Estate of Yates

[2025] NZHC 3284

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-601937

[2025] NZHC 3284

IN THE MATTER OF

the Estate of Geraldine Yates

BETWEEN

SHARON MCGANN

Applicant

AND

PETER FRANCIS MCGANN

Respondent

Hearing:	On the papers
Counsel:	M T Riordan for Applicant Respondent in person
Judgment:	31 October 2025

JUDGMENT OF WILKINSON-SMITH J

[Costs]

This judgment was delivered by me on 31/10/2025 at Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

Quin Law, New Plymouth Copy to Respondent

RE ESTATE OF GERALDINE YATES [2025] NZHC 3284 [31 October 2025]

Introduction

[1]    On 20 August 2025 I issued a  judgment  in  favour  of  the  applicant,  Sharon McGann, making absolute an order nisi and granting probate of the last will of Geraldine Yates to Sharon McGann as sole executor and trustee. 1

[2]    I directed the parties to file memoranda on costs in the event that they were unable to agree costs between themselves.

[3]    I have since received a memorandum of counsel for Sharon McGann seeking a costs order against the respondent, Peter McGann. Peter McGann has not filed a memorandum in reply.

[4]Sharon McGann seeks an award of costs on a 2B basis in the amount of

$13,623, together with disbursements of $1,311.10.

[5]    Sharon McGann says that Peter McGann’s conduct, including his failures to observe timetable directions issued by the Court, has caused her to incur significant legal costs and disbursements.

Legal principles

[6]    Rule 14.1(1) of the High Court Rules 2016 sets out the general principle that all matters relating to costs of or incidental to a proceeding, or of a step in a proceeding, are at the discretion of the Court.

[7]    Rule 14.2(1) sets out a number of principles applying to the determination of costs, including that the party who fails with respect to a proceeding should pay costs to the party who succeeds;2 an award of costs ought to reflect the complexity and significance of the proceeding;3 an award of costs should not exceed the actual costs

1      McGann v McGann [2025] NZHC 2358.

2      High Court Rules 2016, r 14.2(1)(a).

3      Rule 14.2(1)(b).

incurred by the claimant;4 and so far as possible, the determination of costs ought to be predictable and expeditious.5

[8]    Rule 14.12(1)(a) defines a “disbursement” as “an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs”.  The  examples listed under  r 14.12(1)(b) include fees of court and expenses of serving documents in the proceeding.6

[9]Rule 14.12(2) provides that:

(2)A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—

(a)of a class that is either—

(i)approved by the court for the purposes of the proceeding; or

(ii)specified in paragraph (b) of subclause (1); and

(b)specific to the conduct of the proceeding; and

(c)reasonably necessary for the conduct of the proceeding; and

(d)reasonable in amount.

[10]   In the case of Re Paterson (deceased), Stringer J articulated the following principles applicable to probate proceedings,7 which the courts have consistently recognised:8

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—e.g., 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

4      Rule 14.2(1)(f).

5      Rule 14.2(1)(g).

6      Rule 14.12(1)(b)(i)–(ii).

7      Re Paterson (deceased) [1924] NZLR 441 (SC) at 442–443 (citations omitted).

8      See, for example, Gorringe v Pointon [2023] NZCA 426; and Hita v Hita [2023] NZHC 3095 at [14].

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…

Discussion

[11]   Sharon McGann and Peter McGann are the main beneficiaries under Ms Yates’ will. The estate is not large, and its main asset is a modest home. Sharon McGann submits that it would be fair and appropriate  for  costs  to  be  awarded  against  Peter McGann personally, so that they are paid from his share of the estate rather than the estate as a whole.

[12]   Sharon McGann is the successful party and Peter McGann’s approach to the litigation did significantly increase the costs incurred. Peter McGann did not comply with Court orders. He filed documents out of time, failed to file submissions as directed and  attempted  to  file  an  affidavit  on  the  morning  of  the  hearing.  Peter McGann was self-represented, and sought leeway from the Court as a result, but the reality is that his approach increased the cost to Sharon McGann, who did instruct counsel.

[13]   Counsel for Sharon McGann has confirmed that her actual costs exceed the amount of the award sought.

[14]   An order that Sharon McGann’s costs are to be paid out of the estate as a whole would diminish the value of her entitlement.

[15]   This is not a case where the litigation resulted from the fault of the testator. Ms Yates left a validly executed will, the terms of which were consistent with an earlier will. Peter McGann essentially refused to seek probate because he wished to have an earlier note validated as a will. I see no reason to relieve Peter McGann of costs liability in this case. While the litigation arguably arose from the conduct of Peter McGann, a party interested in the residue of the estate, I do not consider it appropriate to direct that that costs are to be paid out of the estate in circumstances where Sharon McGann is also entitled to a share of the residue, and such a direction would reduce her entitlement.

[16]The usual rule that costs follow the event should apply in this case.

[17]   I have reviewed Sharon McGann’s schedule of costs calculated on a 2B basis and am satisfied, for the most part, that the costs claimed are appropriate. However,  I note that Sharon McGann has calculated the costs she claims for the “appearance of sole or principal counsel” at the hearing on the basis of a half-day time allocation. The time allocation provided for this step in sch 3 to the High Court Rules is “the time occupied by the hearing measured in quarter days”. Because the Court’s records show that the duration of the hearing was one hour and 20 minutes, I consider the appropriate time allocation for this step to be 0.25 days. This reduces the costs that can be claimed for this step from $1,195 to $597.50 and reduces Sharon McGann’s total claimable costs from $13,623 to $13,025.50.

[18]   I also note that Sharon McGann has not provided receipts to verify the following disbursements sought in her memorandum:

(a)$260 for “Filing fee – originating Application”.

(b)$65 for “Filing fee – sealing orders”.

(c)$832 for the“Hearing fee”.

[19]These disbursements will be allowed subject to verification by the Registrar.

Result

[20]I make the following directions:

(a)The matter is categorised as category 2B.

(b)Peter McGann is to pay costs to Sharon McGann in the amount of

$13,025.50, together with disbursements of $154.10.

(c)Peter McGann is to pay the following additional disbursements included in Sharon McGann’s costs memorandum, subject to verification by the Registrar:

(i)“Filing fee — originating application”: $260.

(ii)“Filing fee — sealing orders”: $65.

(iii)“Hearing fee”: $832.

Wilkinson-Smith J