not seem to recognise her. Sashi said that she was saying “baby is here” about 20 times but Sumintra was making no response. This upset Sashi and she was crying. When she left she told the staff that Sumintra had not responded to her. She believed from what she saw at this time that Sumintra could not have been fully conscious and able to make a will on 11 August 2008.

[76] Sanjay agreed that sometimes when they visited Sumintra she would be asleep. If they found her like that, they would close the door and come back another time. He thought she was still in grief but that she would cheer up when she had visitors, especially if children came to see her.

[77] On 18 August 2008 Dr Rodrigo provided a letter to Mr Gee of the Public

Trust Office stating:

This is to confirm that Mrs Prasad can understand and has the capacity to communicate with her daughter in law Meena Prasad. Meena will be Mrs Prasad’s EPOA.

[78] Dr Rodrigo thought that the request to her came from a nurse. She said that she understood she was being asked to provide confirmation that Sumintra could communicate with Meena. She did not understand that she was being asked about Sumintra’s mental capacity. She believed that she provided the letter on the basis of what the nursing staff told her about Sumintra’s ability to communicate. She understood that Sumintra could communicate cogently in Hindi and that Meena was usually the interpreter for her in the communications with the nursing staff.

[79] Had Dr Rodrigo understood that Mr Gee was seeking confirmation of Sumintra’s mental capacity, she would have conducted a mental capacity test. She described that this would initially involve a questionnaire which the nurse would

take Sumintra through. For example, this would have asked Sumintra to remember three words after five minutes, to look at a picture and then draw it, to answer when the Second World War started and so on. It would take around 20 minutes to complete. What would happen after that would depend upon the answers to the questionnaire. No such test was carried out because of the misunderstanding as to what Mr Gee was seeking.

[80] For her part, Meena thought she asked the nurse in charge about getting the letter. She also thought it was the nurse that spoke to Dr Rodrigo. Meena thought Mr Gee was asking for confirmation that Sumintra could understand the signing of a power of attorney and that for this Sumintra needed to be able to communicate.

[81] Having received Dr Rodrigo’s letter of 18 August 2008, Mr Gee went to see Sumintra at Russell Kemp. This was some time in the morning. Mr Gee said that Sumintra had poor English skills, but did understand some basic English. Meena was present and translated what Mr Gee was saying into Hindi so that Sumintra could understand what he was saying. Mr Gee said that Sumintra was comfortable with Meena being there, had greeted her with a half smile, and they had held hands.

[82] Mr Gee said that he explained in basic English the nature of a power of attorney. Mr Gee said that it was not his practice to read out each power of attorney document verbatim. Instead he would explain the powers being granted and also explain that the powers can be general or restricted. Mr Gee said that he explained that Sumintra would be nominating someone to act for her on these matters. He asked Sumintra who she wished to have act for her. He said that Sumintra pointed to Meena. He said that he asked her if she had a house and Sumintra nodded. He said that he asked her if she had bank accounts and Sumintra nodded to that. He said that he would have asked Sumintra if she wanted Meena to look after just certain things or to look after everything. He said that Sumintra indicated that she wanted it to be everything. After the explanation Mr Gee said that he asked Sumintra to reaffirm that she wanted Meena to act for her, and Sumintra nodded.

[83] Mr Gee then went back to his office in Porirua and drew up two powers of attorney: one for care and welfare and one for property. The power of attorney for

the latter was “in relation to the whole of my [Sumintra] property”. It was expressed to take effect immediately and could not be revoked if Sumintra became mentally incapable. The power of attorney for personal care and welfare was to take effect “if I [Sumintra] become mentally incapable, in relation to my personal care and welfare generally”.

[84] At about 2:00 pm, after the documents were ready, Mr Gee went back to Russell Kemp. Meena had remained with Sumintra in the intervening time. Mr Gee said that Sumintra was in her bed, was still very tired and weak, but was awake and able to understand what was happening. Mr Gee said that he told Sumintra that he had the papers she had instructed him to prepare. He said that these papers would give Meena the following powers. He then gave an explanation of the powers in basic English. Mr Gee said that as he spoke, Meena was translating everything into Hindi. He said that he asked Sumintra if she consented to giving Meena these powers and that Sumintra nodded. He gave Sumintra a pen which she was able to hold. He helped Sumintra by putting the documents as close to her as possible, as she was very weak. He said that Sumintra then marked the documents rather than signing them. The documents record that it was “by reason of physical infirmity” that Sumintra had signed them with a “mark”.

[85] Meena’s evidence confirmed Mr Gee’s evidence. She said that Mr Gee explained the two powers of attorney in English and that she translated this into Hindi for Sumintra. She said that “in basic English”, Sumintra understood that she was giving Meena the authority for her property, to sign on her behalf anywhere that was required. She said that Sumintra knew this, and nodded and said “yes” she was giving Meena that authority. She said that Sumintra understood the documents and was happy to sign them.

[86] The nursing notes for 18 August 2008 refer to the letter that was sent to Mr Gee, but otherwise do not particularly assist as to Sumintra’s capacity on that day. They were as follows:

18.8.08 Letter written re EPOA and faxed to Public Trust Office at

Porirua.

Add Sup B/O M. Full, washed given change, stay in bed. All her clothes been marks and won’t do for laundering. Food given ok.

PM Washed and change. Found 1 broken area and blisters on her sacrum. Reported to RN and she put dressing on. Food and fluids intake medium. Aide nurse.

[87] On the same day as the powers of attorney were executed (18 August 2008), Meena completed a BNZ “Deceased Estates Claim Form” in Sumintra’s name. This stated that Sumintra was lawfully entitled to receive payment of money standing to the credit of Dharam as Dharam’s wife. It was signed by Meena as “declarant”. It was witnessed by Mr Gee. Meena did not make it clear on the document that she, rather than Sumintra, had signed the document and that she had done so pursuant to the power of attorney.

[88] Mr Gee was asked in cross-examination about his recollection of this document. He said that he would not have witnessed this document until Meena had collected the certified copies of the Power of Attorneys from back at the office. He also said that his stamp on this document, which said “An officer authorised to make a statutory declaration”, would have been back at the office. He therefore believed that this document must have been witnessed by him later in the day.

[89] As a result of this document Sumintra received into her bank account a sum of $4,371. Meena said she used this money to pay for Dharam’s funeral. It seems that Dharam may also have had a few thousand dollars more than this (up to about

$7,000) in cash and bonus bonds and that this also went into Sumintra’s bank

account and was used by Meena to pay for funeral or other costs.

Sumintra’s last weeks

[90] Dr Rodrigo saw Sumintra again on 20 August 2008. Again this was for about five to ten minutes. The doctor said that Sumintra was not well at this stage as she had a chest infection. Her memory is that she was also lethargic at this time. The doctor said that Sumintra was still able to communicate with her at this stage and say “yes” or “no”.

[91] Sashi Collins said that she went back to visit Sumintra about three weeks after her first visit and about two weeks before Sumintra died. That would make the visit in early September 2008. Sashi said that Sumintra was lying in bed like a skeleton. She said that Sumintra did not recognise her or respond to her.

[92] On 22 September 2008 Meena executed a “Transmission by Survivorship” statutory declaration which had been prepared by Mr Gee and was witnessed by him. In this document she declared that she was Sumintra’s attorney under an “Enduring Power of Attorney in relation to property”. Meena declared that she was “making this declaration as [Sumintra’s] attorney because she is mentally incapable”. The purpose of the declaration was to have the registration of the property which Sumintra and Dharam jointly owned, changed into Sumintra’s sole name, as the surviving owner.

[93] Mr Gee was not able to say whether there was any discussion with Meena about the terms of this statutory declaration and in particular whether Sumintra was “mentally incapable” at this time. In her affidavit evidence, Meena said that when she signed this declaration Sumintra was “slipping in and out of awareness and sleeping a lot due to heavy medication”. She said that she believed that Sumintra “did start slipping into a more comatose state at the end of her life and I could not be sure that she was as mentally aware anymore at this time, therefore, I relied upon the Power of Attorney for Care and Welfare”. In fact, the relevant power of attorney was the one for property, and it had effect regardless of whether Sumintra was mentally incapable.

[94] In cross-examination Meena gave a fuller description of how Sumintra was in her days. Like Rosaline, Meena is a registered nurse. Meena said that she understood “mentally capable” to mean being able to make decisions and to communicate her basic needs. She said that in the week before Sumintra died, they read her the holy book every day and Sumintra would listen. She said that after seven days, when they got to the end, Sumintra had tears. She said that Sumintra was aware of her surroundings and what was happening but was just too weak to speak and would not have been able to sign any papers. She said that the day before Sumintra died, she was very drowsy, in a lot of pain and on drugs like methadone.

She accepted that she had been on these drugs from the time she had been in Russell Kemp, but said that in the last week of her life she was shutting down and was sleeping “extremely more”. She said that even though Sumintra was so weak and drowsy, you could touch her and say “mum” and Sumintra would raise her eyebrow to let Meena know that Sumintra could hear her. She said that Sumintra would hold her hand.

[95] Sumintra died in the early evening on 26 September 2008. Dr Rodrigo commented that the nursing notes indicate that on that day Sumintra was alert, she had not shown signs of significant deterioration that day, and her passing was unexpected by the nursing staff. The death certificate records the cause of death as “End Stage Renal Failure 2 months Congestive Heart Failure 2 months Liver Cirrhosis 2 months Diabetes Years Hypertension Years”.

Sumintra’s funeral

[96] Navin attended his mother’s funeral. His presence upset some of the family. Hemant had arranged a security guard because he received a telephone call that the brothers were there to have a fight. Hemant said that Navin and Peter told him they would “break [his] face” because they were not asked to speak at the funeral. Hemant said that this was because they had told him at Dharam’s funeral that they were not there to speak with their mother. Hemant said that his view was that if they were not speaking with their mother when she was alive they were not going to speak for her when she was dead. Hemant also said that Navin and Peter wanted to “fix” Naren and were swearing at him in front of Meena and their children. Sashi said that Varsha and Vashna had a big fight with Navin and Peter and were swearing at him. Hemant said that it took some “very cool minds” to calm things down.

Testamentary capacity

The law

[97] The relevant legal principles are as follows:

a) In probate proceedings, in the absence of evidence raising lack of capacity as a tenable issue, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity.7

b) If there is evidence which raises lack of capacity as a tenable issue, the applicant for probate has the onus of satisfying the Court that the maker of the will did have testamentary capacity.8 That onus must be

discharged on the balance of probabilities.9

c) A testatrix has testamentary capacity if their mind and memory is sufficiently sound to enable her to know and understand the business in which she was engaged.10 That is said to require that the testatrix must understand that she is making a will and the effect of doing so, the extent of her property being disposed of, and the nature and extent of the claims upon her both of those being excluded and those being

included in the will (also referred to as the “moral claims” to which

she ought to give effect).11

d) The critical time is the capacity of the testatrix when she signed the will.12

e) Where there has been a delay between the deceased’s instructions and the execution of the will, and the testatrix does not have testamentary capacity at the time of execution the will, the will may still be valid. It is valid if the deceased was competent at the time she gave her instructions and, if at the time she executed the will, she was capable of understanding that she was executing a will prepared in accordance

_{with her instructions.}13

7 Bishop v O'Dea [1999] NZCA 239; (1999) 18 FRNZ 492 (CA) citing Re White [1951] NZLR 393 (CA) and Peters v

_{Morris CA99/85, 19 May 1987.}

8 _{Bishop v O'Dea at [2]; Peters v Morris at 25.}

9 _{Bishop v O'Dea at [3].}

10 _{Banks v Goodfellow (1870) LR 5 QB 549 at 567.}

11 _{Banks v Goodfellow at 569; Peters v Morris at 22-23; Bishop v O'Dea at [4].}

12 _{Bishop v O'Dea at [15].}

13 Parker v Felgate (1883) 8 PD 171 (PDAD) and Tansley v Trustee Executors & Agency Co of

New Zealand HC Wellington CP698/92, 17 March 1994.

Evidence raising a tenable issue of incapacity?

[98] As I indicated at the hearing, in this case there was some evidence raising lack of capacity as a tenable issue. The reliable evidence that raised this issue as a tenable one included that:

a) Sumintra was terminally ill and receiving palliative care in a hospice when she gave the instructions for her will.

b) Sumintra confirmed her instructions and executed the will when she had lost her husband less than two weeks earlier.

c) Sumintra attended Dharam’s funeral in a wheelchair, was unwell and looked very sad.

d) Sumintra’s illness had the potential to cause confusion. She was on heavy palliative care medication which also had the potential to cause cloudiness of the mind.

e) Sumintra did not tell those who were helping with the will that she already had a will.

f) Sumintra was too weak to sign her name on the will.

g) The nursing staff had been unable to wake Sumintra for Mr Gee when he first visited her on 14 August (three days after she executed the will).

h) Sumintra was unresponsive when Sashi Collins visited her (probably on 16 August, which was five days after the will was executed).

i) Seven days after Sumintra executed the will Sumintra was too weak to sign the powers of attorney with other than a mark.

10. Meena made a statutory declaration on 22 September that Sumintra was mentally incapable on that date.
    

k) Sumintra died about six weeks after she had executed the will.

[99] The onus is therefore on the executrix to satisfy the Court that, on the balance of probabilities, Sumintra had testamentary capacity.

Has executrix established testamentary capacity on the balance of probabilities?

[100] Counsel for Navin submits that the evidence is insufficient for the executrix (Meena) to discharge the burden of proof. In this case it is not said that Sumintra had any mental illness or disease of the mind that affected her capacity. It is said that Sumintra’s deep grief because of the sudden death of her husband, combined with the weakness of her physical condition and the insistent representations that she make her will, were very likely to have affected her capacity to act on her own volition in a clear and considered way.

[101] To answer the question of whether Sumintra had a sufficiently sound mind and memory, I start with the evidence of those who saw her when she executed the will. All of them gave evidence to the effect that Sumintra was lucid and acknowledged her understanding of and agreement with the will as it was explained to her by James. If their evidence is accepted then Sumintra had testamentary capacity.

[102] There are a number of reasons to accept this evidence. First, the medical evidence is consistent with Sumintra being of sound mind and memory. Although there is no medical evidence as to Sumintra’s capacity on the day the will was executed, nor was there evidence that any specific medical testing of mental capacity was carried out on Sumintra in the days leading up to or after her will, the medical professionals who attended on her before and after she executed the will observed no problems with her mental capacity. In particular:

a) Dr Gaus’ unchallenged evidence was that up to the time of Sumintra’s admission to the hospice there was no indication that Sumintra suffered from any mental incapacity and that Dr Gaus believed she would have known if there had been any issue about that. Therefore, if there was any mental incapacity, it can only have arisen after

11 July 2008.

b) There is no direct medical evidence of Sumintra’s capacity during her time in the hospice but the hospital notes signed on 1 August 2008 indicated only that she may have had some (unspecified) degree of memory loss, while at the same time she was considered to be “alert” and there was no indications of “confusion”.

c) On 4 August 2008, when Sumintra was admitted to Russell Kemp, Dr Rodrigo observed Sumintra to be lucid and alert and she had no difficulty communicating with her. On 20 August 2008 Dr Rodrigo was able to communicate with Sumintra for the purpose of attending to her chest infection.

d) To the extent that Sumintra’s illness and the drugs she was on could cause episodes of confusion or cloudiness, there was no mention of this in the nursing notes up to the time of the execution of the will and Dr Rodrigo had no reason to doubt her mental capacity.

[103] Secondly, the fact witnesses who saw Sumintra in the period preceding the execution of the will, support the position that Sumintra was of sound mind and memory. In particular:

a) Sanjay, Hemant and James gave evidence of how Sumintra appeared to them on 16 July 2008. Rosaline gave evidence of how Sumintra appeared to her when she visited her on two occasions while she was in the hospice. All four of them considered Sumintra to be communicating normally. Sanjay, Hemant and James said Sumintra was able to understand their discussion and to tell them of her wishes.

b) As set out above, there is conflicting evidence of how Sumintra was at the funeral. There is no doubt that Sumintra was physically unwell at this stage. The conflict arises as to whether she was alert and responsive to what was happening around her. On the one hand, Navin, Sashi and Peter Collins said she was unresponsive. However, the evidence of others, namely Meena, Naren, Hemant, James and Rosaline, was that Sumintra recognised and interacted with people at the funeral.

c) Rosaline visited Sumintra the day before she signed the will. She considered Sumintra to be lucid. Counsel for Navin submits that Rosaline gave evidence of a more tired, softly spoken Sumintra at this time, whose conversation was limited to recognising her visitors and saying goodbye. That is so, but there is no evidence that her physical weakness equated to mental weakness.

[104] Thirdly, there is the evidence of Mr Gee in the week after the will was executed. The evidence is that Sumintra was increasingly tired and weak from about this time. At times she was not able to be woken. It was on one of those occasions that Mr Gee visited her. The nursing notes indicate that this was probably when Sashi must have visited. It was in this period that she gave her consent to the powers of attorney she executed. Mr Gee was an experienced Public Trust employee and he was satisfied that she had understood his careful explanations and that she wanted Meena to have the powers those documents provided.

[105] Fourthly, the will was similar to the will she had made in March 2007, at a time when no doubt about her testamentary capacity has been raised. Meena had replaced Naren and the girls as executrix and was now one of the beneficiaries, but the will was otherwise consistent with the will Sumintra had made in March 2007.

[106] Fifthly, there is no reason to think that Sumintra had ceased to act rationally. Counsel for Navin refers to In re Key decd14 in which the Court noted that there was

_{an “ever widening range of circumstances now regarded as sufficient to give rise to a}

14 In re Key, decd [2010] 1 WLR 2020.

risk of mental disorder, sufficient to deprive a patient of the power of rational decision-making”.15 In that case the Court referred to “affective disorder” caused by bereavement as being a recognised disorder.16 The experts in that case considered that this was more likely to affect powers of decision-making than comprehension. That is, a person in that condition might have the capacity to understand what her property was and who her relatives and dependents were, but not have the mental

energy to make any decisions of her own about who to benefit.

[107] While I do not doubt that could occur, there is no expert evidence in this case that Sumintra was in that sort of state. The evidence of others shows that she was acting rationally. Mr Muneshwar said that in 2007 she was “full of reasons” as to why she wanted to have Varsha and Vashna and not the others in her will. Those reasons were rational. She was closest to Naren and Meena’s three girls, through having helped raised them, and Vandhana was already settled and well-provided for. She had explained that to Mr Muneshwar in March 2007. She explained that again in 2008.

[108] The evidence about exactly when Sumintra decided to include Meena was not clear. Hemant said that he asked Sumintra whether, now that Dharam has passed away, she wanted the whole of the house to go to the two girls. Sumintra replied that she wanted Meena, in the place of Naren, to be included. James was clear that Sumintra wanted to benefit two of her granddaughters and that she had her reasons for doing so. James may not have been clear about when Meena was first mentioned, but if Hemant is correct that was because this was something he discussed with Sumintra after the 16 July 2008 visit. Sanjay agreed that Sumintra had said she wished to include Meena. However, Sanjay, Hemant and James were all clear that Sumintra wanted to include Meena as executrix and as a beneficiary.

[109] In 2007 Sumintra had told Mr Muneshwar why she was not including her sons or her other grandchildren. Although Sumintra appears not to have explained this again in 2008, there is no credible evidence to suggest that she had forgotten

_{them. It is not suggested that any of them had any particularly strong moral claim on}

15 _{At [95].}

16 At [95].

her estate such that she had a duty to include them. She was close to Varsha and Vashna and felt their lives would benefit from inclusion in her estate. Meena was there for her when she was sick. She was, for example, the one who Dharam called upon to do things for Sumintra and who supported Sumintra when Dharam died. My impression of Meena’s evidence in Court was that she cared deeply for Sumintra and still grieved her passing. Mr Gee’s independent observation was that Sumintra and Meena were comfortable with each other.

[110] The evidence also shows that Sumintra acted with her comprehension (i.e. that she understood what she was doing, was capable of communicating and did so). Counsel for Navin said that the evidence showed only that Sumintra nodded or said yes to things. While that seems largely to have been the case on the day the will was executed, James said that he questioned Sumintra to check the will was as she intended. Hemant said that Sumintra raised her hand when the suggestion was made that she sign with her thumb print. The will was prepared in accordance with the initial discussion on 16 July 2008 and subsequent discussions with Sanjay and Hemant. At that earlier time Sumintra explained why she wanted Varsha and Vashna to benefit and not others. There was no need for Sumintra to do anything other than nod or say yes, when the will had been prepared in accordance with her wishes as earlier conveyed.

[111] Finally, there was evidence that Sumintra understood that her estate comprised the house, any money in her bank account, and her personal effects (e.g. jewellery, saris and a sewing machine). Hemant said this was discussed. Her personal belongings (including “cash”) and the house were referred to in the will which James had carefully explained to her. Mr Gee said that Sumintra confirmed to him, a few days after she had signed her will, that she had a house and a bank account. She seems not to have mentioned her husband’s bonus bonds, but they were not of a great sum and may already have been used to help pay for Dharam’s funeral.

[112] As to the evidence suggesting that Sumintra lacked capacity? There is no doubt that Sumintra was physically weak and approaching death. She was too weak to sign her name. Added to that, she was grieving the unexpected loss of her

husband and had given up on life. Counsel for Navin says that in her state, she was subjected to representations from Sanjay and Hemant that she must make a will. I reject the submission that Sanjay and others placed emotional pressure on Sumintra. The evidence was only that they thought Sumintra needed to have a will because Dharam did not. The evidence from Sanjay and Hemant was that they wanted to ensure that Sumintra understood that she needed a will, not that they placed any pressure on her as to who she benefit on that will. Hemant said that Sumintra explained her wishes and that they were not making any “suggestions”.

[113] Pointing against Sumintra’s capacity is Meena’s statutory declaration on

22 September 2008. However, Meena did not prepare the statutory declaration. Meena said she must have read it but did not recall thinking about the statement that Sumintra was “mentally incapable”. Meena had been under her own stress. As she said, in an emotional response to a question in cross-examination about why she was given the power of attorneys and not anyone else, when all this was happening she was “in so much stress”.

[114] The reason for this stress was explained as follows: Meena said that in May and June she had spent nine days in hospital. After this, she was on sick leave from her work and that was when Dharam passed away. She said she had to deal with that, and Sumintra was deteriorating and her own husband was going for surgery. She said she had to clean the house and go back to work. She just wanted things to go smoothly, so that the mortgage and rates would be paid. She said that she had to deal with all the paperwork herself and she was not reading “any fine print”. She said she did not have time to discuss the paperwork with anyone but she “swore on the bible” that she did not do “anything wrong”. She said it was not her choice to be in Court on Sumintra’s will and incurring costs and bills, and her first priority was her husband who was on nine hours of dialysis every day. At some stage in all of this, her daughter became engaged and was married. She said “only if I wasn’t there like the other daughters-in-law, I wouldn’t be here facing this”.

[115] I accept that with all this going on Meena may not have focussed on the precise terms of the standard form for statutory declaration. Meena’s actual assessment of Sumintra was that she was just too weak to be completing documents

by that stage. Her description of Sumintra in the last week before her death was compelling. To ask Sumintra to sign documents in her weak and dying state, when Meena already had a power of attorney which avoided this, was completely unnecessary. Against that background, Meena’s declaration that Sumintra was mentally incapable at that time does not show that she was mentally incompetent when she signed her will.

[116] Counsel for Navin refers to the will providing that the residue of the estate was to go to Sumintra’s husband even though he was dead. However, the will was put together from Hemant’s research on the internet. He was not legally qualified. It is quite understandable that he kept a provision in a will prepared in this way, which was of no consequence. James explained to Sumintra that it applied only if Dharam were alive, which was not the case.

[117] Counsel for Navin submits that it is significant that seemingly at no time did Sumintra remember that she had made a will in the previous year. I agree that it does seem that Sumintra did not mention to anyone that she had already made a will. But that is not evidence that she had forgotten that she had made a will. The evidence was that Naren did not want to be in the will. Sumintra agreed with Naren about that. If Sumintra had remembered her earlier will, then she needed to remake the will to replace Naren with Meena.

[118] Even if Sumintra did not remember her earlier will, that does not mean she lacked capacity. As was said in Banks v Goodfellow:17

The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? ... were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?

[119] Sumintra may have had some memory loss (as per the hospital note and possibly as to whether she had eaten anything that day if Sanjay’s recollection was correct about what she had said on that topic). But that does not mean she was

deprived of testamentary capacity. Again, to refer to the words of Banks v

Goodfellow:18

In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they could in comprehending business in some measure new.

[120] Although that refers to comprehension of other business matters, the point is that some things will be more important to a dying person than others. They may have the strength to focus on their will, while forgetting matters that are of no consequence to them anymore. I do not find it surprising that a person who is dying, forgets that she has eaten that day, but is able to exercise her mind clearly on the matter of her will.

[121] That brings me back to the credibility and reliability of the evidence of the fact witnesses. I do not place any weight on Naren or Peter Collins’ evidence as they were not available for cross-examination, and in Mr Collins’ case I was not provided with details about why he had gone to Fiji and why that meant he was unavailable for the hearing. Putting their evidence to one side, the difficulty with the evidence about the funeral is that it is the very kind of occasion where perceptions and recall can be skewed by the emotion of the occasion and all that has gone before. In this case, it is clear that there was a long-standing family dispute over (at least) the service station business and, possibly, also (if Meena’s evidence is accepted over that of Navin’s evidence on this point) over Navin’s failure to account to his parents for the sale of the house in Canada. It is therefore quite possible that Meena might perceive Navin as not having had anything to do with Sumintra at the funeral even if Navin did attempt to speak with his mother. It is also quite possible that Sumintra was cold and unresponsive to Navin and Sashi, although responsive to others.

[122] I do have doubts about Navin’s claim that there was no money left from the house sale in Canada, because I would have expected that better evidence was available to Navin to support this than that which was produced. However I do not reject Navin’s evidence about how his mother was at the funeral on this basis. I reject it on the basis that I accept the evidence of all the other witnesses who gave a different picture of Sumintra before the funeral when Sumintra was in the hospice, at the funeral, and afterwards when Sumintra was in the hospital. That evidence is inconsistent with Navin’s and Sashi’s account of Sumintra’s condition at the funeral.

[123] I acknowledge that there are some reasons for pause before accepting Meena’s evidence. She stands to gain under Sumintra’s will. She was also not entirely forthcoming about the expenses of the estate, although that may be explained by her dislike and distrust of Navin and that she did not want or choose to be the executrix. As to the others, Sanjay was Meena’s sister. Hemant was a close friend. Rosaline was Dharam and Sumintra’s niece, and close to Naren and Meena. However James was less closely tied. James considered that Sumintra had “perfect mental ability”.

[124] Navin alleged they were all lying but I am not prepared to accept that all five witnesses were lying on anything more than his say-so. His description that Dharam and Sumintra were kept like “slaves” was over-the-top and not the evidence of others. There was no reason whatsoever to doubt the veracity or reliability of Mr Gee and Dr Rodrigo. Mr Gee was satisfied that Sumintra understood the powers of attorney (albeit he thought he had a letter confirming her capacity). Dr Rodrigo had no reason to doubt Sumintra’s mental capacity (albeit that she did not specifically test for this and saw her only briefly). I find the combined evidence of Meena, Sanjay, Hemant, James, Rosaline, Mr Gee and Dr Rodrigo to be more reliable than Navin’s perception based on his observations at the funeral; and, similarly, than Sashi’s perception of Sumintra at the funeral (when she had not seen Sumintra for some time before that and did not know she was in a hospice) and when she saw Sumintra in a groggy state on two evenings in the hospital.

[125] Overall I am satisfied that the executrix has proven on the balance of probabilities that Sumintra had testamentary capacity when she executed the will.

Had I found otherwise as to Sumintra’s capacity at the time she executed the will, I would have found that at this time she was capable of understanding that she was executing a will prepared in accordance with her instructions given on 16 July 2008 and as further discussed/confirmed in the few weeks after that.

Knowledge and approval of will

[126] In addition to testamentary capacity it has been said that a will-maker must know and approve of the specific terms of the will.19 But that does not require the knowledge and appreciation of a lawyer. It is sufficient that the testatrix understands the elements of which it is composed and the disposition of her property “in its simple forms”. 20

[127] I accept the evidence that James explained slowly and carefully the provisions of the will and Sumintra acknowledged the explanation and gave her consent to the provisions. The witnesses present all confirmed this. There is no sufficient basis to find that evidence incredible or unreliable. Counsel for Navin says that the evidence only shows that Sumintra nodded or said “han” (Hindi for “yes”) as the will was read, even though the will referred to her husband and there was also a redundant provision that referred to “minor children”. However, there was no need for Sumintra to say anything other than yes. The will had been prepared in accordance with her instructions. The provision referring to her husband and to minor children were of no effect and therefore no consequence. I am satisfied on the evidence, on the balance of probabilities, that when Sumintra executed the will she knew and approved its contents.

Undue influence

[128] For Navin it is submitted that even if Sumintra had testamentary capacity and knew the contents of her will and approved it, she was subjected to undue influence

19 Re Whyte (Deceased) [1969] NZLR 519 at 520 applied in Rameka v Wikatene [2008] NZHC 1436; (2008) 27 FRNZ

_{149 at [43] and Puru v Puru HC Auckland CIV-2007-404-3881, 5 November 2008 at [77].}

20 Banks v Goodfellow, above n 10, at 567.

in respect of it. In support of this submission, counsel for Navin refers to the following:

a) Sumintra was in a state of “physical and mental depletion” (a phrase from Carey v Norton21 which sets out the principles of undue influence in this context) at the time she executed the will.

b) Sumintra was closely tied to and dependent on Naren and Meena,

especially after Dharam’s death.

c) Others involved in the will and its execution were family and friends of Naren and Meena, and Hemant and James were described as men in positions of status and influence in the Fijian-Indian community.

d) Sumintra did not receive advice or any explanation from an independent person.

e) Sumintra was compliant when she was taken through the terms of the will, nodding her consent rather than offering comments or asking questions.

f) Sumintra was surrounded by people – effectively on her death bed – and therefore without any real opportunity to freely form her own views.

[129] Like the issue of testamentary capacity, these matters provide a basis for some initial scepticism about the validity of Sumintra’s will, but on analysis of the evidence the concerns are not made out. The will was to a large extent consistent with the earlier will, when Sumintra was in better health. The will was in accordance with her instructions on 16 July 2008, when Sumintra discussed her wishes and her reasons for them. At that time, there was just Sanjay, Hemant and

_{James. There were further subsequent discussions with Sanjay and Hemant. It}

21. Carey v Norton [1998] 1 NZLR 661 (CA). The phrase comes from the High Court decision in that case (Re Meehan HC Auckland M191/95, 1 July 1996 at 63), which was upheld by the Court of Appeal.

might be thought that Sanjay would be happy to see that Meena benefited, but Hemant and James had nothing to gain from the will. James was a friend of Sumintra and Dharam, but not a close one. He was a Justice of the Peace who had explained and translated legal documents from English to Hindi many times. He saw his role as one of explaining the will to Sumintra, to make sure she understood it and agreed with it. He left after he was satisfied about this, whereas the family and close friends stayed on. James was in effect the independent adviser.

[130] I consider that Navin has failed to establish, on the balance of probabilities, that there was “undue influence” that impaired Sumintra’s judgment when she made her will.

Conclusion

[131] In the last few weeks of Sumintra’s life she was put to the trouble of having to think about her will and to confirm her instructions for that will. Those helping her with this thought that it would avoid a family dispute after her death. Sanjay, Hemant and James did their best to try to do things properly, but a dispute arose nonetheless. The long running dispute between the brothers was undoubtedly a factor in Navin’s suspicions about the will. Whatever the rights and wrongs of that dispute, it is unclear why Navin was not prepared to accept Sumintra’s will when, if successful, this would have served only to exclude Meena. The only two who stood to gain from a successful challenge were the other two adult beneficiaries (Varsha and Vashna), who were Meena’s daughters. They made no such challenge.

[132] In the event, having put Meena (and the other witnesses who gave evidence for her side) to the cost, time and stress of a contested High Court hearing, Navin’s challenge has been unsuccessful. I conclude that when Sumintra made her will on

11 August 2008 she had testamentary capacity, knew and approved the contents of her will and was not subjected to undue influence. These issues therefore no longer stand in the way of the grant of probate for the will. As these were the only issues raised, I order that probate be granted in respect of the will dated 11 August 2008.

[133] The parties did not make submissions on costs. I can indicate that I see no reason on the information before me why they should not follow the event. I hope that the parties will quickly and efficiently agree the quantum of costs. Should that not be possible, the parties have leave to file brief submissions (of no more than three pages each) on the items in dispute within three weeks of the date of this judgment.

Mallon J

Solicitors:

Family Law Specialists, Porirua

Ian McCulloch Max Tait Legal, Porirua