Parker - [2022] NZHC 2878

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000478

[2022] NZHC 2878

IN THE MATTER OF the Wills Act 2007 and the Administration Act 1969

AND

IN THE MATTER OF

An application by:

LARENA JOY BROWN, of Christchurch, Counsellor, for an order declaring a document to be a valid will of the late CHRISTINE DELLANY PARKER and for

an order appointing temporary administrator and prospective costs order

Applicant

Hearing: On the papers

Judgment:

3 November 2022

JUDGMENT OF NATION J

[1] Christine Dellany Parker (Christine) died on 6 September 2022 after she had been diagnosed with breast cancer. On 5 August 2022, at the instigation of her sister, Larena Joy Brown (Ms Brown), she saw a senior registered legal executive at the law firm, Cavell Leitch, and gave instructions which led to the preparation of a draft will.

[2] Christine was survived by two adult sons. One son, Jamie, had been living with his mother. He is a beneficiary and suffers from Asperger’s syndrome. The relationship between Christine and her other son, Nathaniel, appears to have been

Re Parker [2022] NZHC 2878 [3 November 2022]

difficult. Nathaniel had been living for a time with his mother and brother but left the house in April 2022, allegedly after the Police had to assist.

[3] It is claimed that clauses in the draft will reflect Christine’s instructions that she wanted her home at 357 Breezes Road, Aranui, Christchurch to go to her son Jamie, free of any mortgage and other charges, her coin and stamp collections to be gifted to Jamie, and all household chattels to be gifted to Jamie.

[4] The draft will also reflected Christine’s instruction that she wished her sister Ms Brown and a partner at Cavell Leitch to be the executors and trustees of her will.

[5] The legal executive has said Christine was undecided as to how she might recognise her relationship with Nathaniel. Possibilities as to this included leaving him a car and/or dividing the residue in the estate between her two sons.

[6] The estimated net value of the estate is approximately $477,000. The ratable valuation of the home is $300,000. That value in the estate would appear to include Christine’s interest in the estate of Maurice Parker through his estate’s half-interest in that property which was to be gifted to Christine under his will. At present, there is more than $20,000 owing in unsecured debts and a first mortgage liability of nearly
$7,500.

[7] Ms Brown has filed an originating application to have those parts of the will, which provide for Jamie to be left the home and other property, to be declared a valid will. In an affidavit, Ms Brown said her lawyer had explained to her that those parts of the estate as to which Christine was uncertain might be dealt with “in accordance with the intestacy rules”.

[8] That is the background to three applications I must now deal with. The first…

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 Parker

Details

AGLC: Parker [2022] NZHC 2878
Case: [2022] NZHC 2878
Decision Date: 3 November 2022

CaseChat Overview and Summary

Larena Joy Brown, the sister of the deceased, Christine Dellany Parker, filed an originating application in the High Court of New Zealand, Christchurch Registry, seeking to have parts of a draft will executed by Christine declared valid. She also sought to be appointed as a temporary administrator and a prospective costs order. Christine died on 6 September 2022, leaving behind two sons, Jamie and Nathaniel, who had a strained relationship. The draft will included provisions for Jamie to receive Christine's home, coin and stamp collections, and household chattels. Christine had not decided how to recognise her relationship with Nathaniel, with potential options being a car and/or dividing the residue of the estate between her sons. The court had to decide whether parts of the draft will could be declared valid, whether Ms Brown should be appointed as a temporary administrator, and whether a prospective costs order should be granted to Ms Brown.

The court concluded that the applications should be determined without notice to avoid unnecessary costs and delay. It was appropriate for Ms Brown to be appointed as a temporary administrator to preserve and manage the estate pending the resolution of the proceedings. The court also granted a prospective costs order to Ms Brown, entitling her to have her costs paid from the estate and protecting her from having to pay the costs of any other party. The court declined to make an order that any costs Ms Brown is ordered to pay to a party that contests these proceedings will be paid out of the estate, as it will be for the court to decide in due course whether any other party's costs should be paid out of the estate. The proceedings were adjourned for further call.

The court's decision was based on the need to preserve and manage the assets of the estate pending the resolution of the proceedings and the fact that Ms Brown was suitably qualified to perform the tasks of the administrator and had sworn to faithfully administer the estate. The court noted that there may be issues as to whether parts of a draft will can be declared valid where there is uncertainty over other parts of the draft will and that there may be a delay before there is agreement or Court orders as to how the whole of Christine’s estate is to be distributed. The court also noted that Ms Brown had brought these proceedings to assist the Court to determine whether parts of the draft will for the deceased should be validated and to ensure assets in the estate are adequately managed until issues between prospective parties are resolved, rather than out of self interest.

Orders