Costelloe v Costelloe HC Auckland CIV 2007-404-922

[2007] NZHC 1983

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-922

IN THE MATTER OF        an application for probate in solemn form

AND IN THE MATTER OFthe Estate of GERRARD PATRICK COSTELLOE late of Auckland, Deceased

BETWEEN  WILLIAM JOSEPH COSTELLOE Plaintiff

AND  PAUL THOMAS COSTELLOE AND MARIE NORA DOELMAN

First Defendants

AND  CARMEL MAE MILLER Second Defendant

AND  CATHERINE ANNE COLEMAN Third Defendant

AND  ANTHONY RAYMOND COSTELLOE Fourth Defendant

AND  NEW ZEALAND EASY BOOK TOURS LTD AND SUSANNE BEVERLY SHEAT

Fifth Defendants

AND  ROBERT GLENN HARRIS Sixth Defendant

Hearing:        10 August 2007

Appearances:   David O'Neill for Plaintiff

Carolyn Boell for Fifth Defendants

Judgment:       10 August 2007

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

3.00 p.m. on 10 August 2007

SOLICITORS

Cooney Law (Cambridge) for Plaintiff
Short & Partners (Auckland) for Fifth Defendants

COUNSEL DM O’Neill

COSTELLOE V COSTELLOE AND DOELMAN AND ORS HC AK CIV 2007-404-922  10 August 2007

Introduction

[1]      This is an uncontested application by William Costelloe for orders that (1) the last will and testament of his son, Gerrard Patrick Costelloe (Gerrard), is invalid; (2) probate be granted in solemn form; (3) William be granted letters of administration; and (4) costs.

[2]      It is a sad case.

Facts

[3]      Gerrard died at the Panmure Railway Station in Auckland on 16 June 2006. He was then 46 years of age.  He was run over by a train.  It is unknown whether he fell or was pushed.  The coroner found that Gerrard died of neck injuries.

[4]      Gerrard was not married and did not have a de facto partner or any children. He had five siblings; three live in New Zealand, one in Australia, and the other in the United States of America.

[5]      Following  Gerrard’s  death,  a  document  described  as  his  last  will  and testament emerged.  It was dated 1 February 2006 which provided in essence that: (1) Gerrard’s brother and sister, Paul Costelloe and Marie Doelman, were appointed as  executors  and  administrators  of  the  will;  (2)  Robert  Harris  was  to  receive Gerrard’s shares in Boston Imports Ltd together with the value of a life insurance policy of $100,000; (3) another of Gerrard’s sisters, Carmel Miller, was to receive

$33,000; and (4) following payment of debts and funeral expenses, the residue of the estate was to be left to William Costelloe.

[6]      A draft interim statement of assets and liabilities in Gerrard’s estate was prepared.    It  shows  that  he  had  assets  of  $620,079.53  including  a  commercial property owned  by Boston in Matamata valued  in July 2005  at  $189,000.   His liabilities were $489,968.  Principal among them were a debt to William of $156,000 and a liability under a personal guarantee for Boston’s mortgage indebtedness on the Matamata property of $160,712.  The net residue appears to be about $130,000.

[7]      However, Mr David O’Neill who  appears for William advises today that Boston’s principal asset, a commercial property at Matamata, was sold by the mortgagee in March 2007 for $208,000.  The purchaser was Mr Harris, who as noted is the principal beneficiary under Gerrard’s will.  He has since on-sold the property for an unknown figure.  Even allowing for the mortgagee’s debt of about $160,000 and for costs of sale, there should be a net balance owing to Gerrard Costelloe’s estate.  Further inquiries will be necessary to resolve this question.

[8]      The  will  was  allegedly  witnessed  by  Donald  Saunders  and  Anne-Marie

Forsyth.  The attestation clause provides:

In witness of this Will I have hereunto set my hand.

The date being 1st day in the month of February in the year 2006. Testator’s signature: (G Costelloe)

Signed by the said Testator,  gerrard patrick costelloe as  his  Will in the presence of us both present at the same time who in his presence and in the presence of each other have hereunto set out names as witnesses:

Witness 1 …

Signature:   (D A Saunders)

Name and address: Donald Arthur Saunders

Cambridge

Occupation:        Tour Operator

Witness 2 …

Signature:   (A Forsyth)

Name and address: 28 Freya Place

Torbay

Occupation:        Consultant

[9]      Both Mr Saunders and Ms Forsyth have sworn affidavits in this proceeding. Mr Saunders, who is a travel manager in Cambridge and was also a director with Gerrard of New Zealand Easy Book Tours Ltd (NZEBT), denies that the signature is his.  He also denies being present with Gerrard and Ms Forsyth when the will was signed and says that the printed name and address under his purported signature is not  in  his  handwriting.    His  description  as  a  tour  operator  is  also  incorrect. Mr Saunders says also that Gerrard ‘had on previous occasions forged my signature on various documents relating to our business’.

[10]     Ms Forsyth acknowledges her signature.  She worked as a travel consultant for NZEBT.   She manned the Auckland office.   She knew Messrs Costelloe and Saunders only in her working capacity.

[11]     She recalls that Gerrard came into the office 11 times in 2006.  She says this:

I did sign things from time to time for him.   He would often thrust things under my nose for me to witness his signature and I would not be allowed to read the document.   He would go so far as to cover up the document with another piece of paper and tell me where to sign.   From memory, I would have signed five or six things for Gerrard over the two years prior to his death.

…

The signature on the document at the last page is mine.  The hand writing is also mine.  However, I have no recollection of signing anything described as

‘Last Will and Testament’.   This would probably have been one of those times when Gerrard covered up a document so I could not see what I was actually signing.  I was staggered to hear that I had supposedly witnessed a

Will.

I never saw Gerrard sign this document.   Furthermore, I never signed any document when Donald Arthur Saunders was either in the room or without Gerrard.   Donald was absent from the office a similar amount of time as Gerrard.

Because Gerrard had come in so infrequently throughout 2006, prior to his death, I would have remembered witnessing a Will if I had been asked to do so because it would have involved namely myself and Gerrard signing the document with another person.  Nothing like that ever happened.

[12]     In September 2006 NZEBT and one of its directors, Susanne Sheat, lodged a caveat  against  an application  for  grant  of probate.    However,  they support  this application.  The caveat was filed only to protect debts allegedly owed by the estate to the company.  NZEBT’s counsel, Ms Carolyn Boell, advises that its claim is about

$300,000.    Mr O’Neill advises  that  Gerrard  was  a  shareholder  in  the  company through intermediary entities.  Sale of his shareholding is bound to have an offsetting effect on the debt, which I assume is on current account.

Service

[13]     William through his solicitor has applied to this Court for directions as to persons to be named as defendants: R639.   He sought an order that Gerrard’s five

siblings be named together with New Zealand Easy Book Tours Ltd and Ms Sheat and Mr Harris.  Orders were made accordingly by Associate Judge Faire on 1 March

2007.

[14]     All  defendants  were  served  between  28 March  2007  and  22 May  2007. Service was effected upon Mr Harris in an unusual location.   Only NZEBT and Ms Sheat have taken any steps.  A statement of defence filed by them is in formal terms only.  Importantly they admit the invalidity of the will.

[15]     William has deposed to steps taken by himself and Cooney Law to search for any other will made  by Gerrard.   They placed  an advertisement  in ‘Law  Talk’ magazine but there was no response.   William has also made inquiries about the existence of any child of Gerrard who might be able to claim an interest in the estate: s 5A(2) Status of Children Act 1969.  He has asked family members, looked through his son’s papers, and caused a search to be made of the Registrar-General.   These steps have not revealed any additional information.

[16]     The executors and administrators named under the will, Gerrard’s brother and sister, do not wish to propound it or remain in office.   They are aware of their father’s intention to apply for letters of administration.

[17]     William has deposed that he will administer his son’s estate in accordance with the law.

Legal Principles

[18]     I have been assisted by a careful memorandum of submissions tendered by

Mr O’Neill.

[19]     The legal principles are well settled.   Where there is uncertainty about the validity of a will, the applicant must apply to this Court in solemn form: R633 High Court Rules.  It is made by way of a statement of claim as in an ordinary proceeding. The applicant must name as defendants any caveator and any person who may be

entitled to a grant of probate or letters of administration if the application fails: R639.  William has followed that course here.

[20]     The statutory requirements for a will to be valid are that: (1) it must be in writing; (2) be signed at the foot or at the end by the testator; (3) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (4) such witnesses shall attest and subscribe the will in the testator’s presence: s 9 Wills Act 1837 (UK) (which is in force in New Zealand: s 3(1) Imperial Laws Application Act 1988).

[21]     The   uncontested   evidence   of  Mr Sanders   and   Ms Forsyth   rebuts   the presumption  of  due  execution:  Re  Young  (Deceased)  [1969] NZLR 454; the document produced as a will fails to satisfy the last two of the four statutory requirements, and is invalid.

[22]     Accordingly,   given   my   satisfaction   that   no   other   valid   testamentary documents exist, Gerrard has died intestate.   The right to apply for letters of administration in that situation is determined in accordance with settled priority: R665(2).  It is unnecessary to recite the list of ranking persons.  I am satisfied that William is first  in order of ranking:  R665(2)  and  (3)(c); and  that  he should  be granted letters of administration.  In this respect, by virtue of Gerrard’s indebtedness to him, I take into account William’s rights as a person beneficially interested in Gerrard’s estate: s 6(1) Administration Act 1969.

Decision

[23]     I grant relief in the following manner:

(1)      I declare that the last will and testament of Gerrard Patrick Costelloe dated 1 February 2006 is invalid;

(2)       I   order   that   William   Joseph   Costelloe    be   granted   letters   of administration in Gerrard’s estate;

(3)      I order that costs of and incidental to this application, including the costs and disbursements incurred by William’s solicitors and counsel on a reasonable and actual basis, be paid from Gerrard’s estate and be accorded priority as a first ranking charge against the assets of the

estate subject to any statutory provisions.

Rhys Harrison J