Estate of Holah [2018] NZHC 1920 (31 July 2018)

Last Updated: 13 August 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-470-000066 [2018] NZHC 1920

UNDER	the Administration Act 1969
IN THE MATTER	of the estate of ROWAN MONTIQUE HOLAH, deceased
BETWEEN	GARTH ROBERT MATHIESON and BRONWYN MAY PORTER Plaintiff

Hearing:	On the papers
Judgment:	31 July 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 31 July 2018 at 4.00 pm

pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar Date..........................

ESTATE OF HOLAH [2018] NZHC 1920 [31 July 2018]

Introduction

[1] Rowan Holah died at Katikati on 3 December 2017 leaving a modest estate; the only significant asset is a half-share in a property at 21B Carisbrook Street, Katikati, which he owned as a tenant in common with his wife, Beverley Holah. Mr Holah had executed a will in 2012 and another one in 2015. The executors (who were the same under both wills) have applied for:

(a) Leave to bring proceeding by way of an originating application and to dispense with service;

(b) Probate in solemn form of the 2015 will; or

(c) Alternatively, probate in solemn form of the 2012 will.¹

[2] It is clear from the information provided that the only person affected by the proposed application is Mrs Holah. It is an appropriate case for an originating application and for the dispensation of service on any other person and I make orders accordingly.

Background to the application for probate in solemn form

[3] Both wills were in extremely similar terms. The only difference of any significance was that provision was made in the 2015 will for a substitute executor, in the event that one of the named executors was unavailable. Otherwise, both wills provided that, following the payment of debts and expenses the residue of the estate was to go to Mrs Holah that if she pre-deceased him then the residue would go in equal shares to Mr Holah’s step-children.

[4] Following Mr Holah’s death, the executors applied for a grant of probate in common form of the 2015 will. The Registrar expressed concerns about the validity of the 2015 will because of the cause of death recorded on the death certificate, “end stage Alzheimer’s disease years”.

1. Initially, only the 2015 will was produced. Subsequently, the plaintiffs filed a joint affirmation producing the original 2012 will.

[5] The executors provided two further affidavits on the subject of Mr Holah’s testamentary capacity in 2015. The first was from one of the executors exhibiting a letter from Dr Kevin Fricker which recorded that:

Rowan had a MOOCA test done in March 2015 and scored a lowly 13/30. This indicates that he had a well established dementia and most likely never had full mental competency at the time of signing the will. He never had formal schooling as he was badly affected by polio as a child and spent most of his childhood in hospital. This would have affected his MOCC and might have given him the benefit of 2 – 3 points thus he would have moved up to 16/30 or 13/27 which is still marked dementia.²

[6] The second was from Kimberley Jordan, the instructing solicitor who attended on Mr Holah, took instructions for the 2015 will and witnessed the execution of it. Ms Jordan said that:

... The deceased seemed to understand [the will] thoroughly and seemed to have full knowledge of its contents.

[7] The Registrar did not consider that the further evidence resolved the concerns over Mr Holah’s testamentary capacity. He indicated that an application for probate in solemn form would be appropriate.

The applications

[8] The executors still maintain that the 2015 will is valid and have filed further affidavits, one by Mrs Holah and the other by an executor, Bronwyn Porter. They are in substantially the same terms and to the effect that Mr Holah did understand the terms of the 2015 will and that his poor score when tested by Dr Fricker may have been attributable to his physical disability which was the legacy of childhood polio. I note that Dr Fricker referred to this and considered the possible effect of it on the score, coming to the same conclusion regarding Mr Holah’s testamentary capacity.

[9] In the alternative, against the possibility that the Court is not satisfied as to the validity of the 2015 will, the executors seek probate in solemn form of the 2012 will.

[10] The approach to be taken in circumstances such as this is that described in Re White:³

2. Presumably the reference to “MOOCA” is intended to be to the test commonly referred to as MoCA test, a common test used as an initial identifier of dementia.

³ Re White [1950] NZGazLawRp 66; [1951] NZLR 393; Bishop v O’Dea (1999) NZCA 239; (1999) 18 FRNZ 492 at 493.

If a will rational on the face of it is shown to have been executed and attested in the normal manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But, if there are circumstances in evidence which counter- balance that presumption, the decree of the Court must be against its validity unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it.

[11] Dr Fricker’s letter casts serious doubt over Mr Holah’s testamentary capacity in March 2015. Notwithstanding the belief of the lawyer who took the instructions and witnessed the execution of that will, the observations of the doctor coupled with the subsequent fact of Mr Holah’s death from Alzheimer’s of some years’ standing means that I could not be satisfied as to his testamentary capacity when he executed the 2015 will. That concern is not assuaged by the further affidavits of Mrs Holah and Ms Porter. The application for probate in solemn form of the 2015 will is refused.

[12] I accept, however, that there is no evidence that would displace the presumption that the apparently properly executed 2012 will was made by Mr Holah with full capacity. It is said to be very similar to previous wills, there is no obvious defect and no evidence that would cause doubt as to its validity.

[13] I accordingly make orders that:

(a) The executors have leave to bring this proceeding by way of originating application and service on any person is dispensed with;

(b) There is a grant of probate in solemn form of the last will of Rowan Montique Holah dated 3 May 2012.




P Courtney J