Flynn v Papageorgiou [2016] NZHC 2626 (2 November 2016)

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UNDER	section 5 of the Administration Act 1969, sections 3 and 4 of the Law Reform (Testamentary Promises) Act 1949 and Part 27 of the High Court Rules
IN THE MATTER	of the estate of the late Eunice Janet Sofianos
BETWEEN	CAROLINE ISABEL FLYNN First Plaintiff
AND	GERALD DENNIS SOFIANOS, DENNIS JAN SOFIANOS AND ALISON JOAN SOFIANOS Second Plaintiffs
AND	ANGELO BASIL PAPAGEORGIOU Defendant

Hearing:	25-27 October 2016
Counsel:	J S McHerron for Plaintiffs J C Corry and M E Hubble for Defendant
_Judgment:	_{2 November 2016}

Living arrangements and travel [10] Ms Sofianos’ health issues [21] Ms Sofianos’ mental health issues [26] Ms Sofianos’ relationship with siblings [33]

[1] Ms Eunice Sofianos died in September 2014, aged 61, following a battle with breast cancer. She had no spouse or children, and her parents were deceased. She does, however, have four surviving siblings who are the plaintiffs in this case. Ms Sofianos had one main asset, a house she had inherited some years earlier from an aunt. In 2009, about a year after inheriting the house, she made her first and only will which left her estate to two cousins living in Greece. Her siblings bring these

[2] There is no contemporaneous medical information that would cast doubt on her capacity. Instead, the plaintiffs rely on historical diagnosis of certain conditions which are said to have continued untreated, and shown by the following allegedly irrational acts:

(a) her interactions with the medical profession over the years and decisions she made contrary to advice;

(b) her dealings with her siblings over her mother’s estate, including ignoring sound legal advice;

(c) her decision to go at considerable financial cost to Greece for surgery and other treatment for her breast cancer, rather than avail herself of cheaper opportunities in New Zealand and Australia;

(1) Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.

(i) understands the nature of the act and its effects; and also the extent of the property of which he is deposing;

(ii) is able to comprehend and appreciate the claims to which he ought to give effect;

(iii) be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

(3) Unsoundness of mind arising from want of intelligence caused by defective organisation, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But:

(i) though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.

(ii) It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.

(4) It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.

(5) 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 weakness, feebleness or debility and yet he may have enough 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.

²Woodward v Smith [2009] NZCA 215 at [19], summarising the leading authority Banks v

(6) A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.

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

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

[4] The plaintiff’s case is firmly founded in para (2)(iii). This in turn reflects a passage from Banks v Goodfellow on which reliance is placed:³

Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.

[5] Concerning onus of proof, it is common ground that the plaintiffs carry an initial onus to establish a tenable case that Ms Sofianos lacked testamentary capacity. Thereafter, the onus shifts to the defendant as proponent of the will.

[6] Ms Sofianos was the fourth of five children, born in Melbourne in 1952. Her parents had moved there following World War II. Some other members of the extended family – her grandfather and some aunts and uncles – had settled in

[7] When Eunice was two years old, her mother was pregnant and Eunice’s aunt, Phyllis Karantzis, came from New Zealand to assist. Phyllis suggested she take one of the children back to New Zealand for a while to help ease the pressure. Phyllis was not married, and had no children of her own. Eunice travelled to New Zealand and remained with Phyllis until she was 11 or 12 years of age. The evidence is that the length of this period was contrary to the wishes of Eunice’s family, but they were unable to arrange her return.

[8] Eunice returned to live in Melbourne from around 12 years of age. Eunice’s sister, Mrs Caroline Flynn, says Eunice was aggressive and resentful when she returned. She was unused to sharing affection with others, and was difficult. She ultimately returned to New Zealand when she was about 18 years of age and lived here thereafter.

[9] The evidence does not provide a complete profile of Ms Sofianos’ life. From a work history viewpoint, she was for a period in the Royal New Zealand Airforce but that did not end well, as discussed further below. Other than that there is no record of her having employment and it seems for most of her life she was a sickness beneficiary. Her health was a major factor in her life.

[10] Ms Sofianos lived most of her adult life in Wellington with her Aunt Phyllis. Her grandfather lived in the house as well until his passing in 1976. It seems the house was in his name and eventually was transferred into Phyllis’ name.⁴

[11] Eunice and Phyllis travelled to Greece in 1987. They stayed with a brother of Phyllis, Arthur, and his wife Anna. Arthur and Anna had previously lived in Wellington but had returned to Greece in 1970. Arthur and Anna had three children

⁴The evidence of Mr Dionysios Karantzis is that this was by way of a settlement after two of the

[12] It seems Phyllis and Eunice next travelled to Greece in the mid-2000s to obtain treatment for Phyllis’ breast cancer. On the occasion of this and subsequent visits, Eunice and her aunt stayed at a hotel in the centre of Athens. They would visit Arthur and Anna’s house and attend family gatherings. Dionysios said that during these visits, his sister Zafeiria would see more of them than he did.

[13] Another cousin, Ms Rosana Boulieris, assisted in arranging for Phyllis to have treatment in Greece. Ms Boulieris was born in New Zealand but moved to Greece in the 1970s. She lived there until 2010. Ms Boulieris said that prior to Phyllis and Eunice coming to Greece for Phyllis’ medical treatment, Eunice had rung her. Eunice wanted to get in touch with another cousin, Professor Aliki Maniatis who is an oncologist. Ms Boulieris contacted her cousin who confirmed she would assist if they came to Greece. Ms Boulieris confirms Phyllis had surgery. She would transport Phyllis and Eunice to the hospital for Phyllis to have treatment.

[14] Phyllis died in 2008 in New Zealand. Ms Boulieris was back in the country at the time of the memorial service, which she attended. She notes there was hardly anyone there. In that regard it appears that Eunice’s family in Australia were not aware at the time of Phyllis’ death. Ms Boulieris felt sad for Eunice who was now on her own. She visited with her until Ms Boulieris returned to Athens in September 2008.

[15] It seems that around November 2008 Eunice learned that she had breast cancer. Exactly who made the diagnosis is undisclosed by any available records, but Eunice travelled to Greece for a short visit to confirm the diagnosis. Eunice returned to New Zealand before arranging a loan⁵in January 2009 and travelled back to Greece for surgery and subsequent treatment.

[16] As noted Ms Boulieris was by now back in Greece and she again assisted Eunice with transport to the hospital. She was present for the surgery and visited her for the four to five days Eunice spent in hospital afterwards. She then assisted with

[17] Dionysios Karantzis, Arthur and Anna’s son, was likewise in Athens at the time Eunice had her operation. He recalls her visiting the family home, and he gave her some assistance with travel. He confirms that through this period Aliki Maniatis was supporting Eunice, and giving her advice. Mr Karantzis says that during this time Eunice asked to visit his father’s (Arthur) grave. His mother and he accompanied her. It was a touching event and reflected the bond Eunice had developed with his father, Phyllis’ brother.

[18] Eunice returned to New Zealand at the end of March 2009. She lived in the house she had inherited from Phyllis, and which she had mortgaged in order to travel to Greece for surgery. There is little in the evidence concerning the next two years, other than information about refinancing her mortgage. It seems Eunice had not advised her New Zealand doctors of her cancer but in late 2011 it was again detected on an MRI.

[19] The period from November 2011 to September 2014 when she died involved a series of interactions with the medical profession in which, from their viewpoint, Eunice would fairly be seen as a difficult patient. At one point she “sacked” everyone assisting her, stopped taking her medicine, and decided to trust in God. It

seems there was then in fact a period of almost 18 months of good health⁶before the

[21] Ms Sofianos had a number of medical issues which do not need detailing. They provide the context, however, for her ongoing dissatisfaction with the medical profession. The evidence indicates Ms Sofianos considered her ailments were more serious than being acknowledged, or that there were more serious issues underlying

profession, and also seemingly was affected physically by her own perceptions of what was wrong with her. For example, she used crutches most of her life and there is some question of whether this was necessary.

[22] The evidence also suggests Ms Sofianos was a difficult patient who bridled against being told what to do. She often rejected medical advice, and seemingly had more than one general practitioner on the go at any time. For example, her general practitioner for many years never signed off her benefit entitlement; this was done by another doctor whom she attending at the same time for many years.⁷Ms Sofianos’ brother-in-law, Dr Michael Flynn (the first plaintiff’s husband) helped her over years with her various difficulties (primarily in relation to her left foot, and then

abdominal/gynaecological issues) and described how on many occasions she would describe other medical people in abusive terms. Dr Flynn assisted Eunice to obtain consultations in Australia with various specialists and undoubtedly devoted considerable energy to helping her.

[23] I note that Ms Sofianos often made complaints about the medical profession, and seemingly would threaten legal proceedings although there is no record of any being commenced here or in Australia.

[24] Evidence was called from Dr Aine McCoy who was Ms Sofianos’ regular general practitioner from 1994 onwards. There were, however, breaks over this time. In particular Ms Sofianos dispensed with her services in November 2007, and Dr McCoy only came on board again in October 2011. Accordingly, Dr McCoy was not the general practitioner around the time the will was signed in January 2009.

[25] Dr McCoy confirmed Ms Sofianos was generally angry with the medical profession. However, she still visited doctors, and Dr McCoy considered despite occasions of unhappiness on Eunice’s part they had a fairly good relationship and as

⁷By way of observation it can be noted this practice of having more than one doctor is long standing. In 1977 a specialist in Wellington Hospital wrote noting that she was seeing at least four different specialists without each being aware of that.

[26] The interesting thing about Ms Sofianos’ so-called mental health issues is that none of her doctors, her family and her lawyer knew of these until this trial process commenced. One reason may be that formal involvement of the medical profession in these issues occurred between 1974 and 1982, so some 26 years before Ms Sofianos made her will.

[27] In June 1974 Ms Sofianos was committed to a psychiatric institution under the Mental Health Act 1969. She was at the time in the Air Force and seemingly her conduct had raised concerns. It seems to have involved paranoia or delusions and was reflected in irrational statements. The doctor who assessed her on admission himself could detect no paranoid delusions or ideas. Her condition before him was markedly different from that described in the admission documentation. Based on that documentation, but not on his observation, he made a diagnosis of

[28] The balance of her engagement with the mental health profession seems primarily caused by difficulties Ms Sofianos had over her physical ailments. She would complain of problems, and certainly she had a series of urinary tract infections, as well as abdominal pain. However, she would then refuse to co-operate. One report suggests she blamed a specialist for her discharge from the Armed Services as medically unfit.

[29] The constant theme of the reports was concern about Ms Sofianos’ future well-being, and her unwillingness to engage with psychological services. She had a “hopelessly restricted social life”, a close and inter-dependent relationship with Phyllis, and an inability to work because of ongoing abdominal issues which the medical profession considered were more a product of emotional stress and her life arrangements than pathological. The main attending psychiatrist feared she would

3. ... This is a disorder where people experience a variety of medical signs and symptoms which can arise from both psychological and physical causes. Frequently the person involved leads a life where they are incapacitated by their medical difficulties, are dependent on their families and medical advisors, and present a life of illness instead of developing independence and the self sufficiency characteristic of ordinary adult adjustment. Sometimes there is a deliberate wish to be ill, or to obtain the advantages of illness. Most characteristically, however, much of this life style develops unwittingly so that the person experiences great difficulty if an attempt is made to return to a more ordinary adult adjustment.

4. This abnormality in her behaviour has been compounded by the injury in 1979 so that Miss Safianos now believes that she should be compensated financially for what has occurred. This probably makes the adjustment more intense so that she is, in a sense, even more ensnared by her difficulties.

Dr Marks considered it would be difficult to assist her but suggested intensive psychiatric counselling if she would accept it.

[31] That appears to be the end of the engagement with mental health personnel. There is nothing in the medical notes of the various practitioners from 1982 to 2009 that identifies anything related to mental illness. Dr McCoy (1994–2007) said that Eunice never in the time she was treating her presented as depressed. She was at times anxious and worried about her health. When cancer arrived, however, she seemed to be more positive and was impatient with fuss being made about her.

[32] There were two post-2009 references to mental health. In November 2011 when cancer was detected, it seems Ms Sofianos denied the fact. The medical team’s assessment at the time was that her denial was extreme but not delusional. In 2014 when the cancer had again taken over, and again Ms Sofianos was continuing to deny it and instead place her trust in God, her psychiatric history from 1975 was, seemingly for the first time in medical notes, recognised. Ms Sofianos was refusing palliative care and expressing belief she would get better. The notes observe her “eccentric personality, quiescent schizophrenia or encapsulated delusion due to religious belief [was] not interfering with her medical treatment”.

[33] As noted, Ms Sofianos had unusually little contact with her siblings in her formative years. She was absent overseas from aged two and a half to aged 12, and then again from the time she was 18. Evidence was given by two siblings, Mrs Caroline Flynn who is the eldest of the five children, and Mr Gerald Sofianos who was the second child.

[34] Mrs Flynn says a relationship with Eunice was difficult and she always felt on eggshells when talking to her. Eunice could get angry and take offence.

[35] In terms of contact, Mrs Flynn says they saw Eunice and Phyllis in the 1990s on an occasion when the two were returning from Greece. Phyllis had broken her ankle when visiting Arthur and Anna’s house. Other records suggest this was 1988. On this occasion Eunice met the Flynns’ three children.

[36] Of the other visits Mrs Flynn refers to meeting them on two of the trips to Australia. The mother of Mrs Flynn and Ms Sofianos had not long passed away,⁹and Mrs Flynn said that Eunice claimed doctors had killed her. In 2003 there was a gathering on the anniversary of their mother’s death. At that time a discussion was had concerning their mother’s will. I will return later to that topic.

[37] Mrs Flynn says that after the death of their Aunt Phyllis, the siblings grew closer to Eunice. However, Mrs Flynn considers the unhealthy influence of Aunt Phyllis continued, and held Eunice back from becoming closer. Mrs Flynn says that after Aunt Phyllis died (2008) she, Gerald or another brother phoned Eunice once a month. She says Eunice was becoming more religious, and believed that God would

[38] It seems the family did not know of Eunice getting cancer or travelling to Greece for treatment. Mrs Flynn was advised of it by a New Zealand-based cousin in October 2009.¹⁰

[39] There is a gap in the evidence about contact until 2011 which is presumably a reference to the time the cancer returned. Mrs Flynn says there was regular contact at different times. Dr Flynn visited in 2013 during the time when, seemingly, Eunice was in remission. He found her surprisingly well, which is a fair assessment given what he might have expected as a result of her having cancer.

[40] Mr Gerald Sofianos details various visits he made to Wellington and the things he did on Phyllis’ house and grounds. This seems to have been evidence directed at an abandoned testamentary promises claim. Aspects of his evidence are unsatisfactory in that it appears to record events of which he had personal knowledge but in fact were all second hand. Mr Sofianos also speaks of making many phone calls to Eunice but it transpired these were on average only once a year at most.

[41] Not particularly relevant to my reasoning, there was a conflict in the evidence between Mr Sofianos and Dionysios Karantzis. It concerned whether Mr Karantzis’ mother had made derogatory comments in the presence of both witnesses about Eunice, including pointing to her head as a sign of madness. For the record, I preferred clearly the evidence of Mr Karantzis. He is the beneficiary under the will of 20 per cent of the estate but made no effort to overstate his relationship to Eunice or his claim to the money. His recollection of the occasion of Mr Sofianos’ visit seemed valid and genuine as he had given up his bed for Mr Sofianos to use. I have identified aspects of Mr Sofianos’ evidence that I did not find convincing.

[42] It is appropriate under this section to address other evidence about the relationship of Eunice with her siblings. Mr Papageorgiou acted for a period as Ms Sofianos’ solicitor. He had known her since childhood, and they were both very much a part of the Greek community in Wellington. He obviously felt a desire or

_{obligation to assist Eunice and did much for her on an unpaid, support
person basis.}

As a solicitor he arranged the mortgage, drafted the will in which he was appointed executor, and arranged refinancing. He often visited her in hospital.

[43] Mr Papageorgiou says he never discussed Eunice’s siblings with her nor she with him. He knew she had siblings in Australia but not the make-up of the family. At the time Ms Sofianos made the will leaving everything to her Greek cousins, Mr Papageorgiou asked her about her relations in Australia. Ms Sofianos replied that she hated them, and Mr Papageorgiou did not inquire further.

[44] Ms Boulieris says that at times Eunice seemed angry about being left alone, as she saw it, after Phyllis passed away. She did not discuss Eunice’s siblings with her. Once she asked how they were and Eunice said she hated them. This seems to have been on the occasion of her time in Greece in 2009. Ms Boulieris says Eunice also said that her siblings had offered her some of their mother’s estate but it was not enough.

[45] There are two other matters relied on by the plaintiffs which require me to outline the evidence. They are the events surrounding the mother’s estate, and the circumstances in which Ms Sofianos took out a mortgage to travel to Greece.

[46] The plaintiffs’ mother died in 2002. The family understood her operative will was one made in 1974 which left her estate to her five children equally. However, it transpires that in 1984 she had made a further will leaving everything to the youngest sibling, Ms Alison Sofianos.

[47] The plaintiffs considered their mother lacked testamentary capacity at that time. With the agreement of Alison it was proposed to seek recognition of the 1974 version as the valid will. Efforts were made to secure Eunice’s agreement, starting with the meeting in 2003 in Melbourne on the anniversary of their mother’s death.

[48] The process became very protracted and concluded (in part) in 2008. The basic idea of the family was to have it that Alison had the ability to live in the house until her death but that ultimately the five children would share equally. Conscious that Ms Sofianos is unable to put her side, and that the material relied upon is largely information drawn from letters written by legal advisers, it seems that over this period Ms Sofianos’ view changed several times. There are suggestions she wanted the house sold but was at the same time concerned about what would happen to Alison, and at another time she wanted a greater share than one-fifth. There were also doubts and suspicions on her part about the valuation.

[49] Towards the end of the process Mrs Flynn offered to pay Eunice in cash one-fifth of a fresh valuation. After a period Ms Sofianos agreed to this, but then difficulties emerged with how this would be achieved. Ms Sofianos wanted the cash before she signed; Mrs Flynn was advised not to do that. The correspondence also suggests the respective lawyers had different views about the sequence of documentation that could and should be followed. This phase went on for many

months.¹¹However, it appears that in late 2007 or through the early part of 2008

Ms Sofianos disengaged from the issue. Ultimately the rest of the family proceeded to reach an arrangement which did not involve Eunice, who took no further part nor sought to obtain her share. The last letter from her lawyer suggests that Ms Sofianos had indicated she thought her position on the matter was helping Alison.

[50] The relevance of all this is said to be that Eunice’s conduct is an example in the years preceding the signing of the will that indicates her irrationality (for declining a sensible settlement, and rejecting firm legal advice to accept it). It is likewise said that the family’s conduct is shown to be fair and therefore the sentiments expressed by Eunice that she hated her siblings were irrational and must

_{reflect the type of mental disturbance that undermines testamentary
capacity.}

[51] In January 2009 Ms Sofianos asked Mr Papageorgiou to arrange a loan for her to finance the trip to Greece for breast surgery. Ms Sofianos was a beneficiary with no work history and approaches to mainstream banks proved fruitless. Eventually with the assistance of a broker a loan was organised with a finance company specialising in short term lending. The terms were far less advantageous than would be obtained from a bank, but of course Ms Sofianos was in a hurry and could not get finance elsewhere.

[52] Mr Papageorgiou explained the comparatively punitive terms of the offer but Ms Sofianos entered into the contract. The structure was that there were no periodic payments required. Rather, it was a single lump sum repayment on due date. This suited as whilst abroad Ms Sofianos would not receive a benefit and realistically had no capacity to make monthly repayments.

[53] Concerning how she would repay it, Mr Papageorgiou said her intention was to sell the property because she was going to relocate to Greece. Ultimately she intended to become a nun in the Greek Orthodox Church. This was an idea that she mentioned to other people as well.

[54] Eventually, as noted, Ms Sofianos returned to New Zealand. The loan fell due but it is apparent from the documentation that Mr Papageorgiou struggled to get Ms Sofianos to engage with the issue. There were threats of mortgagee sale. Mr Papageorgiou managed to get the loan rolled over but eventually a mortgagee sale was imminent. At this point Ms Sofianos addressed the situation.

[55] A loan was organised with a mainstream bank. Mr Papageorgiou says the particular loan officer was impressed by Ms Sofianos’ organisation and commitment. The loan, assisted by a contribution of $11,500 from Ms Sofianos, repaid the finance company. It required monthly repayments and the budget prepared suggests it would be very tight on a benefit. It seems, however, Ms Sofianos was committed to obtaining employment.

[56] Various witnesses commented how Ms Sofianos lived frugally. She was very organised and aware of expenditure, and kept most bills for utilities and the like in well-ordered folders. It seems that following the new loan this frugality continued or increased. Witnesses spoke of her not having the power on but it seems more likely she would just not use it for things such as heating. What can be observed, however, is that there is no evidence of any difficulties or default with the new loan up to her death.

[57] The relevance of this loan situation is said to be that it is a further example of irrational conduct. Ms Sofianos could have used New Zealand’s medical facilities. Instead she chose to take out a loan she could not afford to go to Greece. Then she refused for almost 14 months to address the repayment issue, and then committed to a new loan she obviously could not afford.

[58] In my view these proceedings seek to construct a capacity issue when objectively there is no basis to consider one exists. There is no contemporaneous suggestion of any mental illness, and instead the plaintiffs rely on what is said to be an illness diagnosed in 1982 and untreated since then. Those who dealt with Ms Sofianos around the relevant time saw no issue that even needed looking into and in my view there is no apparent irrationality in anything she did at the time. As Dr McCoy said, there may have been decisions taken that we would wish were otherwise, but that is not to be equated with irrationality.

[59] In 2008 Ms Sofianos inherited property. Prior to that she had no assets. Then late in 2008 she was diagnosed with breast cancer. In January 2009 she made a will for the first time. Nothing could be more sensible given her diagnosis and given that she only recently had acquired an asset that made the existence of a will desirable.

[60] Ms Sofianos distrusted the New Zealand medical profession. Whether that was warranted or not is not the issue. It was her longstanding view. The decision around the time of her will to have surgery in Greece instead of New Zealand was not some sudden random decision. Further, she had experience of the Greek system through her aunt having had treatment there for the exact same condition, and she

had a cousin in Athens who is an oncologist who could assist her with obtaining the operation and subsequent treatment. Ms Sofianos had family in Greece with whom she had an established relationship, and who could provide assistance and support, as they indeed did. These were family members who had been born or lived in New Zealand but had subsequently returned to Greece or kept strong ties there. Given the type of surgery, going to somewhere where Ms Sofianos felt comfortable and had support was a perfectly reasonable choice.

[61] Against that background there was nothing irrational in signing up to the only finance option she had. It was her property, she had the option to sell it if she needed in order to repay the loan, and if that happened she would still have the balance of the equity. It was obviously a situation of urgency. It is not irrational to expend one’s own assets in pursuit of a preferred medical treatment to deal with a diagnosis of breast cancer. The structure of the loan, as it happens, was actually ideal, since it removed the obligation to make regular payments, the one thing she could not do at that time. And ultimately, the loan was able to be refinanced with a mainstream bank.

[62] I accept that Ms Sofianos disengaged, it seems, at the time she was under pressure from the finance company over repayment of the loan. But she is not the first person to be unable to confront such situations. Further, as with a considerable amount of the evidence, it was something that occurred well after the will was signed. Both in itself, and for this timing reason, it says nothing about her testamentary capacity.

[63] I then come to Ms Sofianos’ decision to leave her estate to her cousins in Greece. In my view that is not a sign of irrationality, nor has natural affection been replaced with insane suspicion or aversion, or been poisoned by a disorder of the mind. There are two aspects of the decision that require analysis – to whom the estate was left, and to whom it was not.

[64] Ms Sofianos’ situation was quite complex. She was part of a wider family but also since the death of her aunt, she lived a seemingly quite solitary life. There is nothing in the evidence that suggests to me she was any closer to her immediate

family than she was to some members of her wider family, and particularly her relatives in Greece.

[65] It is clear that she felt a strong connection to Greece and to the family of Dionysios and Zafeiria who are the beneficiaries. She and her aunt spent time there, and then when Ms Sofianos herself went to Athens for treatment for breast cancer, that family was again the focal point of her contact with relatives.¹²It is true that she and her aunt stayed at a hotel, as did she when alone, but that was equally the case when they visited Melbourne.

[66] Within the decision to leave the estate as she did there is a discernible pattern. Arthur and Anna in fact had three children but it turns out the oldest, Janetto, was never at home when Eunice visited. He is an attaché and has been based in cities around Europe. Similarly, the estate was divided 80 per cent to Zafeiria and 20 per cent to Dionysios. Dionysios, when asked, confirmed that Ms Sofianos had much more contact during this time in Athens with his sister than with him.

[67] Turning to Ms Sofianos’ siblings, I do not consider excluding them from the estate is objectively a sign that something wrong was going on. First, Ms Sofianos did not live at home for almost all her formative years (from two and a half to 12). The bonds that might normally be formed were not. Second, Mrs Flynn observed that they were difficult times when Eunice did return to the family. There were considerable adjustments needed and it did not always go well.

[68] Third, the history of contact between them does not suggest a particular closeness. There is engagement and contact, but not a degree of connection that would make the decision to not leave her estate to her siblings so surprising as to suggest a testamentary capacity issue.

[69] Finally, in the years preceding the making of the will, Ms Sofianos and her

siblings were in conflict over their mother’s will. The outcome was that Ms Sofianos walked away from the matter, and her siblings divided the estate between them. The

position of the plaintiffs is that they acted fairly, and there was no reason for Eunice to give up, nor to feel antipathy to them.

[70] That may be so, but there is in my view a considerable gap between unfair or unmerited antipathy, and irrationality. What is more relevant is that literally years of ongoing dispute provided a context or explanation for the feelings of antipathy, regardless of whether they were warranted. The circumstances accordingly do not give rise to an impression of an inexplicable dislike that itself suggests some mental disorder or delusion underlying the decision not to include her siblings in her will. It is also the case that this context of ongoing dispute sits on top of an unusual family history which meant Ms Sofianos was never as close to her siblings as might normally be the case.

[71] Of some interest to this issue is the fact that neither of the plaintiffs who testified themselves had any expectation that Ms Sofianos would leave them anything, nor identified any reason why she should. I recognise that this may just reflect a natural diffidence to assert rights to someone else’s property. However the fact remains that neither plaintiff attempted to establish a case for priority. This must be relevant to whether a testamentary capacity concern arises from the fact the property was left to cousins in Greece.

[72] I accept that Ms Sofianos’ statement, twice made, that she hated her siblings seems extreme and unwarranted. However, no-one explored this with her and I do not consider it gives rise to considerations of irrationality. It can just be hyperbole and as noted, there was an ongoing dispute that provided a context for feelings of antipathy, whether warranted or not.

[73] Next, in relation to whether objectively there is any reason to doubt capacity, I note that neither of the two witnesses in the best position to describe Ms Sofianos had any concern about her capacity. Dr McCoy knew Ms Sofianos well. She had treated her, in circumstances at times of some difficulty, from 1994 to 2007. In her role as a general practitioner she has familiarity with testamentary capacity issues, and she had no concerns at all about Ms Sofianos from that viewpoint. Ms Sofianos had never exhibited depression, nor were there other mental health issues. Hers was

a difficult personality, but she was capable of making her own decisions and was determined to do so.

[74] Whilst Dr McCoy’s role ended in November 2007, that is only 13 months prior to the will. There is no evidence that anything changed in that subsequent period, other than the diagnosis of breast cancer. Whilst that diagnosis might have prompted the making of a will, there is no basis to consider it influenced its content.

[75] Mr Papageorgiou had known Ms Sofianos since they were children, and had contact with her outside the solicitor-client relationship through church and community connections. As an experienced solicitor Mr Papageorgiou obviously has awareness of testamentary capacity issues. I accept Mr McHerron’s submission that Mr Papageorgiou sets the bar too high in terms of when a testamentary capacity inquiry is needed. But there is nothing in his evidence that would support any testamentary capacity issue existing in the present case.

[76] The final point to address in terms of Ms Sofianos’ conduct is her oft repeated comment that she would like to become a nun in the Greek Orthodox Church. This did not seem to figure prominently in the final presentation of the plaintiffs’ case, but for the record I do not consider it assists. Ms Sofianos obviously had a deep faith. She was single and had no immediate family in New Zealand. If she was minded to join religious life in a church she had always been part of, it does not seem a matter meriting comment.

[77] The final aspect of the plaintiffs’ case that requires consideration is the evidence of Dr Crawford Duncan, an experienced psychiatrist who specialises in the Psychiatry of Old Age. As such, issues of testamentary capacity are well within his expertise. To place his evidence in context, it is necessary to restate the plaintiffs’ approach to the case. The narrow focus is on the rule that the content of a will must not be influenced by the testator having a mental disorder that poisons their affections, or perverts their sense of right. The plaintiffs also emphasise that their task is only to establish there is a threshold question or issue; after that, the onus shifts to the defendant as proponent of the will. Dr Duncan’s evidence fits very much within the focus of establishing a threshold issue.

In my opinion it is likely that Ms Sofianos’ competency was compromised based on historical information concerning her mental health, but there is no contemporaneous information that any mental condition Ms Sofianos may have had influenced her decision making with regard to testamentary capacity on 27^thJanuary 2009. Knowing Ms Sofianos’ past difficulties, in my opinion, a precaution would have been to pursue an assessment for testamentary capacity, even after the event, to provide Ms Sofianos with the opportunity to explain her decision, or to refuse if that was her preference, so as to best represent her wishes and protect her interests.

[79] The report referred to the historical information, but Dr Duncan did not himself identify what mental disorder or illness was in issue. Rather, the proposition was that this historical information (which in fact no-one was aware of until this case) could suggest an issue and therefore a testamentary capacity assessment should

[80] Concerning a medical condition, the most Dr Duncan wished to say was that it could not be ruled out, given the diagnoses in the 1970s to early 1980s and the apparent absence of any treatment since. As I understand it from questioning, the possible “chronic psychiatric illness” Dr Duncan referred to at one point is that identified by Dr Marks (see [30] above). This relates to Ms Sofianos’ tendency to view her medical situation as being worse than it is, and as being pathologically sourced, despite all test results to the contrary.

Q. Are you able to say positively that her competence to make this will was actually affected by any mental disease?

A. I can’t say one way or the other, I’m just raising the potential and I don’t say one way or the other whether she had or lacked testamentary capacity. I was only really trying to raise where the area of doubt might be, be come from and that the decision, any review apart from a process like this, is based on what happened at the time she executed her will.

[82] Whilst respecting Dr Duncan’s expertise, I do not consider on this occasion his evidence advances the plaintiffs’ case. It is a very qualified opinion that there may be something to look into based on the historical information. To the extent there were more recent indicia of the issue, Dr Duncan referred to factual matters on which I have formed a view there is no basis for concern – going to Greece for treatment, taking out the loan, and leaving her estate to her Greece-based cousins.

[83] There is also something in Mr Corry’s point that saying that there may be an issue does not equate to proof there is an issue. Accepting that the dated psychiatric assessments suggest there would be a potential issue in later life, I do not accept the threshold is established in the absence of any contemporaneous medical records saying this happened or conduct pointing to an inexplicable antipathy sourced in a mental disorder. Nor does the condition Dr Marks describes obviously point to difficulties with testamentary capacity, and Dr Duncan’s report does not attempt to fill that void.

[84] The following passage from Peters v Morris sets out the approach to be taken to these cases:¹⁴

The approach adopted to the matter of proof in all these cases is the same – that before a will can be admitted to probate it must be shown that the testator was a person of sufficient mental capacity; that in the absence of any evidence to the contrary it will be presumed that the document has been made by a person or competent understanding; that once a doubt is raised as to the existence of testamentary capacity an onus rests on the person propounding the will to satisfy the Court that the testator retained his mental powers to the requisite extent; that in the end the tribunal must be able to

¹⁴Peters v Morris CA 99/85, 19 May 1987, Cooke P, McMullen and Somers JJ, at 25.

declare that it is satisfied of the testator’s competence at the relevant time, but that a will will not be defeated merely because a residual doubt remains as to that matter. The matter has been put in different ways with varying degrees of emphasis according to the circumstances of each case but we do not detect any difference of judicial opinion, significant for the purposes of the present case, in the passages cited.

[85] The first question is therefore whether a doubt has been raised that Ms Sofianos lacked testamentary capacity in the sense that her mind may not have been free of any disorder that poisoned her affections or perverted her sense of right.¹⁵

(a) the absence of any medical record suggesting a disorder of the mind around the time of the will or indeed in the 23 years preceding its making;

(b) the opinions of those who were familiar with Ms Sofianos, in particular Dr McCoy and Mr Papageorgiou;

(c) the rejection of the proposition that conduct around the time was indicative of a disturbed mind – in particular travelling to Greece for treatment, and funding it by a loan;

(d) the acceptance that there was a reasonable basis on which Ms Sofianos might prefer to leave her estate to relatives she knew and spent time with in Greece rather than to her siblings; and

2011 on when she was suffering from cancer is relevant to her testamentary capacity in 2009.

[87] Ms Sofianos was obviously a complex person who presented real challenges to the medical profession. She had a mind of her own, and did not always accept advice. Her decisions from an early age in this area were at times surprising, and undoubtedly her conduct reflected aspects of the diagnosis made by Dr Marks in

1982. However, none of this appears to me to cast any doubt on her testamentary capacity in 2009 when it was entirely rational to decide to make her first will given her changed circumstances.

[88] If wrong on the threshold issue, not surprisingly I would conclude on the balance of probabilities that Ms Sofianos had capacity. The only doubt about capacity is that no one tested it. However, the core requirements of knowing what a will is, knowing your estate and knowing to whom you are leaving it and what the consequences of that are are not in contest. So, none of that needed testing by anyone. The only capacity inquiry that is actually missing is a greater exploration of why she would leave her estate to her cousins rather than her siblings.

[89] An examination of her life answers that question. Her upbringing with her siblings was not a normal one; she spent much of her life with her aunt; they travelled together and particularly to Greece, and through various visits including trips for each of them for cancer surgery, Ms Sofianos developed a stronger relationship with that part of her family. She had a deep faith, practised in the Greek Orthodox Church, and had fluency in the Greek language. She felt strong connections to Greece, and spoke of moving there to live.

[90] Whether her choice to leave her estate in the way she did was the right one is not the issue. Rather, the point is it is not an act that of itself suggests a disordered mind that has poisoned her against siblings who indeed themselves eschew any basis for receiving her estate other than their blood ties.

[91] The case is dismissed. There were three causes of action. The first was to revoke probate because the will maker lacked testamentary capacity. That is dismissed for the reasons given. The second was a claim that the probate should have been sought in solemn form rather than common form. Its status as a stand-alone cause of action was unclear to me, and in closing it was not pursued

separately. Rather, it was described as a subset of the first cause of action. The point underlying it was that if probate had been sought in solemn form the onus would have been on the proponent. It is formally dismissed. The third cause of action, testamentary promises, was abandoned.

[92] The defendant is entitled to costs. Given that I consider the threshold was not

met, the estate should not bear the plaintiffs’ costs. Memoranda may be filed if

High Court of New Zealand Decisions

Flynn v Papageorgiou [2016] NZHC 2626 (2 November 2016)