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Loosley v Powell

Loosley v Powell

Case [2018] NZCA 73 28 March 2018

Testamentary Capacity

Costs

Appeal

Succession Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA168/2017
[2018] NZCA 73

BETWEEN	JENNIFER LOOSLEY AND ROBERT GEORGE LOOSLEY AS EXECUTORS OF THE ESTATE OF ALLISON SLATER Appellants
AND	KATHERINE ANNE POWELL, BENJAMIN EDWARD POWELL, BARBARA ANNE POWELL, JILL ROSEMARY ELEVELD AND MARK ELEVELD Respondents

Court:	French, Cooper and Asher JJ
Counsel:	A F Grant and H G Holmes for Appellants P J Morgan QC and W J Scotter for Respondents
Judgment: (On the papers)	28 March 2018 at 11:30 am

JUDGMENT OF THE COURT

The appellants and respondents are each entitled to costs for a standard appeal on a band A basis and usual disbursements, to be paid out of the estate. We certify for two counsel for each side.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

This Court, in its judgment of 2 February 2018, dismissed the appeal of the appellants Jennifer and Robert Loosley.[1] The High Court had recalled probate of a will made by Allison Slater on 2 May 2014, because she lacked testamentary capacity.[2] We said in relation to costs in this Court:[3]
[125] We received submissions on costs at the end of the hearing, at our request. Having reflected on the matter we think it only fair that the parties have the opportunity of addressing the question of costs in the light of this judgment. We invite submissions …
[1]Loosley v Powell [2018] NZCA 3.
[2]Farn v Loosley [2017] NZHC 317, [2017] 3 NZLR 383.
[3]Loosley v Powell, above n 1.
We have now received the submissions for the parties. Mr Morgan QC, for the respondents, seeks costs from the appellants in their personal capacity, rather than as executors. He contends they should be personally liable to pay costs on the appeal because they were effectively acting for their sons who are residuary beneficiaries, and not in their capacity as executors.
Mr Grant for the appellants resists this submission. He points out that such a result would be contrary to the decision of Courtney J as to costs in the High Court.[4] He submits that the appellants were carrying out their duties as executors when they resisted the claim and brought the appeal. We record that in both the oral and written submissions counsel have been seeking scale costs and not indemnity costs.
[4]Farn v Loosley [2017] NZHC 1951.
In her costs decision in the High Court Courtney J observed, on the issue of testamentary capacity, that the litigation was largely attributable to Allison’s own conduct.[5] In that context she clearly saw the appellants as acting as executors.[6] She stated:
[22] Mrs Loosley certainly had an interest in the proceeding as a beneficiary as well and would have been entitled to participate in the proceeding to advance that interest. But her participation as a defendant was advanced in tandem with her husband, who was not a beneficiary, and was consistent with their positions as executors. I am satisfied that Mr Grant’s representation…

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 Loosley v Powell

Details

AGLC: Loosley v Powell [2018] NZCA 73
Case: [2018] NZCA 73
Decision Date: 28 March 2018 at 11:30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Jennifer and Robert Loosley, as executors of the estate of Allison Slater, appealed a decision of the High Court that recalled the probate of a will on the basis of the will-maker's lack of testamentary capacity. The respondents, Katherine Powell and others, sought costs from the appellants in their personal capacity, arguing that the appellants were acting for their sons, who were beneficiaries, rather than as executors. The appellants, represented by Mr Grant, opposed this, maintaining that they were acting in their capacity as executors when they resisted the claim and brought the appeal.

The legal issues before the Court were whether the costs of the appeal should be paid by the appellants personally or out of the estate, and whether the appellants were acting in their capacity as executors when they resisted the claim and brought the appeal. The Court found that the appellants were acting in their capacity as executors and that the litigation was largely attributable to the will-maker's own conduct. The Court noted that the respondents sought scale costs, not indemnity costs.

The Court found that the costs of all parties should be payable from the estate, as the appellants were acting in their capacity as executors when they resisted the claim and brought the appeal. The Court applied the Re Paterson approach, which states that if there is sufficient and reasonable ground to question the execution of the will or the capacity of the testator, the losing party may be relieved from the costs of their successful opponent. The Court found that there were sufficient and reasonable grounds to pursue the litigation and that the appellants were acting in a manner consistent with their positions as executors.

The Court dismissed the respondents' appeal against the High Court's costs judgment, and the appellants and respondents are each entitled to costs for a standard appeal on a band A basis and usual disbursements, to be paid out of the estate. The Court certified for two counsel for each side.

Orders