Eastgate v Walker-Prentice

[2021] NZHC 2469

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000283

[2021] NZHC 2469

BETWEEN

PETER CHRISTOPHER EASTGATE

Applicant

AND

SHARON BEULAH WALKER-PRENTICE

First Respondent

LOIS REBECCA BECKWITH
Second Respondent

WARREN REGINALD WALKER

Third Respondent

Hearing:

13, 14 and 15 September 2021

Appearances:

J V Ormsby and B A Harkerss for Applicant G M Brodie for First respondent

K W Clay and S J Jamieson for Second and Third Respondents

Judgment:

20 September 2021

JUDGMENT OF GENDALL

This judgment was delivered by me on 20 September 2021 at 3 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]                  This proceeding brought in April 2019 involved an application for probate in solemn form of the will of the late Zelda Rose Walker (Zelda) dated 25 July 2012 (the 2012 will). The applicant (Mr Eastgate) brings this application on the basis that as the last remaining executor of the 2012 will, he has a duty to propound it and prove its validity.

EASTGATE v WALKER-PRENTICE [2021] NZHC 2469 [20 September 2021]

[2]                  A further will of Zelda was made in 2014 (the 2014 will) but, for reasons advanced in Mr Eastgate’s pleadings and supporting affidavits, he believes this will was likely to have been made when Zelda lacked testamentary capacity and also at a time when she was operating under undue influence of her daughter, the first respondent (Sharon).

[3]                  On 9 August 2019, Sharon filed a statement of defence in opposition to     Mr Eastgate’s 1 April 2019 pleading seeking probate in solemn form for the 2012 will. In this statement of defence, Sharon contends the 2012 will was itself the subject of undue influence on her mother Zelda by both her sister the second respondent (Lois), and her brother the third respondent (Warren). Accordingly, she sought in a counterclaim forming part of her statement of defence that probate in solemn form instead should be granted with respect to the 2014 will.

[4]                  Then on 27 August 2019 both the second respondent, Lois, and the third respondent, Warren, filed replies to their sister Sharon’s defence and counterclaim. The denied undue influence on their part with respect to the 2012 will and they supported Mr Eastgate’s application for a grant of probate in solemn form with respect to that will.

[5]                  Broadly speaking, the 2014 will Zelda made, supported by Sharon, in effect favours Sharon over Lois and Warren to the extent of about $400,000 or so in that it purports to write-off certain loans and gifts made by Zelda to her children for a period prior to her will.

[6]                  Hearing of the dispute over these wills commenced in this Court on Monday 13 September 2021, and continued on Tuesday 14 September 2021 and until around lunchtime on Wednesday 15 September 2021. At that time on the Wednesday, and following discussions with counsel, a settlement of the dispute between the parties was reached. To record this, an acknowledgment was signed whereby Sharon withdrew her opposition to Mr Eastgate’s application for solemn probate of the 2012 will. A discontinuance of this proceeding was in due course to follow and costs for Sharon, on the one hand, and for Lois and Warren, on the other, were agreed between the parties simply to lie where they fell. Costs, however, for Mr Eastgate the executor

of the 2012 will were to be paid from Zelda’s estate, and this was to be on a solicitor and own client basis.

[7]                  The hearing of this matter, therefore, concluded early in the afternoon of Wednesday last, 15 September 2021.

[8]                  Counsel for Mr Eastgate, on 17 September 2021, with the agreement of all parties has filed a draft judgment and orders, with the suggestion that these should follow.

[9]                  So far as Mr Eastgate’s application for probate in solemn form of the 2012 will is concerned, I am satisfied from the evidence which has been placed before the Court that this is the last valid will of the deceased, Zelda. Medical and other evidence is before me to show that she had testamentary capacity at the time the 2012 will was executed. I am satisfied too from all the evidence before me that Zelda was not operating under any undue influence when she executed this 2012 will.

[10]              I am also satisfied on the basis of all the evidence before me that so far as the 2014 will is concerned, at the time it was executed, Zelda did not have testamentary capacity and it is likely also she may have been operating under Sharon’s influence such that the 2014 will necessarily did not constitute Zelda’s last will and, thereby it was not able to revoke her 2012 will.

[11]              I note, too, that effectively now there is no opposition to the order sought by Mr Eastgate in his application.

[12]              Bearing all this in mind (and noting again there is no remaining opposition to Mr Eastgate’s present application), and having heard, first, from counsel for all parties and, secondly, all the evidence which has been adduced before me, I confirm that   Mr Eastgate’s application before me succeeds.

[13]Accordingly, I give judgment that:

(a)The last will of Zelda Rose Walker, deceased, dated 25 July 2012 has been proved in solemn form to be a valid will and therefore probate of

it is directed to issue solely to Peter Christopher Eastgate as one of the executors named in the said will, the other two executors having renounced probate.

(b)In accordance with the above order, the said will of the deceased, Zelda Rose Walker who died at Christchurch in New Zealand on or about 8 September 2018 has been proved before me.

(c)This probate document appoints Peter Christopher Eastgate of Christchurch, solicitor, an executor named in the will, as the administrator of the deceased, Zelda Rose Walker’s, estate.

(d)Peter Christopher Eastgate is entitled to his costs (including disbursements) on a solicitor and own client basis in respect of all matters in this proceeding and these are to be paid from the estate of the late Zelda Rose Walker.

(e)There are no other orders made as to costs and, therefore, the costs of the first respondent on the one hand and the costs of the second and third respondents on the other hand are to lie where they fall.

...................................................

Gendall J

Solicitors:

Cavell Leitch, Christchurch

Tavendale & Partners, Christchurch

Copies to:

Jared Ormsby, Barrister, Christchurch Geoffrey Brodie, Barrister, Christchurch Kevin Clay, Barrister, Christchurch