Estate of Gordon - [2025] NZHC 1100

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-624232

[2025] NZHC 1100

IN THE ESTATE
of CECILY JEAN GORDON

Deceased

Hearing: On the papers

Counsel:

C R D Williams for Applicant P J O’Dea for Caveator

Judgment:

8 May 2025

JUDGMENT OF RADICH J

[1] Cecily Jean Gordon died on 28 November 2023 leaving a final will dated 1 December 2022 (the Will). The Will named her son, Stephen John Pugh, as the sole executor and trustee. It left the entirety of the residue of her estate to her children.

[2] The Will left nothing to Walter Tatily Gordon, the deceased’s previous partner. The two separated on 25 April 2023 but did not resolve relationship property issues before the deceased passed away. In particular, the former family home (which was owned by the deceased and Mr Gordon as tenants in common in equal shares) had not been sold. Mr Gordon formed the view that the Will was invalid because:

(a)the Will’s execution did not comply with the requirements set out in

Banks v Goodfellow1 because there was no discussion about the extent

1 Banks v Goodfellow (1870) LR5 QB 549, a case which established the legal test for testamentary capacity, which includes a requirement that the testator understood the extent of their property and was able to understand the claims of those who might reasonably expect to inherit or benefit from their estate.

ESTATE OF CECILY JEAN GORDON [2025] NZHC 1100 [8 May 2025]

of the deceased’s assets, of the claims that would be made on the assets, or of obligations owed in relation to the assets; and

(b)the Will’s execution did not give recognition to a contracting-out agreement, dated 15 October 1987, which is said to have directly affected the deceased’s ability to dispose of property.

[3] In addition, Mr Gordon raised issues in correspondence with the estate’s solicitors, including over capacity and under the Property (Relationships) Act 1976, Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949.

[4] Accordingly, Mr Gordon lodged a caveat against the grant of probate of the deceased’s estate on 13 December 2023.

[5] On 25 June 2024, Mr Pugh filed these proceedings, applying for an order nisi for a grant of probate of the Will, under s 61 of the Administration Act. The order nisi was granted on 5 July 2024 and Mr Gordon was directed to appear on 5 August 2024 to show cause for why the order should not be made absolute.

[6] On 30 July 2024, Mr Gordon filed a memorandum confirming his consent to the withdrawal of the caveat.

[7] Mr Pugh, on behalf of the Estate, now seek costs. He seeks costs on a 2B basis and disbursements totalling $3,064, said to have been incurred as a result of Mr Gordon’s lodging of the caveat. His view is that he was the successful party, that there were no reasonable grounds for Mr Gordon to…

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: [2025] NZHC 1100
Decision Date: 8 May 2025

CaseChat Overview and Summary

In the Estate of Cecily Jean Gordon, deceased, Walter Tatily Gordon sought to contest the validity of the deceased's will which left him nothing and instead left the residue of the estate to her children. Walter Gordon lodged a caveat against the grant of probate of the estate, which was subsequently withdrawn by him. The sole executor and trustee of the estate, Stephen John Pugh, then sought costs against Walter Gordon for the expenses incurred in relation to the caveat. The central legal issue before the court was whether Walter Gordon had reasonable grounds for lodging the caveat and whether he was justified in doing so, and consequently whether Stephen John Pugh was entitled to costs against Walter Gordon.

The court found that Walter Gordon's challenge to the validity of the will was unsustainable. The court considered the medical certificate relating to the deceased's capacity, the powers of attorney executed at the same time as the will, and the presumption of competence. Furthermore, the court noted that no factual basis had been provided to support Walter Gordon's other grounds for lodging the caveat. The court also clarified the distinction between a caveat lodged in respect of an application for a grant of probate and proceedings under the Property (Relationships) Act 1976, the Family Protection Act 1955, and the Law Reform (Testamentary Promises) Act 1949. The withdrawal of the caveat by Walter Gordon indicated his acceptance that there was no basis for lodging it. Therefore, the estate had been put to expense in initiating these proceedings. Given that Stephen John Pugh was the successful party, the court held that he was entitled to costs.

In conclusion, the court awarded costs in these proceedings against Walter Gordon on a 2B basis in the sum of $2,390. The court found that there were no reasonable grounds for Walter Gordon to lodge the caveat preventing the grant of probate, and that the sum claimed by Stephen John Pugh for the expenses incurred was reasonable. This conclusion was consistent with the outcomes in similar cases.

Orders