Only months later, Judith Pointon did it again, arranging for her ailing 97-year-old mother Joan Gorringe to change her will a second time so that if she died before Joan, almost the entire estate would pass to Judith’s husband.
The changes effectively cut her brother’s adult children, Ashley and Romiley Gorringe, from Joan’s will save 3 percent each, according to a judgment on the case in the Court of Appeal.
But Judith, a retired psychiatric nurse, did not count on Joan telling her grandchildren she had been “bullied” into changing the will when they visited her after their father’s funeral in 2015.
Judith would later testify she never bullied her mother, but from her rest home in Papamoa Joan “very clearly” told the siblings: “I’ve changed my will. Judy made me do it two days after your father died”, the judgment said.
“I didn’t think that I had a choice because I was scared if I didn’t do what she wanted she would stop helping me and I’m completely dependent on her now with your father gone and you [two] living overseas,” Joan told the brother and sister.
They were “speechless and in shock”.
Ashley walked out of the room and Romiley responded with “Oh”, according to affidavits.
But Joan continued: “Judy bullied me to do it. It is not what your grandfather and I wanted at all.”
She repeated the allegation to Romiley months later.
Ashley and Romiley sought legal advice and were told they were not entitled to see their grandmother’s will prior to her death, and they did not want to upset her by readdressing the issue.
Judith later claimed her mother often used the word bullied “very loosely” and doubted Joan would have been the one to raise the changed will with her grandchildren.
Joan’s statements to her grandchildren were the foundation for their claim of undue influence, and a judge later described the conversation as “critical interaction”.
In the Court of Appeal judgment issued in March, the grandchildren’s allegations were upheld and the court declared two of Joan’s wills invalid on the grounds they were procured by undue influence.
The decision, which overturns Justice Tracey Walker’s previous High Court ruling on the matter, explored how Joan’s claim led to a fallout within the family.
The changing wills
Following the sale of their sheep and cattle farm, Joan and her husband Erl Gorringe lived independently at Papamoa in the Bay of Plenty until they were in their 90s. Eventually, they both moved to a rest home.
The couple had two children – Peter and Judith. Peter Gorringe, a Hamilton lawyer, had two children, Romiley and Ashley, and Judith and her husband Christopher Pointon had three children.
After Erl died in 2011, aged 96, Joan created a will and appointed Peter and Judith joint executors.
In it, she made a specific bequest to Judith of all of her clothing, jewellery, and furniture with the balance of her estate to be equally divided between Judith and Peter, once her debts and funeral expenses were settled.
A gift-over clause meant that if Peter or Judith died before their mother, their share of Joan’s estate would pass to their respective children.
In November 2015, Peter died unexpectedly of an aneurysm. According to Joan’s 2011 will, Romiley and Ashley were set to inherit Peter’s half of Joan’s estate.
But only days after Peter’s death, Judith told Joan that she and her husband Christopher were reviewing and updating their wills.
Judith told the court that at this time, Joan said she also wanted to update her will.
“I did discuss things with Mum at her instigation, but at no time did I bully her into changing her will. What she decided was entirely up to her and she was very capable of doing what she wanted,” Judith told the court.
Judith phoned Fenton McFadden legal services in Te Puke to make an appointment for her and Christopher.
She also asked Sue Henderson, a solicitor from Fenton McFadden who had acted for Joan and Erl since 2009, to set up an appointment with Joan.
The following day, Andrea Hipkiss, a legal assistant for the firm, met with Joan alone.
Two days later, Hipkiss, who is not a solicitor nor a qualified legal executive, took a new will to Joan and she signed it in the presence of a third person.
Hipkiss did not conduct any specific capacity tests and told the court she was not aware of any that are recommended.
She described Joan as lucid and clear on the instructions she was giving.
Peter’s funeral took place the next day, the same day Judith says she learned of the changes her mother had made to the will.
The new will altered the division of Joan’s estate, worth about $1.5m made up of cash and investments, leaving $50,000 to each of her five grandchildren and the rest, about $1.25m, to Judith.
In March 2016, four months later, Joan phoned Sue Henderson and had a “brief but quite serious” conversation about changing her will again.
This time, she wanted it to state that in the event Judith died before Joan, Judith’s share would pass to Christopher.
Henderson advised Joan it was an “unusual” move, as funds usually went straight to the grandchildren rather than a partner.
Joan told her that both Judith and Christopher had helped her a lot over the years, Henderson said.
Judith denied phoning Fenton McFadden on Joan’s behalf to arrange the change but acknowledged discussing with her mother concerns about what would happen to Christopher if she died before Joan.
In the High Court Judith described the couple’s living situation as modest.
She and Christopher, a retired secondary school teacher, had a reverse mortgage – money borrowed against the value of their house – and did not have large savings.
“Judith deposed that the couple are relying on Joan’s estate to see them through their old age,” that judgment said.
The Court of Appeal heard that before the 2016 will was signed, Judith phoned Fenton McFadden to ask about her mother’s instructions – specifically about the shares and what would happen to the estate should she pass away before her mother.
The court said the inquiry served to “underscore Judith’s active interest in the outcome”.
Later, Judith picked up the latest will, delivered it to her mother, watched her sign it, and then returned it to the lawyers.
The High Court said the lack of adequate oversight or supervision from a qualified lawyer in the process of Joan’s will-making was regrettable.
It criticised aspects of Fenton McFadden’s involvement, stating in the context of Joan’s case, its service had fallen “well short” of a “gold standard” approach.
Their interactions with Joan were “notably slim”. There was insufficient probing of Joan’s intentions, and scant noting of the instructions, the rationale for Joan’s instructions, and the execution process.
The Court of Appeal “unreservedly” endorsed the High Court’s criticisms of the process for making the 2016 will.
Joan died in October 2019, aged 101. Following her death, probate was granted in respect of the 2016 will to Joan’s executors, Judith and solicitor Susan Henderson.
Ashley and Romiley turned to the High Court to challenge Joan’s testamentary capacity, alleging undue influence by Judith concerning the 2015 and 2016 wills, and asserting a breach of fiduciary obligations by Joan’s executors.
They believed the changes made to the wills “inexplicably favoured” the Pointon side of the family.
Judith and her family would receive 93.75 percent of Joan’s estate and Ashley and Romiley would receive 6.25 percent, they submitted.
But despite the High Court accepting the siblings’ account of what Joan said to them about being bullied, all of the claims were dismissed.
The Court of Appeal’s findings
In the latest proceedings, Ashley and Romiley appealed only the decision on the claim of undue influence.
The Court of Appeal had doubts Joan even read the 2015 and 2016 wills before signing them, with one grandson’s name glaringly misspelt.
Justices Brendan Brown, Jillian Mallon and Mathew Downs did not believe Judith’s evidence was entirely accurate about the way Joan’s instruction to Fenton McFadden came about.
The timing of the changes to the wills, Joan’s age and physical state, her increased reliance on Judith, the significance of the changes from her previous wills without the benefit of independent advice, and Judith’s involvement in relation to the wills were all factors considered by the court.
It concluded Joan’s statements to her grandchildren were volunteered, could not be dismissed as “offhand”, and that the High Court erred in finding there was no undue influence in respect of the 2015 and 2016 wills.
“Cumulatively, this evidence satisfies us that the circumstances raise an inference in favour of the appellants’ allegation of undue influence on Judith’s part which is more probable than not.”
Orders were made to declare the 2015 and 2016 wills invalid and to grant probate of the 2011 will. Independent executors and trustees of Joan’s estate were also appointed.
The NZ Herald has approached Judith, Ashley, and Romiley, as well as Henderson and Fenton McFadden for comment.
Romiley and Ashley declined an interview through their lawyer while they awaited a decision on costs.
What the experts say
Senior barrister Vanessa Bruton, KC, said claims of undue influence – meaning it was not the exercise of the will-maker’s free will – were reasonably common but a lawyer needed a high standard of proof before filing such a claim.
“There must be evidence, which is often elusive.”
Bruton, who specialises in resolving trust and estate disputes, said lack of testamentary capacity claims were often issued at the same time as an undue influence claim with capacity issues decided first.
If the decision-maker did not have capacity to make the will then it would be invalid and the undue influence claims would not proceed.
Bruton said proving incapacity was hard because the plaintiff needed diary notes taken at the time of the event and expert medical evidence.
She said such claims were “enormously expensive” and could cost hundreds of thousands of dollars if it went to trial.
Only about 10 percent of her cases went to trial, Bruton said, because they were “high risk, expensive, and the outcome can be uncertain and subject to one or more appeals”.
At trial it was an “all or nothing” result – the will is either completely valid or completely invalid but settled out of court and all claimants to the estate could get something, she said.
Public Trust chief executive Glenys Talivai said if it is suspected someone had been coerced into changing their will, independent legal advice should be sought, or the lawyer or trustee organisation that made the will should be alerted.
“The lawyer or trustee organisation can then talk to the person who made the will to re-confirm or discuss their instructions and raise any concerns they may have.”
If the person has capacity, they have the option to make a new will, she said.
But if the person is dead, concerns should be discussed with the executor of the estate and independent legal advice sought.
Talivai said a person making a will needs a proper understanding of what a will is, its consequences, the nature and extent of their assets and liabilities, and their relationships, and be free from any abnormal state of mind.
Trustee companies and lawyers who deal with wills look for signs the will-maker may be under duress and limit the opportunity for undue influence.
This could mean family members or friends who are at the meeting are asked to step out of the room while they confirm the person’s wishes.
The professional will also ensure the person understands the value of their assets and ask questions about whether anyone else has told them they must make the will a certain way.
– By Tara Shaskey
Open Justice multimedia journalist, Taranaki