MAURICE RICHARD MERVYN ANDREWS AND PUBLIC TRUST

[2024] NZHC 3235

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-118

[2024] NZHC 3235

IN THE MATTER

of the Estate of Mervyn Stanley John Andrews

BETWEEN

MAURICE RICHARD MERVYN ANDREWS

Plaintiff

AND

PUBLIC TRUST

Defendant

Hearing:

On the papers

Appearances:

Plaintiff in person

G M Cairns for Defendant

Judgment:

4 November 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 4 November 2024 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ANDREWS v PUBLIC TRUST [2024] NZHC 3235 [4 November 2024]

[1]                  These are proceedings purporting to challenge the grant of probate in solemn form of the last will of Meryn Stanley John Andrews (the deceased) who died on or about 20 November 2021.   The claim is brought by one of the deceased’s sons,     Mr Andrews.

[2]                  The Public Trust, as executor, applied to the Court for a grant of probate in solemn form of the deceased’s last will dated 5 July 2019 or, in the alternative, of his previous will dated 20 March 2009. The application was brought as some concerns had been raised about the deceased’s capacity when he executed the 2019 will and Mr Andrews had registered a caveat against the grant of probate.

[3]                  The plaintiff, Mr Andrews, was served with the Public Trust’s application for probate in solemn form as were all other potentially affected beneficiaries. He acknowledges this in his statement of claim but says he decided not to file a statement of defence, saying that “he had corresponded with a lawyer, the lawyer and the plaintiff had discussed the financial amount at stake and that the lawyer had congratulated the plaintiff on the plaintiff’s decision to move on with the plaintiff’s life after the plaintiff informed the lawyer that he was not going to file a statement of defence.”

[4]                  The matter was listed for a formal proof hearing and, on 17 May 2024, Preston J issued a judgment granting the application for probate, in solemn form of the deceased’s will dated 5 July 2019.1

[5]                  She granted leave to Mr Andrews to make submissions on costs and that was dealt with in a separate judgment where costs were awarded against Mr Andrews in the sum of $4,182.50.2

The current proceedings

[6]                  Mr Andrews has now filed the present statement of claim seeking to challenge the grant of probate on two bases. First, he claims that his sister, Theresa McKay exerted undue influence upon the deceased and second, he seeks recall of probate. The grounds for seeking recall are unclear. Mr Andrews says that “[t]he ambiguity of the

1      Public Trust v Andrews [2024] NZHC 1236.

2      Public Trust v Andrews [2024] NZHC 1240.

Public Trust, in response to the plaintiff’s request for information and queries, has formed a major component of the plaintiff’s communication with Public Trust,” and he says that the costs incurred, and to be incurred if the claim progressed, [were] a significant deterrent to the plaintiff pursuing his claim and filing a statement of defence.”

The Public Trust’s position

[7]                  On receipt of the statement of claim, the Public Trust has filed a memorandum. In it counsel for the Public Trust, Mr Cairns, points out the history of the matter, including the fact the plaintiff did not file a statement of defence. Mr Cairns notes that because probate was granted in solemn form “it is not susceptible to a recall … except in the case of fraud, which is not pleaded.” There is no application made to set aside the judgment of 17 May 2024.

[8]                  The Public Trust notes that it is “mindful of costs” and would not normally actively take a litigation position in the case but says the point of the solemn form application was to provide all relevant information to the Court so the Court could decide which will was entered to probate. In the circumstances, the Public Trust advised it is not intending to file a statement of defence but if the Court indicates that the Public Trust should engage, then it would apply to strike out the claim on the basis it is an abuse of process. However, it notes the Court can do so on its own motion.

[9]                  Since receiving that memorandum, the Court has also received a memorandum from Mr Andrews responding to the Public Trust’s memorandum. In it he points out that there were three bases on which he challenged the last will; testamentary capacity, undue influence  and  testamentary  promise.  However,  in  a  letter  to  him  dated 25 November 2022 the Public Trust says it had “no evidence on file as to undue influence.” In his memorandum, Mr Andrews appears to maintain his stance that he can now pursue a second challenge to the validity of the will including on the ground it was procured through undue influence. He refers obliquely to receiving legal advice on the ability to do this, although does not specify on what basis he considers he is able to do so. He seems simply to assert that the process was “unfair to the Plaintiff and … filled with ambiguity”.

[10]              However, nothing in the pleadings, or in Mr Andrew’s subsequent memorandum, identifies a proper ground on which a will which has been proved in solemn form, could be revoked. As is stated in Tristram & Coote’s Probate Practice:3

The difference in effect between a probate which has been granted in common form, and a probate which has been granted in solemn form, is that the former is revocable, and the latter, provided proper notice has been given to all persons interested, is, subject to two exceptions, irrevocable.

(footnote omitted)

[11]              The two exceptions are if the existence of a will of a later date is discovered subsequently and fraud.

[12]              Here, Mr Andrews suggests that his concerns about undue influence were not addressed by the Court. However, having chosen not to participate in the application and adduce evidence on that issue, he cannot now subsequently raise it. The fact that, as the Public Trust properly recognised, there was some ambiguity as to the record relating to the deceased’s testamentary capacity was the very reason why probate in solemn form was sought. That too does not provide a ground supporting revocation. Finally, Mr Andrews’ explanation that the risk of significant costs being incurred was a deterrent also cannot undermine the finality of the grant of probate in solemn form.

[13]              Accordingly, as nothing in Mr Andrews’ statement of claim or subsequent memorandum discloses a reasonably arguable ground for revoking the grant of probate in solemn form, I am satisfied it is appropriate to strike out the statement of claim under r 15.1 of the High Court Rules on the grounds that:

(a)it discloses no reasonably arguable cause of action; and

(b)is otherwise an abuse of the process of the Court.

3      Tristram & Coote’s Probate Practice 30th Ed. Lexis Nexis Butterworths, London, 2006 at [26.03].

[14]              Given I have made this decision without formally hearing from the parties, (although Mr Andrews was on notice that the Public Trust thought it appropriate that the Court strike it out on its own motion, and provided a response), I record that    Mr Andrews has a right of appeal of this decision to the Court of Appeal.

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt

Copy to: Plaintiff