Farn v Loosley

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.