Estate of Fredatovich

[2018] NZHC 869

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-485-612569

[2018] NZHC 869

UNDER THE

Administration Act 1969

IN THE MATTER

of the Estate of Patricia Elizabeth Ellen Fredatovich

BETWEEN

NIGEL BRUCE CARPENTER

Applicant

Hearing:

30 April 2018 (By way of telephone conference)

Appearances:

R Reeve for the Applicant

S McAnally for P S Fredatovich

Judgment:

30 April 2018

JUDGMENT OF DUNNINGHAM J

[1]    These proceedings concern the will of Patricia Elizabeth Ellen Fredatovich (the testator),  who  died  on  15  June  2017.     The  testator  made  her  last  will  on      3 December 2013, but altered that will by codicil made on 26 April 2014.

[2]    The testator has three surviving children, John, Christine and Kathryn and one son, Peter Michael Fredatovich (Peter), who predeceased her. Peter is the father of Peter Steven Fredatovich (the caveator) who has lodged a caveat against administration of the estate of the testator.

[3]    Under the will made on 3 December 2013, the testator’s residual estate was to be divided four ways, with the share that Peter would otherwise have inherited going

THE ESTATE OF PATRICIA ELIZABETH ELLEN FREDATOVICH [2018] NZHC 869 [30 April 2018]

to his three children, being the caveator, his sister Maria and his brother Anthony. In addition, the caveator’s mother, Monique Fredatovich (Monique), was originally gifted the testator’s car.

[4]However, the codicil made on 26 April 2014 changed the will in two ways:

(a)it removed the provision made for the children of the testator’s deceased son, Peter; and

(b)it removed the gift of the car to Monique.

[5]    The caveator is troubled by the fact that his grandmother changed her will only four months after executing it and he is concerned that his aunt Kathryn was involved in, and influenced, the testator’s decision to make the codicil.

[6]    In short, there is allegation of undue influence which the caveator submits requires the application for probate of the testator’s will be made in solemn form.

The Administration Act

[7]    Section 61 of the Administration Act 1969 provides that where a caveat has been lodged, the Court may, upon the application of the person applying for administration, grant an order nisi for the grant of administration, which order shall name a time and place for “showing cause” against the grant of administration.

[8]    An  order  nisi  was  granted  on  15  February  2018.   By   minute  dated    23 March 2018, I required any affidavit evidence in support of the caveator’s claim to be filed and served on the applicant by 19 April 2018. I directed that a hearing by telephone conference was to be convened as soon as practicable thereafter. I recorded that if no evidence had been filed, or no cause was shown, the order nisi would be made absolute. Alternatively, I signalled that the application for administration would need to be made in solemn form and directions would be made for service on affected parties, in anticipation of a contested hearing.

[9]    In this case, I have received evidence from the caveator and from his mother, Monique which sets out the  basis  of  their  concerns  about  the  codicil  made  on 26 April 2014.

[10]   In summary, they outline that the testator had a close relationship with her son Peter. The testator entrusted Peter with her power of attorney and cared for her after her husband died in 2007. Peter’s wife Monique says that the testator was devastated when her son was diagnosed with cancer and died on 9 July 2012 and it was unsurprising that she continued to include Peter’s family in her will.

[11]   Furthermore, after her husband died in 2012, Monique, with the assistance of her son, the caveator, continued to assume responsibility for aspects of the testator’s care that Peter had attended to before he died. Monique also took care of the testator’s car after Peter died, including ensuring it was serviced and obtained warrants of fitness, and she had been told by her mother-in-law that she would inherit the car. It seems surprising, therefore, that this intention changed so quickly.

[12]   The testator’s other children did not live in such close proximity to their mother and therefore did not have the same responsibilities for her care as were taken on by Peter, before his death, and then Monique.

[13]   The testator’s physical and mental health deteriorated in her last three and a half years of her life. The caveator and his family moved into the downstairs part of the testator’s house in March 2014, but at the same time, the caveator’s aunt Kathryn, made increasingly frequent visits to the testator. The evidence is that during this time the testator became increasingly anxious about her financial position and reportedly said that she had been told, by Kathryn, that she did not have much money.

[14]   At about the time the codicil to the will was made, the testator’s attitude towards her daughter-in-law, Monique, changed, in a way which Monique and the caveator say seemed “irrational”, with her accusing her daughter-in-law of stealing from her. This culminated in Monique’s removal as attorney and her replacement by Kathryn.

[15]   In the circumstances, the caveator submits that the testator was susceptible to influence, whether or not she had reached the position of having testamentary incapacity. The obvious effect to the codicil is to increase the respective shares of the testator’s three surviving children. The caveator says it is “remarkable” that in the event that John, Christine or Kathryn happened to predecease the testator, that their children would take their parents’ share and yet, despite the closeness of the testator’s relationship with her son Peter, she would choose not to treat that side of the family less favourably. The caveator submits that all these factors raise a question as to whether the codicil was the outcome of undue influence being exerted, such as would warrant a full enquiry into that claim.

Decision

[16]   I accept that the affidavits filed by the caveator constitute sufficient evidence to show cause for the caveat in that there was:

(a)an opportunity to exert undue influence upon the testator;

(b)evidence to suggest that the testator was potentially susceptible to such influence; and

(c)changes were made to the will which are sufficiently unexpected to suggest the possibility that the changes do not reflect the testator’s own wishes (although I note the estate’s solicitor says they may be explicable because of advances made to certain family members within the testator’s lifetime).

[17]   For all these reasons, I am satisfied that a full enquiry into the facts surrounding the making of the codicil is justified.

[18]   I note, too, that counsel advise that in the alternative, claims under the Family Protection Act are likely to be made. It seems logical that all such claims be dealt with in the one proceeding, and will allow any such claim to be brought in the form of a counterclaim in the application for probate in solemn form.

[19]   The caveator seeks his costs and the Administration Act provides that if the Court considers it just, those costs may be paid from the estate.1 However, given the early stage of these proceedings, it seems to me more appropriate that costs are reserved, to be determined in light of the outcome of the proceedings. I note that both the caveator and the solicitors for the estate have dealt with the matter practically and efficiently, in order to keep costs at this stage to a minimum.

Orders

[20]In the circumstances, I make the following orders:

(a)The applicant is required to apply for probate in solemn form.

(b)The application is to be served on all beneficiaries of the April 2013 will, which includes the wife of the late Peter Michael Fredatovich and his three children.

(c)Any counterclaim, for example, under the Family Protection Act 1955, can be brought in the same proceeding and will be heard at the same time.

(d)The affidavits already filed in this proceeding by the caveator can be used in evidence in those subsequent proceedings.

(e)Costs are reserved.

Solicitors:

Keegan Alexander, Auckland

Wilkinson Rodgers Lawyers, Dunedin

1      Section 61(d).