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Kingsford v Mathers

Kingsford v Mathers

Case [2025] NZHC 857 10 April 2025

Civil Litigation & Procedure

Probate Law

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2023-470-53 [2025] NZHC 857

BETWEEN GLORIA JUDITH KINGSFORD as
Executor of the Estate of Cedric Thomas Mathers
First Plaintiff
GLORIA JUDITH KINGSFORD
Second Plaintiff

ANDJACQUELINE SALLY MATHERS, JOCELYN PAULINE MATHERS and
DIANNE PATRICIA WEISSENBORN as
beneficiaries of the Will of Cedric Thomas Mathers
Defendants

Hearing: On the papers

Counsel: S T Scott and G R Keystone for Plaintiff
N S Elsmore for Estate of Cedric Thomas Mathers A M Halloran and R S Brinkworth for Defendants

Judgment: 10 April 2025

JUDGMENT OF O’GORMAN J

[as to costs]

This judgment was delivered by me on 10 April 2025 at 10 am pursuant to r 11.5 of the High Court Rules 2016.

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

Solicitors/Counsel:
S T Scott, Tauranga Kaimai Law, Bethlehem N S Elsmore, Tauranga
Rejthar Stuart Law, Tauranga Pitt & Moore, Nelson

KINGSFORD v MATHERS [2025] NZHC 857 [10 April 2025]

Introduction

[1] In this proceeding, the plaintiffs sought the grant of probate in solemn form for a will dated 18 December 2020 made by Cedric Thomas Mathers. The application was brought by the first plaintiff in her capacity as the named executor, and by the second plaintiff in her private capacity to represent her personal interests and to respond to allegations of undue influence.

[2] The defendants were the three daughters of Mr Mathers who were named as beneficiaries under the 2020 will. They had lodged a caveat against the grant of probate, and they opposed Ms Kingsford’s application for the grant of probate in respect of the 2020 will on the grounds of lack of testamentary capacity and undue influence. Instead, they sought the grant of probate for the previous will executed by Mr Mathers on 19 October 2011.

[3] In a judgment dated 30 August 2024,1 I made the orders sought by the defendants, declaring the 2020 will invalid on the grounds of lack of testamentary capacity and/or that it was procured by undue influence. I instead granted probate of the will dated 19 October 2011, appointing Mr Curtis of Waihi as the administrator of the estate.

[4] I set a timetable for memoranda to be filed on the issue of costs (if costs could not be agreed). Unfortunately, those memoranda were not referred to me for determination until 31 March 2025.

Party submissions on costs

[5] The defendants have sought costs on the basis that they were the successful parties and costs follow the event.

[6] Their primary position is that they are entitled to indemnity costs under r 14.6(4) of the High Court Rules 2016 because of the findings of undue influence made against Ms Kingsford. The defendants say this shows she was motivated by financial gain and acting in breach of trust and confidence obligations owed to

1 Kingsford v Mathers [2024] NZHC 2470 [Judgment].

Mr Mathers. Furthermore, her conduct increased the litigation costs incurred by the defendants. Their actual costs were $205,377.40 plus disbursements…

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 Kingsford v Mathers

Details

AGLC: Kingsford v Mathers [2025] NZHC 857
Case: [2025] NZHC 857
Decision Date: 10 April 2025

CaseChat Overview and Summary

The High Court was asked to determine the costs of a proceeding relating to the grant of probate for a will. The plaintiffs, including Gloria Judith Kingsford as the named executor, sought the grant of probate for a will dated 18 December 2020 made by Cedric Thomas Mathers. The defendants, the three daughters of Mr Mathers, opposed the grant of probate in respect of the 2020 will on the grounds of lack of testamentary capacity and undue influence, and sought the grant of probate for a previous will dated 19 October 2011. The defendants were successful in their opposition, and the Court granted probate of the 2011 will.

The legal issues before the Court included whether the defendants were entitled to indemnity costs, whether the plaintiffs' conduct justified an uplift in costs, and the appropriate calculation of 2B costs. The defendants argued that they were entitled to indemnity costs due to the finding of undue influence against Ms Kingsford, and that the plaintiffs' conduct increased their costs. They also sought costs on a 2B basis with a 50 per cent uplift due to the plaintiffs' non-compliance with the Court timetable and orders. The plaintiffs opposed any uplift in costs, arguing that the estate had a reasonable basis for applying for probate and that some delays were outside their control.

The Court considered the principles governing the award of costs in contested will proceedings, including that costs generally follow the event and that indemnity costs are only appropriate in exceptional circumstances. The Court found that Ms Kingsford’s stance was not so unjustified as to warrant indemnity costs, and that while the plaintiffs' conduct did increase the defendants' costs, a 50 per cent uplift was justified. The Court also made minor adjustments to the defendants’ calculation of 2B costs, reducing the total sum by 1.6 days. The Court concluded that the defendants were entitled to costs of $98,946 plus disbursements of $20,882.16 against Ms Kingsford personally.

The Court awarded costs in favour of the defendants, the three daughters of Mr Mathers, against Ms Kingsford personally in the sum of $98,946 plus disbursements of $20,882.16. This was not to be deducted from the estate. The Court’s decision reflects the principles of cost allocation in contested will proceedings, taking into account the complexity of the proceeding, the parties' conduct, and the specific circumstances of the case.

Orders