French v Black - [2015] NZHC 2519

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1004 [2015] NZHC 2519

UNDER the Family Protection Act 1955

BETWEEN

CEDRIC DUDLEY FRENCH First Plaintiff

SYLVIA JEAN WAREHAM Second Plaintiff

AND

CAROLE ANN BLACK AND ROBERT VICTOR EADES

AS TRUSTEES OF THE ESTATE OF LILLIAN ALMA FRENCH Defendants

Hearing: 13 October 2015

Appearances:

S P Chandra for Plaintiffs
A MacMillan for Carole Ann Black, Defendant

Judgment:

13 October 2015

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Turner Hopkins (S P Chandra) Auckland for Plaintiffs
Barbara Knowles Law, Mairangi Bay, Auckland, for Carole Ann Black, Defendant

Copy for:
Alison MacMillan, Barrister, Albany, Auckland, for Carole Ann Black, Defendant

FRENCH v BLACK AND EADES [2015] NZHC 2519 [13 October 2015]

[1] This proceeding concerns the estate of Lillian Alma French who died on

21 December 2012. She was a widow. She had three children - the plaintiffs, Cedric Dudley French and Sylvia Jean Wareham, and Carole Ann Black, one of the executors and also a beneficiary.

[2] Mrs French left an estate of about $1,200,000. Part of that estate is a house in Northcote, Auckland, worth about $700,000. The rest appears to be funds. In her last will of April 2006 she left the Northcote property to Carole, left her engagement ring to Carole’s daughter, and divided the residue, four shares to Carole, four shares to Cedric and two shares to Sylvia. Probate was granted in April 2014. The executors are Carole Black and an Auckland solicitor, Mr Eades. In a previous will, Mrs French had left the Northcote property to Carole and Cedric equally, and the residue was divided 4:4:2 as with the 2012 will.

[3] In April 2014, Mr French and Mrs Wareham began a family protection proceeding in the Family Court. At the outset, each swore an affidavit. In the present application Mrs Black applies to strike out certain paragraphs in Mr French’s affidavit of 15 April 2014 and related annexures, and certain paragraphs in Mrs Wareham’s affidavit and related annexures.

[4] This proceeding was transferred from the Family Court to the High Court in about June 2015. The reason for the transfer was that Mr French and Mrs Wareham wanted to expand their claims. They wanted probate revoked on the grounds of alleged undue influence on the part of Carole Black, and alleged lack of testamentary capacity of Mrs French. The Family Court does not have a probate jurisdiction.

[5] While the proceeding was in the Family Court, counsel for Mrs Black wrote to the plaintiffs’ lawyers taking issue with the contents of the affidavits which Mr French and Mrs Wareham had filed at the outset of the proceeding. The Family Court Rules allow applications to be made for pretrial rulings on admissibility of evidence.1 While the proceeding was pending in the Family Court, Mrs Black did
not make any application under r 170. The rules for admissibility of evidence in

1 Family Court Rules 2002, r 170.

family protection claims are the same in…

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 French v Black

Details

AGLC: French v Black [2015] NZHC 2519
Case: [2015] NZHC 2519
Decision Date: 13 October 2015

CaseChat Overview and Summary

The case of French v Black concerns the estate of Lillian Alma French, who passed away in December 2012, leaving an estate of approximately $1.2 million, including a house in Northcote, Auckland, valued at about $700,000. The plaintiffs, Cedric Dudley French and Sylvia Jean Wareham, who are Lillian's children, initiated family protection proceedings against Carole Ann Black, one of the executors of Lillian's will and a beneficiary. The plaintiffs sought to revoke the probate of the will, alleging undue influence by Carole Black and the lack of testamentary capacity on Lillian's part. The case was transferred from the Family Court to the High Court due to the Family Court's lack of probate jurisdiction. Carole Black applied to strike out certain paragraphs in the affidavits of the plaintiffs, arguing they contained inadmissible hearsay evidence.

The primary legal issue before the court was whether it should entertain pretrial objections to the admissibility of evidence in civil proceedings. The High Court Rules do not explicitly provide for pretrial rulings on the admissibility of evidence in civil cases, unlike the Family Court Rules. Associate Judge Bell considered the general practice of leaving objections to evidence until the trial itself and weighed the potential benefits and drawbacks of pretrial rulings. While acknowledging the inherent jurisdiction of the court to control its procedure and the potential for interlocutory challenges to add time and expense, Associate Judge Bell concluded that the application to exclude evidence should be dismissed. The court found that the evidence in question was unlikely to be of significant importance at the trial, and its admissibility would be better assessed by the trial judge.

Associate Judge Bell declined to make pretrial rulings on the admissibility of evidence, emphasizing the general practice of leaving such decisions for the trial itself. The court set deadlines for further evidence exchange and ruled that the plaintiffs were entitled to costs on a category 2 basis for the application. The case remains ongoing, with the next hearing scheduled for May 2016.

Orders