Du Preez v Kelly - [2021] NZHC 2611

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-257

[2021] NZHC 2611

IN THE MATTER of a freezing order application

BETWEEN

WILLEM DU PREEZ

Applicant

AND

PETER CRELLAN KELLY, as executor of the ESTATE OF BARBARA ANNE DOORNEKAMP-WELLMAN

First Respondent

AND

JANET FIONA KELLY

Second Respondent

continued ….

Hearing: 22 September 2021 (by VMR)

Appearances:

D M Abricossow for Applicant

E J Horner and A D Goble for First Respondent D J Riden Fifth Respondent in-person

Judgment:

1 October 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

DU PREEZ v KELLY [2021] NZHC 2611 [1 October 2021]

AND BUCHANAN GRAY LAWYERS
Third Respondent

AND ANZ BANK OF NEW ZEALAND
Fourth Respondent

AND DONALD JAMES RIDEN
Fifth Respondent

AND AMY LOUISE STOKS
Non-Party

[1] The applicant, Mr Du Preez, seeks what, in form, is pre-commencement discovery under rr 8.20 and 8.21 of the High Court Rules 2016 (the Rules), but in substance is a request that the fifth respondent, Mr Riden, and a non-party, Ms Stoks, be ordered to produce handwriting samples. During the hearing, Mr Abricossow, counsel for the applicant, focused on r 9.34 of the Rules which is also relied on in the application.

Background

[2] The applicant and his wife provided domestic services for approximately 10 years up until late 2019 to the late Ms Doornekamp-Wellman, who died on 8 January 2021.

[3] Ms Doornekamp-Wellman left the applicant a Will she made in 2012, subject to a Codicil made in mid-2019 (the 2012 Will).

[4]The first respondent, Mr Kelly, is the nephew of Ms Doornekamp-Wellman.

[5] In September 2019, Ms Doornekamp-Wellman was assessed as lacking capacity to manage her personal care and welfare and an independent solicitor was appointed by the Family Court to represent her.

[6] In November 2019, Mr Kelly was appointed Ms Doornekamp-Wellman’s property manager and welfare guardian.

[7] In February 2020, the independent solicitor reported to the Family Court that it would be appropriate for a Will to be executed for Ms Doornekamp-Wellman.

[8] It seems that neither Mr Kelly nor the independent solicitor were aware of Ms Doornekamp-Wellman’s pre-existing Will.

[9] The Family Court, on 15 April 2020, approved the draft Will in the form executed on 12 May 2020 (the 2020 Will). Ms Doornekamp-Wellman passed away on 8 January 2021 and Probate of the 2020 Will was granted on 5 March 2021.

[10] Under the 2012 Will, the applicant received 20 per cent of the residue of the Estate. However, under the 2020 Will the applicant does not receive anything and Mr Kelly receives 50 per cent of the residue.

Applicant’s allegations

[11] The 2020 Will was completed when New Zealand was under the original COVID-19 lockdown, with level 3 applying on the day the Will was signed and witnessed. The Will was signed by Mr Kelly on behalf of Ms Doornekamp-Wellman and was witnessed by Ms Stoks and Mr Riden (or at least that is what is recorded on the Will).

[12] The…

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.

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Details

Case: [2021] NZHC 2611
Decision Date: 1 October 2021

CaseChat Overview and Summary

Willem Du Preez applied for pre-commencement discovery to obtain handwriting samples from Donald James Riden and Amy Louise Stoks, who witnessed the 2020 Will of Barbara Anne Doornekamp-Wellman. The applicant claims that the signatures of one or both of the witnesses on the 2020 Will are not genuine, rendering the Will invalid under the Wills Act 2007. The applicant seeks to use the handwriting samples for forensic analysis to support his claim. The court was required to determine whether the application for pre-commencement discovery was valid and whether the inherent jurisdiction of the court could be exercised to order the production of handwriting samples before proceedings were commenced.

The court found that the application for pre-commencement discovery was not valid as it sought the creation of documents that did not exist. The court also found that Rule 9.34 of the High Court Rules 2016 could not be relied on as it required a proceeding to be underway. The court was also hesitant to exercise its inherent jurisdiction to order the production of handwriting samples before trial as it would have the flavour of a mandatory injunction. The court found that the application had the hallmarks of a fishing expedition for evidence rather than for material needed to support a pleading. The court also found that even if there was an issue with the witnessing of the 2020 Will, it did not necessarily represent Ms Doornekamp-Wellman's testamentary intentions, and an application could be made to validate the Will under s 14 of the Wills Act 2007.

The court declined the application and directed the applicant to file substantive proceedings within a specified time. The court noted that if no submissions as to costs were filed within five working days of the date of the judgment, its initial reaction would become, without more, the order as to costs.

This case highlights the importance of ensuring that the application for pre-commencement discovery is valid and that the inherent jurisdiction of the court is exercised judiciously. It also highlights the need for applicants to carefully consider the evidence they have before commencing proceedings and to ensure that they have a sound evidentiary basis for their claims.

Orders