Farquhar v Ellmers

[2014] NZHC 1872

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2012-463-000275 [2014] NZHC 1872

IN THE MATTER OF

the Estate of UNITY ANN ETERNA (also

known as UNITY ANN ELLMERS) of
Turangi, Retired, Radiographer, Deceased

IN THE MATTER OF

Rule 27.6 et seq of the High Court Rules

BETWEEN

IAN DONALD FARQUHAR Plaintiff

AND

MALCOLM ROSS ELLMERS Defendant

Hearing:	On the papers
Counsel:	J N Briscoe for Plaintiff G R Webb for Defendant
Judgment:	8 August 2014

JUDGMENT OF WILLIAMS J (Consent Orders and Decision as to Costs)

[1]      This matter has been referred to me by Associate Judge Christiansen.   It is unnecessary for me to refer to the lengthy background.  The parties are agreed that the application for probate in solemn form in relation to the deceased’s will dated

16 April 2008 be declined and that probate be granted instead in relation to the will of 1 July 2002.  I make those orders accordingly by consent.

[2]      The only remaining issue is as to costs.  The defendant asks that his costs be met by the plaintiff/executor personally and that the plaintiff/executor be required to carry his own costs as well.

[3]      The arguments are essentially that costs should follow the event and the defendant was successful, and secondly that this is one of the rare cases where the

FARQUHAR v ELLMERS [2014] NZHC 1872 [8 August 2014]

executor should not be entitled to have his costs met by the estate.  This, says the defendant, is because of the unreasonable and obdurate stance the executor took in relation to these proceedings.

[4]      According  to  the  Laws  of  New  Zealand,  Administration  of  Estates,  an executor who approves a will normally in solemn form will be entitled to costs from the  estate.1      But  executors  may be  refused  costs  or  required  to  pay costs  to  a successful party if it is proved that he or she must have known that the will could not be supported.   Unreasonable and obdurate conduct by the executor may disentitle access to estate funds and render the executor liable for costs for him or herself.

[5]      The question in this case is whether the executor here crossed that line.  I do not think he did.  On the contrary the executor appeared to adopt a position more closely akin to that of the defendant once a medical opinion was to hand, tending to suggest that the deceased lacked testamentary capacity.  Although the executor could have been more careful and thoughtful in seeking to propound the deceased’s 2008 will, in light of her known psychiatric difficulties, I accept that his stance could not be described as unreasonable.

[6]      The defendant will be entitled to costs of a category 2B basis.  The costs of the plaintiff may be met by the estate.

Williams J

Solicitors:

Davys Burton, Rotorua for Plaintiff

Nolans, Gisborne for Defendant

1      Laws of New Zealand Administration of Estates at [122]-[127].