Farn v Loosley - [2017] NZHC 1951

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-485-006345 [2017] NZHC 1951

BETWEEN
EVELYN GWYNNE FARN,

KATHERINE ANNE POWELL, BARBARA ANNE POWELL, JILL ROSEMARY ELEVELD AND MARK ELEVELD

Plaintiffs

AND

JENNIFER LOOSLEY AND ROBERT GEORGE LOOSLEY

Defendants

THOMAS ALEXANDER LOOSLEY and NICHOLAS EDWARD LOOSLEY Interested Parties

Hearing: On the papers

Judgment:

16 August 2017

JUDGMENT OF COURTNEY J [COSTS]

This judgment was delivered by Justice Courtney on 16 August 2017 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

FARN & ORS LOOSLEY [2017] NZHC 1951 [16 August 2017]

Introduction

[1] In my decision of 2 March 2017 I made an order recalling probate of the will made by Allison Slater on 8 May 2014. The plaintiffs asserted that Allison had lacked testamentary capacity when she executed the will or, alternatively, that she had been unduly influenced by the defendants, Allison’s sister and brother-in-law, Jennifer (Jenny) and Robert Loosley, who were the executors of the will, and the interested parties, Thomas (Tom) Loosley and Nicholas (Nick) Loosley, who shared the residuary estate under the 2014 will.

[2] I was not satisfied that Allison had testamentary capacity either when she executed the will or when she instructed her solicitor a few days earlier. The application to recall probate therefore succeeded on the ground of lack of testamentary capacity. I did not, however, find that Allison had been unduly influenced in the making of the will.

[3] The plaintiffs seek costs on a 2C basis against Jenny, Tom and Nick personally. The defendants and interested parties do not accept that all the steps in the proceedings justify costs on a 2C basis. Nor do they accept that they should meet the costs personally. Instead, they say that the costs of all parties relating to the issue of testamentary capacity should be met from the estate and that the costs of the defendants and the interested parties on the undue influence issue should be met by the plaintiffs personally.

[4] The following questions arise:

(a) Are costs to be assessed on a 2B or 2C basis?

(b)Should costs on the undue influence issue be separated from costs on the testamentary capacity issue?

(c) Should the plaintiffs’ costs be met by the defendants and/or interested

parties or from the estate?

(d)Should the defendants’ costs be met from the estate either in part or whole?

(e) If the defendants’ costs are to be met from the estate, either wholly or in part, should those costs include the costs associated with their counsel, Mr Grant?

(f) Should the costs of the interested parties be met, wholly or in part, from the estate?

Costs categorisation

[5] The basis for the plaintiffs’ claim to have costs assessed on a 2C basis derives from Faire J’s minute of 31 March 2015 in which he described the case as a “complex defended proceeding” and specified costs category 2. I do not accept that Faire J’s description of the matter as a…

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 Farn v Loosley

Details

AGLC: Farn v Loosley [2017] NZHC 1951
Case: [2017] NZHC 1951
Decision Date: 16 August 2017

CaseChat Overview and Summary

The case of Farn v Loosley, which was heard and decided by Justice Courtney of the High Court of New Zealand on August 16, 2017, involved a dispute over the validity of a will. The plaintiffs, Evelyn Gwynne Farn and others, sought to recall the probate of the will of Allison Slater, who had passed away, on the grounds that she lacked testamentary capacity or was unduly influenced by the defendants, Jennifer and Robert Loosley, who were the executors of the will. The interested parties, Thomas and Nicholas Loosley, were also named in the suit as they stood to inherit under the will.

The primary legal issues the court had to decide were whether costs should be assessed on a 2B or 2C basis, whether costs on the undue influence issue should be separated from costs on the testamentary capacity issue, and how the costs incurred by the parties should be distributed. The court was also required to determine if the costs of the defendants' counsel should be met from the estate and whether the costs of the interested parties should be covered by the estate.

Justice Courtney ruled that the proceedings did not justify a 2C costs basis as the application to recall probate was relatively straightforward and fell within a narrow factual scope. The court also found that it was not necessary or appropriate to separate costs on the undue influence issue from those on the testamentary capacity issue, as the latter had consumed most of the time and cost in the proceeding. The court decided that the plaintiffs' costs should be met 80% by the estate and 20% by the defendants personally, due to the executors' secrecy about the will's terms. The defendants' costs were to be met 80% by the estate and 20% by the defendants personally. The court made no order as to costs in relation to the interested parties, as they were not separately represented. If the parties could not agree on the costs calculation, they were instructed to file memoranda, and the matter would be dealt with on the papers.

Orders