Endean v Smith - [2020] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-612531

[2020] NZHC 2365

UNDER Sections 60 and 61 of the Administration Act 1969

IN THE MATTER

of the Estate of GEORGE CLIFFORD SMITH

BETWEEN

WILLIAM ARTHUR ENDEAN

Applicant/Respondent

AND

JOCELYN LOIS SMITH

Caveator/Applicant

Hearing: 10 September 2020

Appearances:

W Andrews for Applicant/Respondent P Amaranathan for Caveator/Applicant

Judgment:

11 September 2020

JUDGMENT OF VENNING J

This judgment was delivered by me on 11 September 2020 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:Dawsons, Auckland Rice Craig, Auckland

Counsel: W Andrews, Auckland

ENDEAN v SMITH [2020] NZHC 2365 [11 September 2020]

Introduction

[1] George Clifford Smith died on 9 August 2019 leaving a will dated 2 August 2019. William Endean, the named executor, made application for probate in common form on 29 August 2019. On 10 September 2019 Jocelyn Lois Smith, George Smith’s wife, lodged a caveat.

[2] On 30 June 2020 the Court made an order nisi for the grant of probate and directed that unless Mrs Smith showed cause why the order should not be made absolute probate of the will would be granted to Mr Endean.

[3] Mrs Smith has made an application for orders requiring Mr Endean to file an application for probate in solemn form and that the order nisi not be made absolute.

Factual background

[4] George Smith was 90 years old when he died. Jocelyn Smith is 81. They had been together 60 years. Jocelyn was in a de facto relationship with George Smith from 1959 and married him in April 1981. George and Jocelyn Smith had five children – Robyn Rankin, Jennifer Stronge, Warwick Smith, Alison Smith and Susan Widvey. They have 11 grandchildren.

[5] The principal residence the parties lived in was a property at 5 The Glebe, Cockle Bay, Auckland. At George’s death it was owned by Jocelyn and George as tenants in common in equal shares.

[6] Although the parties’ relationship was a long one, it appears from the evidence to have been a difficult one. They effectively lived their own lives from about 2014 even while still living together in The Glebe and in the months prior to George’s death they lived physically separate and apart.1

1 While in her second affidavit dated 1 September 2020, Jocelyn says she and George only physically separated in 2019, in her first affidavit of 11 August 2020, she describes their separate living arrangements from an earlier stage at [18] to [19].

The will

[7] In his last will made on 2 August 2019 George left his entire estate to the Fazakerly Trust. The beneficiaries of the Fazakerly Trust are the parties’ 11 grandchildren. Mr Endean is the sole trustee of the Fazakerly Trust.

Jocelyn Smith’s case

[8]Jocelyn Smith says that there are grounds for a full inquiry into:

(a)the circumstances of the 2nd August 2019 will and of a draft codicil to the will and…

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 Endean v Smith

Details

AGLC: Endean v Smith [2020] NZHC 2365
Case: [2020] NZHC 2365
Decision Date: 11 September 2020

CaseChat Overview and Summary

The case of Endean v Smith involves a dispute over the administration of the estate of George Clifford Smith, who passed away on 9 August 2019. The will, dated 2 August 2019, names William Endean as the executor, and he applied for probate in common form on 29 August 2019. Jocelyn Lois Smith, George's wife, lodged a caveat on 10 September 2019. On 30 June 2020, the Court made an order nisi for the grant of probate, directing that unless Jocelyn Smith showed cause why the order should not be made absolute, probate of the will would be granted to Mr. Endean. Jocelyn Smith has applied for orders requiring Mr. Endean to file an application for probate in solemn form and that the order nisi not be made absolute.

The legal issues in this case revolve around the validity of the will dated 2 August 2019 and the potential undue influence on George Smith when executing the will. Jocelyn Smith argues that there are grounds for a full inquiry into the circumstances of the will and whether George was subject to undue influence when signing the will or giving instructions in relation to it. The executor's position, represented by Ms. Andrews, submits that Jocelyn Smith should have sought validation of the unexecuted codicil under s 14 of the Wills Act 2007 and that as there is no basis to support the allegation of undue influence, there is no justification to require Mr. Endean to apply for probate in solemn form.

The court found that the caveator has not satisfied the onus on her to prevent the order nisi being made absolute or to require an application for administration in solemn form in relation to the will of 2 August 2019. The will was made at a time when George had testamentary capacity. There is no basis to the suggestion it was made while George was under undue influence. The matter should not be further delayed while Jocelyn Smith pursues the application under the Wills Act. Caveats against probate should be dealt with expeditiously.

In conclusion, the caveat is discharged, and the order nisi in relation to the will of 2 August 2019 is made absolute. The executor is to have costs on these proceedings against Jocelyn Smith, but limited to costs on a 2B basis together with disbursements.

Orders