De Rooy v Coleman

[2024] NZHC 731

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2022-488-000069

[2024] NZHC 731

IN THE MATTER OF

the Estate of Johan Frans De Rooy

BETWEEN

ROBERT JACQUES DE ROOY

Plaintiff

AND

ALAINE JANNETTE COLEMAN

Defendant

Hearing:	8 April 2024
Appearances:	D P Adams for the Plaintiff Defendant in Person
Judgment:	9 April 2024

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 9 April 2024 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

WRMK Lawyers, Whangarei

DE ROOY v COLEMAN [2024] NZHC 731 [9 April 2024]

Introduction

[1]    This case is about determining the true final wishes of Johan de Rooy (also known as John de Rooy) (the deceased). The deceased's brother Robert de Rooy seeks probate of the deceased’s will dated 19 October 2011 (the 2011 Will), pleading that the deceased’s will dated 11 June 2021 (the 2021 Will) is invalid because it was brought about by Alaine Coleman’s undue influence. Ms Coleman denies any undue influence.

[2]    This judgment determines Mr R de Rooy’s interlocutory application for orders striking  out  part  of   Ms   Coleman’s   amended   statement   of   defence   dated   10 October 2023; and requiring her to provide further and better particulars.

[3]    Ms Coleman filed a notice of opposition to the interlocutory application for orders striking out part of her amended statement of defence. However, in documents filed prior to the hearing she agreed to amend her statement of defence and purported to provide the particulars sought. These apparent concessions were confirmed at the hearing.

Background

[4]    The deceased first executed a will dated 9 March 2006 (the 2006 Will) when he and Ms Coleman were married. He appointed Ms Coleman as the sole executor of his will and bequeathed his entire estate to her. However, he provided that should Ms Coleman pre-decease him, a Christchurch solicitor would be trustee and the residue of his estate should be used to pay for the needs of his mother during her lifetime, and that any residue be given to his brothers and sisters equally.

[5]    Mr R de Rooy claims that the deceased and Ms Coleman separated in 2011. That is disputed by Ms Coleman, who claims that they continued to live together as a couple.

[6]    In any event, on 7 May 2014 the Family Court made an order dissolving the marriage of the deceased and Ms Coleman. The order was sealed on 9 June 2014.

[7]    On 19 October 2011, the deceased executed a will in which he cancelled his earlier will, appointed Mr R de Rooy as executor and trustee, and gave the balance of his estate, after the payment of debts, funeral and administration expenses, and other duties payable, to his brothers and sister in equal shares.

[8]The deceased did not execute any other wills between 2006 and 2011.

[9]    On 11 June 2021, the deceased executed a further will, revoking all previous wills, appointing Ms Coleman as trustee and executor of his will, and giving the residue of his estate to Ms Coleman should she survive him.

[10]   In this proceeding, Mr R de Rooy seeks a declaration that the 2021 Will is invalid as a result of undue influence by Ms Coleman; and an order for probate in solemn form for the 2011 Will.

Strike-out

[11]Mr R de Rooy applies for orders that:

(a)paragraph 7 of Ms Coleman’s amended  statement of defence dated  10 October 2023 is struck out; and

(b)Ms Coleman is barred from pleading any further allegation of undue influence (or other grounds of invalidity) for the deceased’s 2011 Will (without first seeking and obtaining leave from the Court).

[12]   At paragraph 7 of Ms Coleman’s amended statement of defence she puts the validity of the 2011 Will at issue, pleading:

I deny paragraph 7 and say further that the June 2021 Will is valid; but that the October 2011 Will is invalid, as it was procured by the undue influence of the Plaintiff, and in any event it was revoked by the June 2021 Will.

[13]   Mr R de Rooy submits that paragraph 7 is in substance a counterclaim; it suffers from serious procedural and substantive defects, including a lack of any material facts pleaded in support; and Ms Coleman should not be given an opportunity to repair the counterclaim, because it is futile. That is because the 2006 Will must be

read as if Ms Coleman predeceased the deceased because of s 19 of the Wills Act 2007. Therefore, even if Ms Coleman succeeds in proving undue influence in relation to the 2011 Will, she is not a beneficiary under the 2006 Will.

[14]   In a memorandum filed on 31 March 2024, Ms Coleman confirmed that she was prepared to replace paragraph 7 of the amended statement of defence to remove the allegation that the 2011 Will is invalid because it was procured by the undue influence of Mr R de Rooy.

[15]   The form of the amendment was discussed at the hearing, and Ms Coleman agreed to amend paragraph 7 as follows:

I deny paragraph 7 and say further that the June 2021 Will is valid; and that it revoked the October 2011 Will.

[16]   To be clear, the effect of the amendment to paragraph 7 of the amended statement of defence is that whether the 2011 Will is invalid due to it being procured by the undue influence of Mr R de Rooy is not an issue in this proceeding.

[17]   The second order sought by Mr R de Rooy is unnecessary, because the close of pleadings date (29 March 2024) has passed. No further amendments may be made to the pleadings without the leave of the Court.

Further and better particulars

[18]   With the removal of the allegation of undue influence  in  relation  to the 2011 Will, the particulars sought at para 1(a) to (d) of the Notice Requiring Further and Better Particulars become irrelevant. The particulars sought in relation to paras 8 and 9 of Ms Coleman’s amended statement of defence remain relevant.

[19]   In a document filed on 3 April 2024, Ms Coleman provided her response to the Notice. Mr Adams confirmed that the particulars provided in relation to paragraph 8 are considered adequate. However, he did not consider that Ms Coleman had provided adequate particulars of her pleading at paragraph 9(d) that “It was Johan who decided to use Mathews & Associates to prepare his last Will”.  Mr R de Rooy had asked   Ms Coleman to state whether it was admitted that the deceased had not previously

used Mathews & Associates; and whether it was admitted that Ms Coleman had previously used the firm.

[20]   I do not consider this to be a request for particulars. Rather, it is a request for evidence or an interrogatory.1 In any event, Ms Coleman clarified that she had instructed a legal executive at Mathews & Associates in relation to a property transaction some years before; but had not otherwise used the firm and had not ever used the solicitor whom the deceased instructed in relation to the 2021 Will.

Result

[21]   I  order  that  paragraph  7  of  the  amended  statement  of  defence  dated  10 October 2023 is amended according to paragraph 15 above.

[22]   Mr de Rooy seeks his costs associated with the application. He may file submissions of not more than three pages within three working days. Ms Coleman may file submissions in response of not more than three pages within a further three working days. A decision will be made on the papers.

Associate Judge Gardiner

1      Rule 8.34, High Court Rules 2016.