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Eastgate v Walker-Prentice

Eastgate v Walker-Prentice

Case [2020] NZHC 1042 19 May 2020

Probate

Will Validity

Undue Influence

Testamentary Capacity

Prospective Costs Order

Succession Law

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-4099-000048

[2020] NZHC 1042

BETWEEN
PETER CHRISTOPHER EASTGATE

Applicant

AND

SHARON BEULAH WALKER-PRENTICE

First Respondent

LOIS REBECCA BECKWITH
Second Respondent

WARREN REGINALD WALKER

Third Respondent

Hearing: 21 April 2020

Appearances:

J V Ormsby for Applicant

G M Brodie for First Respondent
K W Clay and S J Jamieson for Second and Third Respondents

Judgment:

19 May 2020

JUDGMENT OF GENDALL J

This judgment was delivered by me on 19 May 2020 at 2:15 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

EASTGATE v WALKER-PRENTICE [2020] NZHC 1042 [19 May 2020]

Introduction

[1] Zelda Rose Walker (Mrs Walker) died on 8 September 2018. The applicant, Peter Eastgate (Mr Eastgate) as executor has applied for probate in solemn form of a will of Mrs Walker dated 25 July 2012 (the 2012 Will). Mrs Walker’s youngest daughter, the first respondent Sharon Walker-Prentice (Sharon) opposes this application. Sharon’s opposition to probate being granted of the 2012 Will is based on her contention that a later will made by Mrs Walker on 17 April 2014 (the 2014 Will) is her last will and should be admitted to probate, instead. Alternatively, Sharon suggests that an earlier will made in 2011 might be admitted to probate but not the 2012 Will.

[2] Mrs Walker’s older children, the second respondent Lois Beckwith (Lois) and the third respondent Warren Walker (Warren), as I understand the position, support Mr Eastgate’s application and accept too that the 2012 Will should be admitted to probate. They oppose their sister Sharon’s claims to the contrary.

[3] The substantive solemn form probate application in this proceeding remains to be determined.

[4] Before me, however, was an application by Mr Eastgate seeking a prospective costs order in his favour in relation to the substantive proceeding. This judgment relates to that prospective costs order application.

Background facts

[5] An issue in the substantive proceeding here is whether the Court should grant probate to the 2012 Will or to the 2014 Will. Under the later 2014 Will, Lois, Warren and Sharon are appointed executors. Lois, however, has caveated the 2014 Will.

[6] The principal difference between the two wills relates to the forgiveness of a debt/gift of $600,000 made by Mrs Walker during her lifetime to Sharon. Under the 2014 Will, this amount is forgiven entirely. Under the 2012 Will it is not. In the case of each will, the estate residue is left between Lois, Warren and Sharon equally.

[7] If the 2012 Will is admitted to probate the effect is that Lois and Warren will receive an extra $400,000 ($200,000 each) which they would not receive under the 2014 Will. Sharon maintains that the $600,000 forgiveness noted at [6] above mirrors the provisions of all previous wills made by her mother except the 2012 Will.

[8] As I understand it, there have been long-running disputes between Sharon on the one hand and Lois…

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 Eastgate v Walker-Prentice

Details

AGLC: Eastgate v Walker-Prentice [2020] NZHC 1042
Case: [2020] NZHC 1042
Decision Date: 19 May 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Eastgate v Walker-Prentice involved an application for a prospective costs order in relation to a substantive proceeding for probate in solemn form of a will. The applicant, Peter Eastgate, sought to propound a 2012 will as the last valid will of Zelda Rose Walker, who had passed away. The first respondent, Sharon Walker-Prentice, opposed the application, contending that a later 2014 will should be admitted to probate instead. The court had to decide whether the applicant was entitled to a prospective costs order in relation to the substantive proceeding.

The court considered the nature of the proceeding and whether it fell within the established categories for prospective costs orders in trust and estate cases. The court found that the proceeding fell somewhere between categories 1 and 3, as it involved a dispute between the respondents but also sought the court's guidance on the proper administration of the estate. The court concluded that the applicant was entitled to a prospective costs order to cover his reasonable costs in issuing the proceeding, for discovery, and for preparing necessary materials for the substantive hearing, as well as for his costs in participating as a neutral and passive party at the hearing.

The court granted a prospective costs order in favour of the applicant, Mr. Eastgate, allowing him to be paid on a solicitor and own client basis his fees and disbursements, including the fees of counsel, in respect of his proper role in the proceeding. The court also made an order for the costs on the opposed prospective costs application itself, with reasonable solicitor and own client costs and disbursements on the application to be paid from the estate. The parties were given leave to revert to the court if there was disagreement as to the proper costs amounts to be reimbursed to Mr. Eastgate under the prospective costs order.

Orders