Ball v Saint - [2023] NZHC 814

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1876

[2023] NZHC 814

IN THE MATTER OF an application for probate in solemn form under Part 18 of the High Court Rules 2016

IN THE MATTER OF

of JOHN ELLIOTT LAWFORD, of

Auckland, Retired, Deceased

BETWEEN

DENISE JOY BALL, TIMOTHY JOHN LEWIS and ROBERT McDOUGALL FERRIER

Plaintiffs

AND

BELINDA BEVERLEY GWENDOLEN SAINT

First Defendant

Continued over page

Hearing: 13 February 2023

Appearances:

S A Grant, Y Mortimer-Wang and J Kim for the plaintiffs V Bruton KC and A McDonald for the first defendant

D Chambers KC, I Hikaka and J L Beverwijk for the third defendant
S R Morris for Interested Party

Judgment:

18 April 2023

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 18 April 2023 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………
Registrar/Deputy Registrar

Solicitors/Counsel:
AJO Legal, Auckland; Hesketh Henry, Auckland; Glaister Ennor, Auckland; Lee Salmon Long, Auckland; Gregory Simon Law, Auckland; Morris, Auckland; S Grant, Auckland; V Bruton KC, Auckland; A McDonald, Auckland; D Chambers KC, Auckland

BALL & ORS v SAINT & ORS [2023] NZHC 814 [18 April 2023]

JACK LEE PORUS and DAVID LUNNY
Second Defendants

MYLES CURLING LAWFORD
Third Defendant

[1] When John Elliot Lawford died aged 86 on 12 June 2020 his most recently executed will was dated 18 April 2017 (2017 Will). Mr Lawford’s penultimate will was dated 6 November 2013 (2013 Will).

[2] The plaintiffs are the executors of the 2017 Will. They apply for a grant of probate in solemn form of the 2017 Will. The first defendant opposed and counterclaimed for an order that probate of the 2013 Will be granted to the second defendants who are the executors of that will. The second defendants abide. The third defendant is the residuary beneficiary under both wills. He supports the plaintiffs’ application.

[3] The trial took place before me between 30 May 2022 and 8 June 2022 but was adjourned part heard. Shortly before it was due to recommence for a further 10 days on 13 February 2023 the parties reached a compromise at a mediation with the Hon Rhys Harrison KC. The parties sought various orders by consent, including that the plaintiffs be granted probate of the 2017 Will.

[4] Notwithstanding the agreement of the parties, an issue arises as to whether the Court can and should grant probate in solemn form; or whether it should exercise its discretion to grant probate in common form. The parties (and counsel for an interested party, Mr Maurangi) filed memoranda and I convened a short hearing to deal with this issue.

[5] For the reasons set out below I am satisfied it is appropriate to grant probate of the 2017 Will in solemn form. The first defendant no longer opposes probate being granted in solemn form (although as I will explain that is not determinative). I am also satisfied it is appropriate to make…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ball v Saint

Details

AGLC: Ball v Saint [2023] NZHC 814
Case: [2023] NZHC 814
Decision Date: 18 April 2023

CaseChat Overview and Summary

In the case of Ball v Saint, Denise Joy Ball, Timothy John Lewis, and Robert McDougall Ferrier sought a grant of probate in solemn form for the 2017 will of John Elliott Lawford, dated 18 April 2017. Belinda Beverley Gwendolen Saint opposed the grant of probate in solemn form and counterclaimed for an order that probate of the 2013 will be granted to the second defendants who are the executors of that will. The third defendant, Myles Curling Lawford, supported the plaintiffs’ application. The main legal issues were whether the court could and should grant probate in solemn form or whether it should exercise its discretion to grant probate in common form, and whether the 2017 will was properly executed with testamentary capacity and free from undue influence.

The court found that the plaintiffs had the onus of establishing that Mr Lawford had testamentary capacity when he executed the 2017 will. The evidence presented, including expert evidence from Dr Jane Casey and Professor Pesiah, satisfied the court on the balance of probabilities that Mr Lawford had testamentary capacity when he executed the 2017 will. The court also found that there was insufficient evidence to establish that Mr Lawford was unduly influenced when he executed the 2017 will. Therefore, the court was satisfied it is appropriate to grant the plaintiffs probate in solemn form of the 2017 will. The court also made orders in terms of paragraphs numbered 1-8 of the draft orders submitted by counsel for the plaintiffs dated 8 February 2023, with the exception of the last sentence of paragraph 2.

In conclusion, the court granted the plaintiffs' application for probate in solemn form of the will of John Elliott Lawford dated 18 April 2017. The court found that the plaintiffs had satisfied their onus of proving testamentary capacity and there was insufficient evidence of undue influence. The court also made orders in line with the consent orders sought by the parties, with a few modifications.

Orders