Nelson v Codilla - [2021] NZHC 1958

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2821 CIV-2019-404-2822 CIV-2019-404-1516 CIV-2020-404-2151

[2021] NZHC 1958

IN THE MATTER of the Estate of Tihomir Posa (Deceased)

BETWEEN

LALE AVATAEO NELSON

Plaintiff

AND

ADRIAN CAMPANA CODILLA

First Defendant

ORTENCIA LAURENTE TENCHAVEZ

Second Defendant

Hearing: 3-6, 12 and 14 May 2021

Appearances:

R P McCutcheon for the Plaintiff R J Connell for the First Defendant

P J Clark and N P Tetzlaff for the Second Defendant

Judgment:

30 July 2021

JUDGMENT OF GORDON J

This judgment was delivered by me
on 30 July 2021 at 2.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Reuben & McGeachie Law, Henderson
Connell & Connell, Auckland Smith and Partners, Henderson

Counsel: P McCutcheon, Auckland

NELSON v CODILLA [2021] NZHC 1958 [30 July 2021]

TABLE OF CONTENTS

Background [6]

Claim under the Property (Relationships) Act 1976 (first cause of action) [78]

Legal Principles [83]

Credibility issues [90]

The duration of the relationship [107]

The nature and extent of common residence [108]

Whether or not a sexual relationship existed  [109]
Degree of financial dependence or inter-dependence and any financial
support  [111]
Ownership, use and acquisition of property  [114]
Degree of mutual commitment to a shared life  [115]
Care and support of children  [116]
Performance of household duties  [117]
Reputation and public aspects of the relationship  [118]
Decision  [124]

Claim under s 13 of the Property (Relationships) Act (second cause

of action) [131]

Testamentary promises claim (third cause of action) [133]

Legal principles [133]

Discussion [144]

Testamentary capacity and undue influence - standing [156]

Discussion [160]

Testamentary capacity (fourth cause of action) [170]

Legal principles [170]

Discussion [174]

Undue influence (fifth cause of action) [206]

Legal principles [209]

Discussion [211]

Did Mr Posa revoke the 2016 will? [220]

Result [231]

Orders [232]

Costs [233]

[1] Tihomir (Tim) Posa died on 2 October 2018 at the age of 86 years. In his last will made on 12 May 2016 (2016 will), Mr Posa left his estate to his caregiver, the second defendant, Ortencia (Ninnen) Tenchavez. The estate now comprises simply a residential property at 188 Fred Taylor Drive, Whenuapai (the house), which was Mr Posa’s home. An amount of cash that initially formed part of the estate has been used up in legal fees in this ensuing litigation.

[2] The plaintiff, Lale Nelson, claims she was Mr Posa’s de facto partner for a period of around 45 years since the early 1970s up until Mr Posa’s death. Mrs Nelson brings a claim under the Property (Relationships) Act 1976 (PRA) seeking an equal division of what she says is relationship property (effectively now just the house). As an alternative claim under the PRA, Mrs Nelson seeks an unequal sharing in the division of the alleged relationship property greater than 50 per cent.

[3]There are three further causes of action in the amended statement of claim:

(a)Under the Law Reform (Testamentary Promises) Act 1949 (Testamentary Promises…

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 Nelson v Codilla

Details

AGLC: Nelson v Codilla [2021] NZHC 1958
Case: [2021] NZHC 1958
Decision Date: 30 July 2021

CaseChat Overview and Summary

The case of Nelson v Codilla involved a dispute over the estate of Tihomir Posa, who passed away in October 2018. The plaintiff, Lale Nelson, claimed to have been in a de facto relationship with Mr Posa since the early 1970s and sought an equal division of his estate, which primarily consisted of a residential property. The first defendant, Adrian Codilla, was the executor of Mr Posa's last will, while the second defendant, Ortencia Tenchavez, was the beneficiary of the will.

The court found that Mrs Nelson and Mr Posa were not in a de facto relationship at the time of his death, and thus, she was not entitled to a division of his estate under the Property (Relationships) Act. However, the court did find that Mrs Nelson was entitled to compensation under the Law Reform (Testamentary Promises) Act, as she had provided services and care to Mr Posa in reliance of his promise to leave her "everything" in his will. The court ordered that Mrs Nelson be paid 65% of the value of Mr Posa's estate.

The court also dismissed Mrs Nelson's claims that Mr Posa lacked testamentary capacity when he executed his last will, and that the will was the result of undue influence exerted by Ms Tenchavez. The court found that Mr Posa had the requisite capacity to make the will and that there was no evidence of undue influence.

In summary, the court dismissed the first, second, fourth, and fifth causes of action brought by Mrs Nelson, while ordering that she be paid 65% of the value of Mr Posa's estate under the third cause of action. Costs were reserved for further consideration by the parties.

Orders