Hilliau v Tu'ilotolava - [2018] NZHC 2286

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-002677 [2018] NZHC 2286

BETWEEN
CHARLES WINSTON HILIAU and

GABRIELLE JANE WAGNER Plaintiffs

AND

MELE FINAU TU’ILOTOLAVA and ELIZABETH CHARON MURRAY Defendants

Hearing: 9 August 2018

Appearances:

S R Morris/A A M Newfield for the Plaintiffs
P Moodley for the Defendants

Judgment:

31 August 2018

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on
31.08.18 at 3:30pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Morris Legal, Auckland
Brookfields Lawyers, Auckland

C W HILIAU and G J WAGNER v M F TU’ILOTOLAVA and E C MURRAY [2018] NZHC 2286 [31 August
2018]

Introduction

[1] The plaintiffs, as executors, have applied for probate in solemn form of the will of the deceased, Agnes Pui’i Hiliau (the deceased) dated 18 August 2015.

[2] The defendants oppose the plaintiffs’ application for probate on the basis that the deceased lacked testamentary capacity and that the August 2015 will was signed as a result of undue influence by the plaintiffs. The defendants counterclaim for probate of the deceased’s earlier will dated 17 September 2014.

[3] The defendants have applied for prospective costs orders that their costs in this proceeding, on an indemnity basis, as well as any costs the defendants may be ordered to pay the plaintiffs, be paid out of the estate of the deceased. The critical issues for determination are whether this is hostile litigation, and if so, whether this a case of exceptional circumstances in which it is appropriate to make a prospective costs award.

Factual background

[4] The first-named plaintiff, Charles Winston Hiliau (Mr Hiliau) is the biological nephew of the deceased and her adopted son. He and his brother George Hiliau were adopted by the deceased as adults.

[5] The first-named defendant, Mele Finau Tu’ilotolava (Ms Tu’ilotolava), was the deceased’s first cousin once removed. The second-named defendant, Elizabeth Charon Murray (Ms Murray), was a close friend of the deceased.

[6] The deceased was a devout Catholic who lived with Ms Tu’ilotolava’s family for some time in the 1960s before purchasing a property in Mt Eden, Auckland (the property).

[7] The deceased worshiped at the local St Joseph’s Catholic Parish, Grey Lynn, Auckland. In her various wills, the deceased expressed her intention to repay the assistance given to her by the Catholic church.

[8] The deceased signed a will on 27 September 2011, the key aspects of which were:

(a)An option to buy the property for either Mr Hiliau or his brother George or for Elsie Wong, all at market value;

(b)The establishment of the Agnes Hiliau Trust Fund for the purposes of education of the children of the families of the St Joseph’s Parish, education for the children of George and Mr Hiliau and education for other family members.

[9] Ms Tu’ilotolava is a solicitor. She prepared, on the deceased’s instructions, a will signed by the deceased on 5 May 2012. That…

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 Hilliau v Tu'ilotolava

Details

AGLC: Hilliau v Tu'ilotolava [2018] NZHC 2286
Case: [2018] NZHC 2286
Decision Date: 31 August 2018

CaseChat Overview and Summary

The case of Hilliau v Tu’ilotolava involved an application for a prospective costs order in a will dispute. The plaintiffs, as executors of the deceased's will, sought probate in solemn form, while the defendants opposed the application, contending that the deceased lacked testamentary capacity and that the will was signed as a result of undue influence. The defendants also sought to be granted probate of an earlier will. Additionally, the defendants applied for prospective costs orders that their costs in the proceedings, on an indemnity basis, as well as any costs they may be ordered to pay the plaintiffs, be paid out of the estate of the deceased.

The court was required to decide whether the litigation was hostile and if so, whether there were exceptional circumstances justifying a prospective costs award. The court considered the relevant legal principles, including the general principle that costs follow the event, and the principles set out in Re Paterson for costs in probate proceedings. The court also examined the framework set out by Kōs J in Woodward v Smith for determining whether a prospective costs order is appropriate in hostile litigation.

After considering the facts and submissions of both parties, the court concluded that the dominant nature of the litigation was hostile and that the application fell within the third category of the Re Buckton category. The court found that the defendants did not have a strong case, with no medical records supporting the claim of lack of testamentary capacity and no evidence of the deceased developing advanced dementia or any other significant cognitive disorder. The court also found that the claim of undue influence did not meet the high threshold required for success. The court was not satisfied that the Judge at the trial could properly exercise his or her discretion only by ordering the defendants’ costs be paid out of the trust estate. Therefore, the court concluded there was no basis to make a prospective costs award.

As a result, the defendants' application for a prospective costs order was dismissed. The court urged the parties to consider whether costs on this application should lie where they fall, given that the defendants brought their application in good faith and with a view to what they saw as carrying out a commitment to the wishes of the deceased. If costs could not be agreed, then memoranda were to be filed within 14 days.

Orders