Ellin v The Public Trust - [2018] NZHC 667

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1172

[2018] NZHC 667

BETWEEN
CHRISTINE ANNE ELLIN, JOHN

CAMPBELL GREENLEES, MICHAEL LENNOX GREENLEES
Plaintiffs

AND

THE PUBLIC TRUST

First Defendant

DERMOT RICHARD BLAKE

Second Defendant

Hearing: 12 April 2018

Appearances:

K N Mortimer for Plaintiffs

No appearance for First Defendant J Strauss for Second Defendant

Judgment:

12 April 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 12 April 2018 at 4.15 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors/Counsel:
Lewis Callanan, North Shore City (k.mortimer@lewiscallanan.co.nz ) John Strauss, Barrister, Auckland (straussnz@gmail.com)

ELLIN & ORS v THE PUBLIC TRUST [2018] NZHC 667 [12 April 2018]

Recall of probate

[1] Mrs Doreen May Greenlees died on 28 December 2016. On 15 March 2017, probate was granted of her subsequently disputed will dated 28 September 2015. The plaintiff applies for recall of the grant of probate of the will of dated 15 March 2017 in proceeding CIV-2017-485-603097. The Public Trust, the first defendant as trustee, consents. Mr Dermot Blake, the second defendant, is a beneficiary under the disputed will and, though to a much lesser extent, under the previous will. He also does not now oppose the application.

[2] I am satisfied recall of probate is justified on the ground Mrs Greenlees, then aged 89, deaf, not being able to see well enough to read, and suffering from dementia, lacked testamentary capacity at the time she made the will of 28 September 2015. I grant the application for recall.

Progress of the proceedings

[3] Prior to the issue of proceedings, and on 5 April 2017, the plaintiffs invited the second defendant to accept Mrs Greenlees did not have testamentary capacity and advised costs would be an issue if proceedings had to be issued.

[4] On 6 September 2017 Associate Judge Sargisson adjourned the proceeding to allow Dr Jane Casey to prepare a report on testamentary capacity. Her report was issued on 5 November 2017. On 9 November 2017, the plaintiffs sent a Calderbank offer to the second defendant, requesting consent to recall of probate in return for withdrawal of the application of costs against the second defendant. The second defendant rejected the offer.

[5] At a case management conference on 16 November 2017, counsel for the Public Trust, the first defendant, consented to recall of probate on the basis of Dr Casey’s report.1 Mr Blake, the second defendant, requested further time to consider Dr Casey’s report and to engage his own expert. Associate Judge Sargisson recorded

1 Minute of Associate Judge Sargisson dated 16 November 2017 at [3].

that Mr Blake was on notice that the plaintiffs would seek solicitor-client costs if their claim to probate were successful.2

[6] A second expert report, prepared by Dr Gary Cheung, was issued on 20 January 2018. On 19 February 2018 counsel for Mr Blake advised the Court he no longer opposed…

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: [2018] NZHC 667
Decision Date: 12 April 2018

CaseChat Overview and Summary

The plaintiffs, Christine Anne Ellin, John Campbell Greenlees, and Michael Lennox Greenlees, sought the recall of the probate of Doreen May Greenlees’ will. The Public Trust, as the first defendant and trustee, consented to the recall. The second defendant, Dermot Richard Blake, who was a beneficiary under the disputed will, initially opposed the recall but later withdrew his opposition. The case was heard by Palmer J in the High Court of New Zealand, Auckland Registry.

The primary legal issue in the case was whether the deceased, Mrs. Doreen May Greenlees, had testamentary capacity when she executed her will dated 28 September 2015. Given Mrs. Greenlees’ advanced age, deafness, poor eyesight, and dementia at the time of making the will, the court had to determine if these factors impaired her capacity to understand the nature and effect of making a will. The court also had to decide on the appropriate allocation of costs between the parties.

Palmer J found that Mrs. Greenlees lacked testamentary capacity at the time she executed the will due to her advanced age, deafness, poor eyesight, and dementia. Consequently, the court granted the application for recall of the probate. The court considered the fundamental principle that a losing party contributes towards the winning party's legal costs. Given that the Public Trust consented to the recall upon the availability of expert opinion, and the second defendant had been previously notified about potential costs, the court found it just to direct that half of the costs be borne by the estate. For the steps taken after the Calderbank offer, the court deemed it fair for the second defendant to bear his own costs.

Palmer J ordered that half of the costs payable by the Public Trust be paid out of the estate, and half of the costs payable by Mr. Blake also be paid out of the estate up until his response to the Calderbank offer. Beyond that point, Mr. Blake was to bear his own costs. This decision ensured a fair allocation of costs considering the circumstances and the positions taken by the parties throughout the proceedings.

Orders