IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-001988
[2024] NZHC 3877
IN THE MATTER OF the Estate of Olwyn Betty Jean Moulden BETWEEN
JANENE BARBARA COCHRANE and TERENCE RONALD MOULDEN
Applicants
AND
WARREN JOSEPH MOULDEN
First Respondent
SINCLAIR DOWSETT MEGGITT
Second RespondentASB BANK LIMITED
Third Respondent
BANK OF NEW ZEALAND
Fourth RespondentTAB NEW ZEALAND
Fifth Respondent
Hearing: 28 November 2024 Appearances:
L Lindsay and L McNeely for the Applicants D Collecutt for the First Respondent
Judgment:
17 December 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 17 December 2024 at 4 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
COCHRANE & Anor v MOULDEN & Ors [2024] NZHC 3877 [17 December 2024]
[1] Olwyn Betty Jean Moulden (Betty) died at the age of 93 on 24 September 2023. She is survived by three adult children: the applicants Janene Cochrane (Janene) and Terence Moulden (Terry), and the first respondent, Warren Moulden (Warren).1 Warren is the executor and sole named beneficiary of Betty’s estate.
[2] Betty executed wills in 1994, 2003 and 2018. The 1994 Will was executed when her husband, Ron, was alive.2 Betty and Ron executed mirror wills in which their three children were to share equally in the estate of the surviving parent and appointing Terry as executor and trustee, with Janene and Warren to jointly hold those roles if Terry died before his parents. Ron died in 1996.
[3] Betty’s 2003 Will materially altered matters. It removed Janene and Terry as residuary beneficiaries, leaving only specific gifts of jewellery to Janene and her granddaughters and appointing Warren as the sole executor and trustee. That is, the remainder of the estate was left entirely to Warren. Janene and Terry were unaware of this fundamental change until after their mother’s death.
[4] That position as to the residue was effectively replicated in Betty’s 2018 Will which also removed the provision of specific gifts of jewellery to Janene and her children. If Warren died before Betty, Terry alone would receive the remainder in contrast to the 2003 Will where both Janene and Terry would receive an equal share. A clause was included in the 2018 Will in the following terms:
I have not provided for my daughter JANENE BARBARA COCHRANE as I have no relationship with her and have not had one for the past 20 to 30 years. WARREN has looked after me all his life and TERENCE has always been on hand to help me with day-to-day matters concerning the home or just my general wellbeing.
[5] This came as a shock to Janene. She deposes that she has had a close and loving relationship with Betty all of her life and the statement in the will is untrue.3 It also appears to be at odds with the provisions in the 2003 Will which Betty executed only 15 years earlier.
1 To avoid confusion, I intend to refer to the…
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- Cochrane v Moulden [2024] NZHC 3877
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- [2024] NZHC 3877
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CaseChat Overview and Summary
The court had to decide whether the applicants were entitled to pre-commencement discovery under Rule 8.20 of the High Court Rules 2016. This required the court to consider whether the applicants had a real probability of a claim against Warren and whether it was impossible or impracticable for them to formulate the claim without the documents sought. The court also had to determine whether certain documents relating to Warren’s financial affairs should be disclosed on a confidential basis only to the applicants’ counsel.
The court found that the applicants had established the first limb of the test for pre-commencement discovery, as there was a real probability of claims against Warren for undue influence, breach of fiduciary duties, and unconscionability. The court rejected Warren’s argument that certain claims were time-barred, noting that claims of undue influence and breach of fiduciary duties were not subject to the same limitation periods as money claims. The court also found that while Warren’s privacy concerns were valid, they did not outweigh the need for the applicants to review the documents in order to formulate their claims. The court ordered that certain documents be disclosed, subject to confidentiality protections where appropriate.
The final orders of the court required Warren to provide certain categories of documents by a specified date, with some documents to be disclosed on a confidential basis to the applicants’ counsel only. The court also ordered the other respondents to provide relevant documents, with certain documents to be disclosed on a confidential basis where appropriate. The applicants were to pay the costs of the third, fourth, and fifth respondents, while the first respondent’s costs were to be paid by the Estate of Olwyn Betty Jean Moulden. The parties were granted leave to apply to resolve any questions of the terms of the confidentiality undertaking. The court ordered that the first respondent pay 70 per cent of the applicants’ costs, reflecting the applicants’ partial success in the application.
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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