Farn v Loosley - [2015] NZHC 1045

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-485-6345 [2015] NZHC 1045

UNDER
the Administration Act 1969 and the High

Court Rules

IN THE MATTER

of the estate of Allison Shirley Slater

BETWEEN

EVELYN GWYNNE FARN, KATHERINE ANNE POWELL, BENJAMIN MATTHEW POWELL, BARBARA ANNE POWELL, JILL ROSEMARY ELEVELD AND MARK ELEVELD

Plaintiffs

AND

JENNIFER RUTH LOOSLEY AND ROBERT GEORGE LOOSLEY Defendants

AND

THOMAS ALEXANDER LOOSLEY AND NICHOLAS EDWARD LOOSLEY Interested Parties

On the papers

Counsel:

WJ Scotter for plaintiffs
AF Grant for defendants

Judgment:

19 May 2015

JUDGMENT OF FAIRE J

This judgment was delivered by me on 19 May 2015 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Harkness Henry, Hamilton
Duthie Whyte, Auckland

Farn v Loosley [2015] NZHC 1045 [19 May 2015]

The proceeding

[1] In this proceeding the plaintiffs seek an order recalling probate of a will dated

2 May 2014 and granted to the defendants on 11 June 2014.

The agreed issues

[2] The parties identify two issues requiring determination in this proceeding, namely:

(a) Was the will signed by Allison Shirley Slater (deceased) on 2 May

2014 made by her at a time when she lacked testamentary capacity?

(b)Alternatively, was the will made by Allison Shirley Slater under undue influence on the part of Jennifer Ruth Loosley, Robert George Loosley, Thomas Alexander Loosley or Nicholas Edward Loosley?

Pre-trial direction

[3] At a case management conference on 31 March 2015, counsel raised an issue as to where the onus of proof lies in this case. Counsel recognised that determination of that issue affects who has the right to begin. They request a ruling pursuant to r 7.8(3) of the High Court Rules.

[4] I set a timetable for the exchange of submissions on the issue. They have been filed. I recorded in the minute issued on 31 March 2015 that I would issue a ruling based on the papers unless further clarification was required, in which case an oral hearing would be scheduled. I am satisfied that the matter can be dealt with on the papers.

The plaintiffs’ contentions

[5] I intend to briefly summarise the contentions of the plaintiffs and the defendants. I am grateful to counsel for the memoranda and reference to authorities that they have provided. This short summary certainly does not do justice to the

matters advanced to the Court but, at least, sets out the precise approach adopted by each.

[6] For the plaintiffs, Mr Scotter submitted:

(a) That notwithstanding the grant of probate the onus of proof of proving testamentary capacity remains with the defendant executors;

(b) That on the question of undue influence the onus is on the plaintiffs.

The defendants’ contentions

[7] Mr Grant submitted:

(a) The initial onus of proof lies on the party making an affirmative assertion: in this case, the plaintiffs;

(b)As the plaintiffs have not pleaded that the will was either not duly executed or not rational on its face, the presumption of sanity applies…

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 [2015] NZHC 1045
Case: [2015] NZHC 1045
Decision Date: 19 May 2015

CaseChat Overview and Summary

The plaintiffs in the case of Farn v Loosley sought an order recalling the probate of a will dated 2 May 2014, which had been granted to the defendants on 11 June 2014. The primary legal issues before the court were whether the will was signed by the deceased, Allison Shirley Slater, when she lacked testamentary capacity and whether the will was made under undue influence by certain interested parties. The plaintiffs argued that the onus of proving testamentary capacity remained with the defendant executors, while the defendants contended that the initial onus of proof lies with the party making an affirmative assertion, in this case, the plaintiffs. The court considered the issue of where the onus of proof lies in this case, specifically whether the plaintiffs or the defendants should begin. The court determined that the initial onus lies with the plaintiffs, and therefore, they must begin. The court also noted that the burden of proving undue influence lies with the plaintiffs. The court reserved costs and scheduled a further case management conference to proceed with the case.

The High Court of New Zealand Auckland Registry ruled that the plaintiffs must open in respect of both causes of action in the case of Farn v Loosley. The court found that the initial onus lies with the plaintiffs, and therefore, they must begin. The court determined that the burden of proving undue influence lies with the plaintiffs, and the burden of proving testamentary capacity shifts to the executors if a sufficient doubt is raised. The court reserved costs and scheduled a further case management conference to proceed with the case. This ruling clarifies the initial onus of proof in the case and sets the stage for further proceedings.

Orders