Hita v Hita - [2023] NZHC 752

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-126

[2023] NZHC 752

UNDER Part 18 High Court Rules, equity

IN THE MATTER OF

an application for recall of probate

AND IN THE MATTER OF

an application to grant letters of

administration in solemn form in respect of the estate of EDWARD WILLIAM
BENJAMIN HITA, late of Te Kuiti, deceased

BETWEEN

EMORA HITA

Plaintiff

AND

SAMANTHA JUNE URAIATA HITA, sole

executor to the estate of EDWARD
WILLIAM BENJAMIN HITA (deceased),

administrator to the estate of NGAPOKO HITA (deceased)

Defendant

Hearing: 7 February 2023

Appearances:

P Depledge for the Plaintiff Defendant in person

Judgment:

5 April 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 5 April 2023 at 2:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

HITA v HITA [2023] NZHC 752 [5 April 2023]

[1] The defendant, Ms Samantha Hita,1 applies to strike out the claim by her older sister Ms Emora Hita in relation to the will of their late father, Mr Edward William Benjamin Hita (the Will).

[2] Emora’s claim is that the Will was brought about by Samantha’s undue influence and was not properly executed.2 Her claim seeks orders:

(a)for recall of probate;

(b)setting aside the Will; and

(c)for grant of letters of administration.

[3]Samantha seeks to strike out the claim on the ground that it is fraudulent.

Background

[4]Mr Hita and his wife had five children together.

[5] On 10 February 2019, Mrs Hita died. Mr and Mrs Hita had been married for over 40 years.

[6] On 18 May 2019, Mr Hita signed the Will. The Will appointed Samantha as sole executor and left Mr Hita’s entire estate to her.

[7] The statement of claim pleads that Samantha drafted the Will for Mr Hita without the assistance of legal representation, that her influence was to have Mr Hita execute a will which favoured her to the exclusion of Mr Hita’s other children, and that Mr Hita was vulnerable having recently lost his partner and relied on Samantha for advice and care.

[8]On 24/25 December 2020, Mr Hita died.

1 I will use first names not for informality but for ease of differentiation.
2 I was advised there is a separate Family Protection Act proceeding in the Family Court, and that judgment was pending in relation to an application to dismiss that proceeding.

On 1 March 2021, the Will was admitted to probate.

[10] Mr Hita’s estate consisted of a property at 40 Awakino Road, Te Kuiti, Kiwisaver funds and Holden Rodeo and Subaru Legacy vehicles.

Approach on strike out applications

Rule 15.1(1) of the High Court Rules 2016 provides:

15.1 Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay;…

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 752
Decision Date: 5 April 2023

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application by Samantha Hita to strike out a claim brought by her sister, Emora Hita. Emora sought to recall the probate of their father’s will, alleging that the will was procured through undue influence and was not properly executed. Her claim sought orders for the recall of probate, setting aside the will, and the grant of letters of administration. Samantha argued that Emora's claim was fraudulent and sought to have it dismissed under the High Court Rules on the grounds of no reasonable arguable cause of action, potential abuse of process, or being frivolous or vexatious.

The court considered the principles governing strike out applications, noting that such applications are to be made sparingly and only in clear cases where the court has sufficient material. The court recognised that the allegations of fraud, if proven, could vitiate prior judgments but held that it was not the function of the court on this interlocutory application to assess the merits of the allegations of fraud. The court found that Emora's claim, which alleged undue influence and irregularities with the will, did disclose a reasonably arguable cause of action, and it could not be concluded that the claim was an abuse of process.

Accordingly, the court dismissed Samantha’s strike out application. The plaintiff was awarded costs and disbursements as fixed by the Registrar. The court directed the registry to convene a case management conference to timetable the proceeding for a substantive hearing.

Orders