Laery v Grout - [2014] NZHC 2495

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-485-002817 [2014] NZHC 2495

IN THE MATTER OF RENA FRANCES MANSON, deceased

UNDER

The Wills Act 2007, the Law Reform (Testamentary Promises) Act 1949 and Part 18 of the High Court Rules

BETWEEN

DESMOND PHILIP LAERY and SIMON CHARLES DAVID WEIL Plaintiffs/Applicants

AND

JENNIFER KAY GROUT
First Defendant/First Respondent

SARAH KAY GROUT
Second Defendant/Second Respondent

MARJORY HAMLIN (also known as
MARJORY VINET)

Third Defendant/Third Respondent

Hearing: 9 October 2014

Appearances:

S Clapham for Applicants
V Bruton for First Respondent

Judgment:

9 October 2014

ORAL JUDGMENT OF VENNING J

ON APPLICATION FOR DISCOVERY/ADJOURNMENT AND COSTS

Solicitors: Shieff Angland, Auckland TGT Legal, Auckland Wynyard Wood, Auckland
Alexander Dorrington, Auckland

Copy to: S Clapham, Auckland
V Bruton, Auckland
S Jefferson QC, Auckland
Deirdre A Watson, Auckland

LAERY v GROUT [2014] NZHC 2495 [9 October 2014]

Introduction

[1] The first respondent’s application seeks orders: (a) for discovery;
(b) to adjourn a fixture scheduled for 3 and 4 November 2013; and

(c) costs.

Background

[2] I take the background to these proceedings largely from the summary of a previous decision of this Court delivered on 11 August 2014.1

[3] The plaintiffs/applicants (Desmond Phillip Laery and Simon David Charles

Weil) are the named executors under a will executed by the deceased on 22 May

2007 (the 2007 will). Shortly before her death in October 2013, the deceased gave instructions for a new will. She died prior to executing that will.

[4] In these proceedings the plaintiffs seek a declaration, under s 14 of the Wills

Act 2007 (the Act), validating a 2013 document containing instructed changes to the

2007 will together with the file note of Mr Weil (together the 2013 documents) as recording the testamentary wishes of the deceased and as the valid will of the deceased.

[5] The first respondent, the applicant to the application before the Court, Jennifer Kay Grout, opposes the application to validate the 2013 documents as the last will of the deceased. She is the primary beneficiary under the 2007 will. She has also counterclaimed seeking an interpretation of the clause in the 2007 will, rectification of the 2007 will and, in the event that the 2007 will’s interpretation is not in her favour, or the 2013 documents are validated under s 14 of the Act, a claim
under the Law Reform (Testamentary Promises) Act 1949.

1 Laery v Grout [2014] NZHC 1881.

[6] In a minute of 30 July the Court recorded the parties had sensibly agreed that the s 14 application needs to be dealt with before the various counterclaims and other issues were resolved. On that basis that aspect of the proceedings was allocated the fixture for 3 and 4 November 2014 (two days allocated).

[7] In his decision delivered on 11 August 2014 Woolford J dealt with Ms Grout’s application for an order appointing Mr William Malcolm Patterson of Auckland, Solicitor, as the temporary administrator of the deceased’s estate under s 7 of the Administration Act…

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 Laery v Grout

Details

AGLC: Laery v Grout [2014] NZHC 2495
Case: [2014] NZHC 2495
Decision Date: 9 October 2014

CaseChat Overview and Summary

In the case of Laery v Grout, the High Court of New Zealand was tasked with determining the role and rights of the named executors under the will of a deceased individual, specifically whether they were required to deliver their files to the temporary administrator appointed by the court. The plaintiffs, Desmond Phillip Laery and Simon David Charles Weil, were the named executors under the 2007 will of the deceased, while Jennifer Kay Grout, the first respondent, opposed the application to validate a 2013 document containing instructed changes to the 2007 will. The primary legal issue the court had to decide was the role and status of the plaintiffs, given the appointment of Mr William Malcolm Patterson as the temporary administrator.

The court found that upon the appointment of Mr Patterson as the temporary administrator, he was entitled to administer the estate of the deceased, which included the files held by the plaintiffs on behalf of the deceased. The court acknowledged that while the plaintiffs were named as executors and trustees of the 2007 will and referred to as such in the 2013 documents, the appointment of Mr Patterson as administrator meant that they no longer had a role in making decisions regarding the discovery process. Therefore, the will and power of attorney files held by the plaintiffs should be delivered to Mr Patterson. The court also noted that any decision on privilege would be dealt with in accordance with the Evidence Act 2006.

As a result of the court's decision, the fixture scheduled for 3 and 4 November had to be vacated. The court directed Mr Patterson to make any application regarding privilege within 14 days of the delivery of the files to him. The costs of the application were to be borne by the applicant, Jennifer Kay Grout, but the issue of costs in relation to the quantum and incidence would be reserved until the outcome of the s 14 hearing.

Orders