Morris v Halpin
[2025] NZCA 223
•9 June 2025 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA798/2024 |
| BETWEEN | RICHARD JOHN STAFFORD MORRIS |
| AND | SALLY-ANNE STAFFORD HALPIN, DAVID CHRISTOPHER STAFFORD MORRIS AND TIMOTHY HARRY STAFFORD MORRIS |
| AND | CHRISTOPHER ROBERT DARLOW AND DAVID ROBERT APPLEBY AS EXECUTORS OF THE ESTATE OF BARBARA MORRIS |
| Court: | French P and Hinton J |
Counsel: | P J Napier and K Eastwood for Applicant |
Judgment: | 9 June 2025 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal the decision of the High Court declining to strike out parts of the first respondents’ statement of claim is granted.
BThe appeal is to be allocated an urgent hearing date before a divisional court.
CThe costs of this application are reserved to be determined as part of the costs on disposition of the appeal.
____________________________________________________________________
REASONS OF THE COURT
(Given by French P)
Introduction
Mr Morris is the defendant in High Court proceedings issued against him by his three siblings, the first respondents. They are seeking to set aside probate granted in respect of their late mother’s will and codicil, which they contend disproportionately benefited Mr Morris at their expense. The will was signed in May 2014 and the codicil in June 2019. The mother died in August 2021.
The statement of claim pleads two causes of action in relation to the 2019 codicil, namely undue influence by Mr Morris and lack of testamentary capacity on the part of their mother. The first respondents have also applied for the Court to exercise its jurisdiction under s 14 of the Wills Act 2007 and validate a draft 2018 will said to have been prepared in accordance with their mother’s instructions but never formally executed.
The matter for determination by us concerns certain paragraphs in the statement of claim relating to the undue influence cause of action. Mr Morris applied in the High Court to have the paragraphs struck out. The application was declined by Associate Judge Taylor.[1] Dissatisfied with that outcome, Mr Morris now seeks leave to appeal part of the Judge’s decision. Leave from this Court is required because the decision being challenged is an interlocutory decision[2] and leave was declined in the High Court.[3]
[1]Halpin v Darlow [2024] NZHC 894 [judgment under appeal].
[2]Senior Courts Act 2016, s 56(3).
[3]Halpin v Darlow [2024] NZHC 3352.
In order to obtain leave, Mr Morris must satisfy us that the proposed appeal raises an arguable issue of sufficient private or public importance that warrants the cost and the inevitable delay to the substantive proceeding caused by an appeal.[4] The threshold is well-established as being a high one.[5]
[4]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
[5]At [6(a)].
The application is opposed by the first respondents. They contend the Judge’s decision does not contain any arguable error and that the proposed appeal is “the kind of meritless and insignificant appeal the leave requirement is intended to filter out”.
The second respondents are the executors of the mother’s estate and appropriately have taken no part in this dispute.
General principles regarding pleadings
The application to strike out the contested paragraphs was made under r 15.1(1)(b) of the High Court Rules 2016. Rule 15.1 relevantly empowers the court to strike out part of a pleading if it is likely to cause prejudice or delay, is frivolous or vexatious or is otherwise an abuse of the process of the court.
In applying this rule to the present case, the logical starting point is first to consider the purpose of a statement of claim and the rules governing its content, in particular the rules governing the pleading of factual allegations.
The basic principles are that the statement of claim must provide sufficient information as to inform the defendant and the court of the essential basis of the claim and the relief sought. As regards factual allegations, it has been held that there are three reasons for including an allegation in a pleading:[6]
(a)The primary reason is that the allegation forms one of the essential planks upon which judgment depends, to be tested by asking whether in the absence of proof of the pleaded fact, the plaintiff would be entitled to judgment.
(b)The pleaded fact is critical to the quantum or nature of the remedy sought.
(c)The pleaded fact although contextual is essential to understand the more critical factual allegations.
[6]Russell v Taxation Review Authority HC Auckland CP526-SD99, 2 October 2000 at [40].
While the pleading of contextual facts may sometimes be permissible and a liberal approach adopted, care must also be taken to ensure the statement of claim is not a compendium of the evidence but a distillation of the facts essential to the claim.[7]
[7]Rule v Simpson [2017] NZHC 2154 at [39]; Red Stag Timber Ltd v Juken New Zealand Ltd [2023] NZHC 2947 at [47]; Reay v Attorney-General [2016] NZCA 519, [2016] NZAR 1672 at [16]; Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [84]; and Cayman Spectrum (NZ) Co v Spark New Zealand Trading Ltd [2023] NZCA 428, (2023) 26 PRNZ 332 at [40].
Thus cases where a statement of claim or parts thereof have been struck out under r 15.1 include cases involving the pleading of evidentiary or irrelevant material.[8]
[8]See, for example, Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 7.
Against that background, we turn now to consider what must be proved to establish a claim of undue influence, before examining the impugned paragraphs in this case and the issue of whether it is seriously arguable that the Judge erred in his treatment of them.
Undue influence
The essence of a claim of undue influence in relation to a testamentary disposition is that because of external pressure exerted by the defendant, the will-maker has signed the testamentary document contrary to their wishes. The document is not the product of the exercise of their free will because their will has been overborne.[9] However, persuasion which has left the final choice to the will-maker is not undue influence.[10]
[9]See Green v Green [2016] NZCA 486, [2017] 2 NZLR 321.
[10]Re Dudley (deceased) HC Auckland P1042/92, 14 May 1993 at 11.
The onus of proof rests on the person alleging undue influence.[11]
[11]At 11.
In the nature of things, direct evidence of undue influence is seldom available as coercion usually occurs behind closed doors.[12] Undue influence may, however, be proved by inferences drawn from all the surrounding circumstances bearing on the free will of the testatrix at the time the document was signed.
[12]Gorringe v Pointon [2023] NZCA 42 at [26], citing Alexander Learmonth and others Theobald on Wills (19th ed, Sweet & Maxwell, London, 2021) at [4-060].
Those circumstances may include illness, physical frailty and mental deterioration falling short of testamentary incapacity, as well as dependency on others in legal, business, social, medical or domestic affairs.[13]
[13]Re Dudley (deceased), above n 10, at 12.
While any powerful need, obligation or vulnerability on the part of the deceased which the defendant might be in a position to exploit should be viewed with special care, it is not enough to show the defendant had the means and the opportunity to unduly influence the deceased and that there has been a recent testamentary disposition in their favour. The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.[14]
Analysis of the impugned pleadings
[14]At 12.
It should be noted that when quoting the contested paragraphs we have used the same paragraph numbering as in the statement of claim. It should also be noted that the “Richard” mentioned in the paragraphs is Mr Morris.
Paragraphs 26 to 33
26.In the years leading up to her death, Richard had control over her property and finances and had access to various bank accounts in the name of Mrs Morris. Full particulars will be provided following discovery by Richard, but are known to him.
27.Since about 2014 following Richard’s separation from [his wife], and until at least 2019, it is understood that Richard was regularly requested to make statutory and other payments to [his wife] for herself and on behalf of the three children … born during their marriage. Full particulars will be provided following discovery by Richard, but are known to him.
28.Richard, in Court proceedings, and/or statutory declarations, is believed to have represented to the Family Court and/or Inland Revenue and/or other government agencies that he was a farm worker being paid approximately $151.00 per week net by Cranbrook Farm. Full particulars of such representations will be provided following discovery by Richard, but are known to him.
29. At all material times Richard was maintaining, operating and managing MTC but using Mrs Morris’ name, assets and money for the operation. In doing so Richard received remuneration, income and/or other monetary or material benefits from MTC well in excess of any amounts stated by Richard as set out in paragraph 28. Full particulars will be provided following discovery by Richard, but are known to him.
30.In an email, dated 14 March 2019, from Richard to Mr Lamborn, Richard said of a draft affidavit prepared for Mrs Morris, to be sworn by Mrs Morris in the Family Court proceedings:
“In paragraph 14, its stated “Richard has worked for me in that business”. You need to take this out. I am employed by Cranbrook Farms part time and have nothering (sic) to do with MTC Perennials.
Regards
Richard Morris”
31.The information in the email of 14 March 2019 was false in that Richard was managing, running, and receiving significant benefits from MTC.
32.In recent proceedings in the High Court (CIV-2022-404-930) issued by the Executors, Richard filed a statement of defence in which he acknowledged Mrs Morris held her interest in MTC as trustee or agent for him.
33.In response to a request for particulars of (inter alia) his alleged beneficial interest in MTC, Richard subsequently filed an amended pleading resiling from this position and stating Mrs Morris had the full legal and beneficial interest in MTC.
The High Court decision
The Judge held that [26] should not be struck out because control of a will-maker’s finances is a relevant factor of undue influence and that accordingly this part of the pleading was relevant to the factual matrix which must be assessed by the Court in determining whether the mother was unduly influenced.[15]
[15]Judgment under appeal, above n 1, at [31].
In relation to [27] to [33], the Judge considered that none of these paragraphs should be struck out because they were relevant to the overall assessment of the degree of influence and control and also to Mr Morris’ credibility.[16]
Discussion
[16]At [36].
We do not consider it arguable that the Judge erred in declining to strike out [26]. However, we consider the remaining paragraphs are arguably problematic.
They concern Mr Morris’ alleged duplicity in Family Court proceedings between him and his estranged wife. In our view, there is significant force in the argument that in relation to these paragraphs, especially [27] and [28], the Judge has in effect failed to assess relevance from a pleadings perspective as opposed to an evidence admissibility perspective. Allowing a pleading to stand because, for example, it is relevant to the defendant’s credibility does not appear to be consistent with the authorities on pleadings. It is not necessary in a claim for undue influence to prove the defendant is a dishonest person.[17]
[17]See, for example, Green v Green, above n 9.
The contention that these paragraphs are designed to blacken Mr Morris’ character therefore has, in our view, some merit. It is well-established that pleadings should not be used for that purpose.
Paragraphs 34 to 37
34.During the financial years from the year ended 31 March 2014 to the year ending 31 March 2021 (inclusive) Richard wrongly represented to Mrs Morris, her accountants, her tax agents, and other persons not yet known, that payments of Mrs Morris’s funds totalling at least $870,341.02 were legitimate business expenses of MTC when in fact they were for payments for Richard’s personal benefit (Wrongful Payments).
35.The Wrongful Payments, to the extent the plaintiffs and the Executors are presently aware of them, are identified in a report prepared for the Executors by a firm of forensic accountants, Beattie Varley Limited (BVL), dated 27 April 2023.
36.The Executors provided the report by BVL to the plaintiffs and Richard on 28 April 2023.
37.The Executors are seeking to recover the Wrongful Payments from Richard in separate High Court proceedings they have issued against him (CIV-2023-404-1518). Further particulars of the Wrongful Payments will be provided following discovery by Richard, but are known to him.
The High Court decision
These paragraphs contain allegations of misrepresentations made by Mr Morris to the effect that payments made for his own benefit were legitimate business expenses of a company owned by his mother and which he was involved in running. They include reference to an accountant’s report and a separate proceeding issued by the executors against Mr Morris to recover these payments.
In holding that these paragraphs should not be struck out, the Judge reasoned that the issues being raised in separate proceedings against Mr Morris were relevant to the degree of control Mr Morris had over his mother’s property and finances. It is, the Judge said, part of the factual matrix that the Court must consider when determining whether the first respondents have made out the claim of undue influence.[18]
Discussion
[18]Judgment under appeal, above n 1, at [40].
Again, we consider it is arguable the Judge has erred in his treatment of the pleadings and that none of the three reasons identified in the caselaw as justifying factual allegations of this nature apply. The further question arises whether correctly analysed these allegations are essentially an issue about a deceased’s lack of appreciation of the true extent of their estate (albeit caused by impropriety) rather than a lack of free will.
Another complication arguably highlighting why pleadings should not stray into evidence is that the proceedings issued by the executors have since been settled for what Mr Morris’ counsel advises is a “fraction” of the sum indicated in the accountant’s report and a sum that can “fairly be categorised as a costs avoidance payment”.
Conclusion on the merits of the proposed appeal
It follows from the reasons given above that contrary to the first respondents’ submission, we do not consider this a meritless appeal. In our view, it is seriously arguable the Judge has erred and that some or all of the contested paragraphs specified above should have been struck out.
Does the proposed appeal raise an issue of sufficient importance?
Despite our conclusion on the arguability of the proposed appeal, we are also acutely conscious of the fact that it is confined to a limited number of paragraphs in an otherwise relatively orthodox pleading and that an appeal will likely be costly. Although the substantive proceeding has been allocated a two-week fixture in September 2026, delay is also not an unrealistic possibility.
On the other hand, pleadings are important. They have been described by this Court as an “essential road map” for the court and the parties.[19] They establish the parameters of the case. There is a distinct possibility in this case that allowing at least some of the contested paragraphs to stand will itself cause significant delay and cost in terms of further discovery, amended statements of defence and arguments over further particulars.
[19]Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 17.
After careful consideration, we have therefore decided that it is in the overall interests of justice that leave be granted. We direct that the appeal be given an urgent oral hearing date before a divisional court.
As regards the cost of this application, we consider that costs should be reserved and determined as part of the costs on disposition of the appeal.
Outcome
The application for leave to appeal the decision of the High Court declining to strike out parts of the first respondents’ statement of claim is granted.
The appeal is to be allocated an urgent hearing date before a divisional court.
The costs of this application are reserved to be determined as part of the costs on disposition of the appeal.
Solicitors:
K3 Legal, Auckland for Applicant
Jack Cundy Barrister & Solicitor, Auckland for First Respondents
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