Kelsey v Taniora - [2018] NZHC 1727

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-000062

CIV-2017-419-000065 [2018] NZHC 1727

BETWEEN
KATARINA TAKIORA KELSEY

Applicant

AND

MICHAEL JOHN TANIORA

Respondent/Defendant

Hearing:
22 February 2018; submissions dated 2 March 2018;

memorandum dated 28 June 2018; submissions by telephone on 11 July 2018 (J Niemand)

Appearances:

D Mayall for the Applicant

No appearance by or for the Respondent/Defendant

Judgment:

12 July 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 12 July 2018 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Niemand Peebles Hoult, Hamilton

Party:
M Taniora

KATARINA TAKIORA KELSEY v MICHAEL JOHN TANIORA [2018] NZHC 1727 [12 July 2018]

[1] Katarina Kelsey applies to recall probate and to sustain a caveat, both applications arising out of the death of Lawrence Perkinson (the deceased) on 3 January 2010. The applications have proceeded by way of formal proof. Both applications are, however, legally complicated and the facts unclear, so that further enquiries have had to be made of counsel and further submissions received.

[2]The current proceedings are:

(a)a proceeding by way of statement of claim in CIV-2017-419-065 to recall a grant of probate (made under CIV-2010-419-141 in respect of Mr Perkinson’s will dated 28 February 2008 (the old will)); and

(b)an application in CIV-2017-419-062 to sustain caveat number 8806926.1 lodged by the applicant on 12 July 2011 against the title of a property owned by the deceased at 2 Fuller Street, Ngaruawahia comprised in computer register SA509/288.

[3] Ms Kelsey is a stepdaughter of the deceased. Her mother, Mere Perkinson, was in a relationship with the deceased from 2004 until she died in 2008. The deceased had signed the old will shortly before Mere died, leaving “all his assets and possessions” to Mere.

[4] Mr Taniora is the respondent/defendant in these proceedings in his capacity as the current executor of the deceased’s estate under the old will. He was a friend of the deceased.

[5] Mr Taniora obtained a grant of probate in respect of the old will on 22 March 2010.

[6] Immediately following Mr Perkinson’s death, a note was found dated 4 December 2009, and signed by the deceased. It provided:

I Lawrence Perkinson of 2 Fuller Street, Ngaruawahia, wish to honour my promise to Mere Rina Perkinson and that this home and contents to be given to her first grandchild Olivia Paige and youngest daughter Jazmine Clark Cook to be shared equally. I wish that Katarina Kelsey of 8 Front Miranda

Road, Waitakaruru have sole responsibility of all and any transactions associated with this home if she so wishes.

[7] On 12 July 2011, Ms Kelsey lodged a caveat against the Ngaruawahia property, as legal guardian of her daughter, Olivia Paige “a beneficiary in the estate” of the deceased. Ms Kelsey does not appear to have taken any other steps at that time.

[8]There was then a long period of inactivity, the reason for which is…

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 Kelsey v Taniora

Details

AGLC: Kelsey v Taniora [2018] NZHC 1727
Case: [2018] NZHC 1727
Decision Date: 12 July 2018

CaseChat Overview and Summary

Katarina Kelsey has applied to recall a grant of probate in relation to the will of Lawrence Perkinson and to sustain a caveat lodged by her against a property owned by the deceased. The respondent/defendant, Michael John Taniora, is the executor of the estate under the will. The deceased had signed a new will shortly before his death, which left certain assets to his stepdaughter, the applicant. The executor had obtained a grant of probate in respect of the earlier will. The court was required to decide whether the grant of probate should be recalled to give effect to the deceased's later intentions and whether the caveat should be sustained. The court found that the grant of probate should be recalled as the new will was dated later than the will of which probate had been granted, and the application was unopposed. The court found that the caveat should lapse as it had not been proved on the balance of the probabilities that Olivia, the applicant's daughter, had a caveatable interest in the property. The court found that a legatee under a will does not acquire an immediate beneficial interest in property devised to them on the death of the testator. Instead, the executor takes full ownership on the death of the testator, without distinction between legal and beneficial interests. The court found that the administration of the old will was not complete, and therefore, the caveat must lapse. Orders were made for the recall of probate in respect of the deceased's will dated 28 February 2008, and that caveat number 8806926.1 lodged by the applicant against the title of the property at 2 Fuller Street, Ngaruawahia, in computer register SA509/288 shall lapse.

Orders