Dodssuweit v Olivier - [2018] NZHC 2394

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-470-000114

[2018] NZHC 2394

IN THE MATTER OF the estate of KARIN MARGITE DODSSUWEIT, deceased

BETWEEN

STEPHAN DODSSUWEIT

First Plaintiff

CORNELIA DODSSUWEIT
Second Plaintiff

AND

KEVIN NORMAN OLIVIER

First Defendant

BETTINA DODSSUWEIT
Second Defendant

K M DOD TRUSTEE LIMITED

Third Defendant

Hearing: 22 August 2018

Appearances:

S Bryers for Plaintiffs

G Brittain for Defendants

Judgment:

12 September 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 12 September 2018 at 11.30 am
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………

DODSSUWEIT v OLIVIER & ORS [2018] NZHC 2394 [12 September 2018]

Introduction

[1] This proceeding concerns a will made on 19 May 2017 and various inter vivos transactions entered into by the late Karin Dodssuweit around that time, a few weeks before her death on 2 June 2017. Broadly, the effect of the inter vivos transactions was to benefit one of her children, Bettina Dodssuweit, to a much greater extent than her other children, Stephan Dodssuweit and Cornelia Dodssuweit.1 The plaintiffs in this proceeding are Stephan and Cornelia. They seek to set aside the inter vivos transactions and have the 19 May will declared invalid. The defendants are Kevin Olivier, the lawyer who acted on the transactions and prepared the will, Bettina herself and K M Dod Trustee Ltd, a trustee of the trust settled by Mrs Dodssuweit on 19 May 2017.

[2] Bettina has applied to vary a freezing order over funds currently held in trust in the name of K M Dod Trustee Ltd, so that she can access $20,000 to engage the services of an expert to address the issue of Mrs Dodssuweit’s mental capacity at the time the contested transactions were entered into and the will made. The plaintiffs acknowledge that the Court has jurisdiction to vary the freezing order. But they do not accept that Bettina’s application can succeed because the funds that are frozen are the subject of a proprietary claim.

[3] Bettina also sought an order requiring Stephan and Cornelia to provide further discovery of the file held by Mrs Dodssuweit’s previous solicitor in relation to services provided to Mrs Dodssuweit from 1 April 2017 and, specifically, in relation to a previous will executed by her on 2 May 2017. By consent, I made an order requiring Mr Olivier and K M Dod Trustee Ltd, by 28 September 2018, to file an affidavit of any documents not already provided during the informal discovery process that the parties have undertaken.

Background

[4] It is evident that there were tensions between Mrs Dodssuweit and her three adult children.2 In an affidavit filed in the proceeding, Cornelia described

1 For convenience, I refer to Mrs Dodssuweit’s children by their first names only.
2 A fourth child died in 1996.

Mrs Dodssuweit as eccentric and having quite a close relationship with Bettina, not with Cornelia and, in any event,…

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 Dodssuweit v Olivier

Details

AGLC: Dodssuweit v Olivier [2018] NZHC 2394
Case: [2018] NZHC 2394
Decision Date: 12 September 2018

CaseChat Overview and Summary

The case of Dodssuweit v Olivier and others involves a dispute over the validity of a will and various inter vivos transactions executed by Karin Dodssuweit, who passed away in June 2017. The plaintiffs, Stephan and Cornelia Dodssuweit, challenge the validity of the will and transactions, which they claim unfairly benefit Bettina Dodssuweit, another child of Karin. The defendants include Kevin Olivier, Bettina herself, and K M Dod Trustee Ltd, the trustee of a trust established by Karin. Bettina has applied to vary a freezing order to access funds for expert witness assistance to address issues of Karin's mental capacity and undue influence. The plaintiffs argue that the freezing order should not be varied because the funds are subject to a proprietary claim.

The legal issues before the court included whether Bettina should be allowed to access funds from a freezing order to pay for expert witness assistance and legal representation. The court considered the principles behind freezing orders, which aim to prevent the dissipation of assets, and the distinction between freezing orders over assets claimed by the plaintiff and those claimed by the defendant. The court also considered whether Bettina had an arguable case for the validity of the will and transactions and whether there were discretionary considerations that favoured varying the freezing order.

The court found that Bettina had no other means to fund her defence and that she had an arguable case that the will and transactions were valid. The court considered the medical evidence and expert opinions regarding Karin's mental capacity, as well as the lack of other funds available to Bettina. The court concluded that it was in the interests of justice to allow Bettina access to the funds to engage expert assistance and potentially legal representation. The freezing order was varied to permit Bettina to access $20,000 for expert witness fees. The court also suggested that it might be reasonable to release additional funds for Bettina's legal representation if the parties could not agree on this matter.

The court granted Bettina's application to vary the freezing order and allowed her to access $20,000 for expert witness assistance. The court further suggested that it might be reasonable to release additional funds for Bettina's legal representation if the parties could not agree on this matter. The court invited counsel to address the issue of costs by filing memoranda within specified timeframes.

Orders