Hita v Hita - [2023] NZHC 3095

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-126

CIV-2023-419-066 [2023] NZHC 3095

IN THE MATTER of the Estate of EDWARD WILLIAM BENJAMIN HITA

BETWEEN

EMORA HITA

Plaintiff

AND

SAMANTHA JUNE URAIATA HITA

Defendant

Hearing: 24 July 2023

Counsel:

P A Depledge Defendant in person

Judgment:

3 November 2023

COSTS JUDGMENT OF ANDERSON J

This judgment was delivered by me on 3 November 2023 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.

……………………………… Registrar/Deputy Registrar

Solicitors: P A Depledge, Hamilton Copy to: Defendant

HITA v HITA [2023] NZHC 3095 [3 November 2023]

[1] This is a costs judgment following my substantive judgment concerning the will of Mr Edward Hita.1

[2] Edward died leaving five children, including Samantha and Emora. His will appointed Samantha as executor and left all of his estate to her.2 My substantive decision addressed the following claims by Emora:

(a)in CIV-2021-419-126 (the Will Proceeding), an application for recall of probate and for letters of administration to be granted in her favour on the basis that the will was executed under undue influence from Samantha;3 and

(b)in CIV-2023-419-066 (the Family Protection Proceeding), for orders under the Family Protection Act 1955 on the basis that Edward breached his moral duty and for the Court to remedy any inadequacy.

[3] Samantha was self-represented throughout. Emora is legally aided. She was represented by Mr Depledge.

[4] The Family Protection Proceeding was initially filed in the Family Court. Samantha applied to strike out both this and the Will Proceeding. Both strike-out applications were dismissed. The Family Protection Proceeding was later transferred from the Family Court to be heard together with the undue influence claim.

[5] During the hearing, I granted leave to add a secret trust claim to the Will Proceeding. This development came after I raised this as an issue with counsel. The hearing took one and a quarter days.

[6] Ultimately, I held that neither of the claims in the Will Proceeding were made out. I was satisfied that the will was not executed under Samantha’s undue influence. The fact that Edward left nothing to his other four children was an unexpected decision

1      Hita v Hita [2023] NZHC 2171 (the substantive decision).
2      To avoid confusion among family members with the same name, I refer to all members of the Hita family by their first names.
3      A claim in the Will Proceeding that the will was invalid was not pursued in evidence or at the hearing.

requiring scrutiny. However, the evidence demonstrated that Edward had left all his estate to Samantha on the assumption that she would do the right thing by her siblings.4

[7] I found that this was a moral, not trust obligation. The secret trust claim failed on that account and because the pleaded trust was that Samantha was required to distribute Edward’s estate to his children equally. The evidence supported only that Edward was leaving his estate for Samantha to…

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.

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Details

Case: [2023] NZHC 3095
Decision Date: 3 November 2023

CaseChat Overview and Summary

In Hita v Hita, Emora Hita pursued claims against her sister, Samantha Hita, who was the sole executor and beneficiary of their father, Edward Hita's estate. Emora sought recall of the probate of Edward's will and for letters of administration to be granted in her favour on the basis that the will was executed under undue influence from Samantha. She also sought orders under the Family Protection Act 1955, claiming Edward breached his moral duty to provide for her and her siblings. The substantive claims were heard in the High Court, and the Family Protection Act claim had initially been filed in the Family Court. Emora was legally aided, while Samantha was self-represented. The court dismissed the undue influence and secret trust claims but granted Emora $55,000 under the Family Protection Act. The matter then proceeded to a costs judgment.

The court had to determine which party should bear the costs of the proceedings and in what amount. The court considered the principles of costs in estate litigation, including the Re Paterson principles, which may displace the usual rule that costs follow the event. The court found that the litigation did not originate in the fault of the testator, nor was there sufficient and reasonable ground to question the execution of the will or the capacity of the testator. The court then assessed the costs based on the scale, considering Emora's partial success and her actual costs.

Ultimately, the court awarded Emora costs of $25,586.53, to be paid out of Edward's estate. The court rejected Samantha's submissions that costs should be limited to those incurred before the Family Protection Act claim was transferred to the High Court. The court also found that Emora was entitled to costs for the strike-out application, as directed by Gault J, despite her lack of success on the substantive claims. The court declined to make any order regarding the timing of the costs payment, considering it not the proper forum for such questions.

The final orders of the court were that costs and disbursements of $25,586.53 would be awarded to Emora and paid out of the Estate of Edward Hita.

Orders