Estate of Mitchell
[2024] NZHC 1477
•5 June 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-400
[2024] NZHC 1477
UNDER Section 54 of the Administration Act 1969 and Part 19 of the High Court Rules 2016 IN THE MATTER
of an application by CALLUM JASON PAUL RYAN for an order in respect to the estate of ANDREW JONOTHAN
MITCHELL
Hearing: On the papers Counsel:
T Andrews for Applicant R Rao for Gayleen Carson
Judgment:
5 June 2024
JUDGMENT OF McHERRON J
(Costs)
Introduction
[1] On 19 April 2024, by consent, I granted Callum Ryan’s application to discontinue his application under s 54 of the Administration Act 1969 for the production of the “original will” of Andrew Jonothan Mitchell.
[2]In this judgment, I determine two costs applications:
(a)an application by Mr Ryan for the costs of his s 54 application to be met from Mr Mitchell’s estate; and
ESTATE OF MITCHELL [2024] NZHC 1477 [5 June 2024]
(b)an application by Gayleen Carson that Mr Ryan pay her scale costs in the sum of $2,390 plus $110 disbursements, in respect of her opposition to the s 54 application.
Background
[3] In a judgment dated 16 April 2024, Edwards J validated a document dated 27 August 2022 as Mr Mitchell’s valid will and corrected cls 3(d)–3(g) of the will.1 I gratefully adopt Edwards J’s account of the relevant background.
[4] The validation and correction application was unopposed, but affidavits filed by three individuals, including Mr Ryan, called into question some of the provisions of the will and Mr Mitchell’s testamentary intentions.
[5] According to the will as validated, both Mr Ryan and Ms Carson are named as executors. However, the will as witnessed on 27 August 2022 by Mr Ryan and his brother had appointed Mr Ryan as sole executor.
[6] Mr Ryan deposed that he had read the document carefully before Mr Mitchell signed it. Mr Ryan is sure that, when he witnessed the will, it did not appoint Ms Carson as an executor. However, Mr Ryan says that Mr Mitchell told him that he was considering revising the will to include Ms Carson as a beneficiary.
[7] Moreover, cls 3(f) and 3(g), which provide for Mr Mitchell’s cash assets to be gifted equally to Ms Carson and Ms Reid, were not included in the will that Mr Ryan witnessed.
[8] Ms Carson advised that she saw Mr Mitchell the day after the will was signed (28 August 2022). When she saw the will, both Mr Ryan and Ms Carson were named as executors and it included cls 3(f) and 3(g).
[9] Edwards J acknowledged that Mr Ryan’s affidavit raised issues about the validity of those portions of the will which appointed Ms Carson as executor, and
1 Re Estate of Andrew Jonothan Mitchell [2024] NZHC 811.
which gave Ms Carson and Ms Reid a half share of Mr Mitchell’s cash assets. Edwards J acknowledged that there was nothing to contradict Mr Ryan’s affidavit. However, Edwards J noted that Mr Ryan did not allege that the challenged parts of the will were a result of a forgery or fraud. Edwards J proceeded on the basis that Mr Mitchell had added those provisions himself, after the will was witnessed by Mr Ryan and his brother. Edwards J concluded that, despite evidence of some volatility in the relationship between Mr Mitchell and Ms Carson, she was satisfied that the will, including the unwitnessed portions, reflected Mr Mitchell’s testamentary intentions. Accordingly, she made an order validating that document. Edwards J also made corrections, as described above, so that the will more accurately reflected the intentions of Mr Mitchell.
Mr Ryan’s application under s 54 Administration Act 1969
[10] On 27 June 2023, prior to the validation application, Mr Ryan applied without notice for an order that Ms Carson or her solicitors produce Mr Mitchell’s original will.
[11] On 25 July 2023, Churchman J declined to address the application on a without notice basis and directed that the application be served.2
[12] On 11 August 2023, a notice of opposition and affidavit was filed by Ms Carson. One of Ms Carson’s grounds of opposition was that she had, since late 2022 sought Mr Ryan’s co-operation in an application for probate, but that he had “refused or neglected to [co-operate]”. The notice indicated that Ms Carson would shortly apply under s 14 of the Wills Act 2007 to validate the will. The original will would be produced to the Court as part of this application and so the application for production was unnecessary.
Submissions of Mr Ryan
[13] In his submissions seeking costs Mr Ryan explains that Ms Carson attempted to convince him to accompany her to her lawyers so that probate of the will could be
2 Re Estate of Andrew Mitchell HC Wellington CIV-2023-485-400, 25 July 2023 (Minute of Churchman J).
obtained. Mr Ryan then became aware that Ms Carson had been added as an executor and that some testamentary dispositions did not appear to be the final testamentary wishes of the deceased, as witnessed by Mr Ryan. Mr Ryan sought legal advice and then sought production of the original will from Ms Carson so that Mr Ryan could, as the only named executor in the original will he witnessed, apply to the Court for a grant of probate. Mr Ryan originally sought production of the original will in correspondence in March 2023. Ms Carson refused to produce the original will on the grounds that she intended to apply for validation of the will. However, Mr Ryan points out that it was not until 10 months later, in January 2024, that Ms Carson made her application. By this time, Mr Ryan had already filed his application under s 54 of the Administration Act.
Submissions of Ms Carson
[14] Ms Carson relies on the ordinary presumption in r 15.23 of the High Court Rules 2016 that a party who discontinues a proceeding will be liable for costs. Ms Carson notes that this presumption can be displaced where the Court finds circumstances which make it just and equitable that it should not apply. Ms Carson points out that Mr Ryan attempted to obtain orders under s 54 through an improper use of the without notice procedure. She points out that Churchman J required Mr Ryan to proceed with his application on notice. Ms Carson refers to Mr Ryan’s application as being fundamentally misconceived both in relation to its commencement and what it sought to achieve. She submits that it is appropriate in the circumstances that Mr Mitchell’s estate not to be required to meet the costs of the Mr Ryan’s application and that Ms Carson not to be required to personally bear the costs of opposing it.
Analysis
[15] In my view, Mr Ryan’s s 54 application was misconceived, both in relation to the manner of its commencement without notice and in relation to the substance of what it sought to achieve.
[16] To his credit however Mr Ryan promptly withdrew his application when he realised that it had no merit.
[17]Both parties refer to the principles set out in Re Paterson (Deceased):3
The Court has a general discretion as to costs in all actions and proceedings before it, but there are certain well-established principles upon which that discretion should be exercised in cases of contested wills. They are as follows: (i.) If the litigation originates in the fault of the testator—eg by the state in which he left his testamentary writings, or by his eccentric or irrational habits and mode of life—or of those interested in the residue the costs may properly be paid out of the estate. (ii.) If there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent. (iii.) Unless the circumstances of the case are such as to bring it within one of the foregoing exceptions, the general rule that costs should follow the event ought to prevail…
[18] I consider that a combination of the first and second principles from Re Paterson above applies in respect of both applications for costs. By the somewhat eccentric circumstances of the preparation and amendment of Mr Mitchell’s will, Mr Ryan became suspicious, prompting him to embark on his ill-advised litigation.
[19] However, I stop short of making any award of costs out of the estate in Mr Ryan’s favour. Despite having genuine concerns about the changes to the will, I consider that if Mr Ryan had co-operated with Ms Carson either in respect of an application for probate, or relied on the inevitable validation application as the appropriate procedure in which to ventilate his concerns, there would have been no need for his s 54 application.
[20]Moreover:
(a)In my view, Ms Carson could have done more to address Mr Ryan’s concerns about the will by at least allowing him to view the original will; and
(b)Ms Carson could have progressed her application for validation of Mr Mitchell’s will more promptly.
3 Re Paterson (Deceased) [1924] NZLR 441 (SC) at 442–443.
[21]Therefore, in my view it is inappropriate to make any award of costs against
Mr Ryan.
[22] Ms Carson is to be treated as the successful party for the purposes of costs. However, as it was Mr Mitchell’s changes to his will after it had been witnessed that prompted Mr Ryan’s application, it is just and equitable for her to recover her costs from the estate, rather than from Mr Ryan.
[23]Accordingly, I order that
(a)Ms Carson may recover costs of $2,390 and $110 disbursements from Mr Mitchell’s estate; and
(b)Mr Ryan’s costs application is dismissed.
McHerron J
Solicitors:
Thomson Wilson for Mr Ryan Inder Lynch for Ms Carson
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