Boswell v Korving - [2021] NZHC 3373

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001876

[2021] NZHC 3368

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

IN THE MATTER

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

Hearing: 1 December 2021

Appearances:

S A Grant for the Plaintiffs

A E McDonald for the First Defendant
D A Chambers QC and I J Beverwijk for the Third Defendant No appearance for the Second Defendant

Judgment:

9 December 2021

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 9 December 2021 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules

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

Solicitors/Counsel:
MacDonald Lewis Law, Auckland Paladin Chambers, Auckland Hesketh Henry, Auckland
Akarana Chambers, Auckland Glaister Ennor, Auckland

BALL & ORS v SAINT & ORS [2021] NZHC 3368 [9 December 2021]

AND JACK LEE PORUS and DAVID LUNNY
Second Defendant

AND MYLES CURLING LAWFORD
Third Defendant

Introduction and background

[1] On 27 October 2021 the plaintiffs applied for orders granting them probate in solemn form in respect of a will dated 18 April 2017 that was, on its face, properly executed by John Elliot Lawford (Mr Lawford) (2017 Will). Mr Lawford died on 12 June 2020.

[2] The first defendant (Ms Saint) and Mr Lawford married on 23 January 2010. They remained legally married at the time of Mr Lawford’s death; although by then the third-named plaintiff, Mr Ferrier, in his capacity as Mr Lawford’s attorney, had arranged for an application to be made to dissolve the marriage. That application was on foot but had not been determined when Mr Lawford died.

[3] The first defendant has lodged a caveat against the grant of probate to the plaintiffs in respect of the 2017 Will. She is defending the plaintiff’s claim and has filed a counterclaim. Her most recent pleading is a third amended statement of defence and counterclaim dated 14 October 2021 (3ASOD). The 3ASOD is 315 paragraphs long, but it contains only two affirmative defences and a one-sentence counterclaim. In summary, Ms Saint alleges that:

(a)Mr Lawford lacked testamentary capacity when he executed the 2017 Will;

(b)Mr Ferrier unduly influenced Mr Lawford to make the 2017 Will; and

(c)a will dated 6 November 2013 (2013 Will) is Mr Lawford’s last valid will.

[4] Under the 2013 will the first defendant (together with her adult son Mr Caughey) were to receive Mr Lawford’s valuable property in Mission Bay, Auckland (Mission Bay Property). The first defendant is not a beneficiary under the 2017 Will. Conversely, the 2017 Will provides for Mr Ferrier to receive a valuable painting, but he was not a beneficiary under the 2013 Will.

[5]These matters are set down for a seven-day trial in May 2022.

Other parties

[6]The second defendants are the named executors under the 2013…

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 Boswell v Korving

Details

AGLC: Boswell v Korving [2021] NZHC 3368
Case: [2021] NZHC 3373
Decision Date: 9 December 2021

CaseChat Overview and Summary

In Boswell v Korving, the plaintiffs applied for orders granting them probate in solemn form in respect of a will dated 18 April 2017, which was properly executed by John Elliot Lawford. The first defendant, Belinda Beverley Gwendolen Saint, has lodged a caveat against the grant of probate to the plaintiffs and is defending the plaintiff’s claim. The main legal issues the court had to decide were whether the categories of documents sought in the first defendant's application for particular discovery were sufficiently relevant to justify the orders sought, and whether the orders were proportionate. The court considered that while circumstantial evidence may prove undue influence, the application still needed to be determined in accordance with well-established principles governing discovery, especially relevance and proportionality. The court found that while the first defendant's allegations were serious, there was insufficient evidence to support them. The court ultimately dismissed the first defendant’s application for particular discovery, ordering that the first defendant file and serve an amended statement of defence and counterclaim. The court also ordered that the categories of discovery referred to in an earlier order be expanded to include certain categories described in the joint memorandum filed by the parties. Any supplementary affidavit of documents should be in Form G 37 and specify the steps taken to locate documents. The first defendant was ordered to pay the plaintiffs' costs in respect of both applications.

Orders