Hita v Hita - [2023] NZHC 2171

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 2171

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

Appearances:

P A Depledge Defendant in person

Judgment:

15 August 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 15 August 2023 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.

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

Solicitor: P A Depledge, Barrister, Hamilton Copy to: Defendant

HITA v HITA [2023] NZHC 2171 [15 August 2023]

Table of Contents

Para No

Introduction[1]

Background[3]

Witnesses[16]

Undue influence [18]

Evidential presumption[23]

Contextual evidence[31]

Circumstances around the will[43]

Secret Trust[52]

What is a secret trust?[52]

No secret trust established[58]

Events after Edward’s death[63]

Samantha’s understanding of the effect of the will[76]

Conclusion[88]

Family Protection Act 1955 [89]

Emora’s conduct while she was living with Edward[100]

Conclusion[105]

Introduction

[1] Edward Hita had five children: Emora, Gregory, George, Samantha and Mihaka.1 He died in December 2020. His will, dated 18 May 2019, was granted probate on 1 March 2021. This will appointed Samantha as executor and left all of his estate to her. The plaintiff, Emora, advances two applications:

(a)in CIV-2021-419-126, 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; and

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

[2] The latter application was transferred from the Family Court, and both were heard together before me. During the hearing, I granted leave for an additional cause of action to be added to the statement of claim in CIV-2021-419-126. This is a claim based in equity (secret trust) that Edward’s intention was that Samantha hold his estate on trust for Samantha and her siblings equally, rather than receiving the estate beneficially. Samantha opposes all three of the claims.

Background

[3] Edward and his wife Ngapoko migrated from Rarotonga to New Zealand in 1980. Together they had five children, all now aged between 30 and 41. Ngapoko had two older children from a different relationship, Caroline and Pati.

[4] In February 2019, Ngapoko passed away. She died without having made any will and with a number of bills outstanding. Ngapoko had around $22,000 in her KiwiSaver account that Edward was unable to access without letters of administration being granted. This placed him under considerable pressure in meeting financial obligations. Edward made an application for the grant of letters of administration in

1 To avoid confusion among family members with the same name, I refer to all members of the Hita family by their first names.

October 2019, but this was rejected for filing due to various issues with the accompanying…

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 2171
Decision Date: 15 August 2023

CaseChat Overview and Summary

The case of Hita v Hita involved a dispute over the will of Edward Hita, who left all his estate to his daughter Samantha. Edward's other daughter, Emora, sought to recall the probate of the 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. Emora also sought orders under the Family Protection Act 1955, alleging that Edward breached his moral duty by excluding her from the will. The court dismissed Emora's undue influence claim, finding that Samantha did not exercise undue influence over her father when he made his will. The court also rejected Emora's secret trust claim, stating that there was insufficient evidence to conclude that Edward intended to leave his estate to Samantha subject to a trust. However, the court found that Edward breached his moral duty under the Family Protection Act 1955 by completely excluding Emora from the will and awarded her $55,000, which equates to approximately 15 per cent of the net estate. The court directed the parties to file submissions on what costs orders are appropriate within 14 days.

Orders