Parkes v Parkes
[2015] NZHC 1289
•9 June 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-485-5450 [2015] NZHC 1289
UNDER the Declaratory Judgments Act 1908 and
Parts 5 and 8 of the High Court Rules
IN THE MATTER
of the Estate of LAWRENCE BARCLAY PARKES
BETWEEN
BRENT MAXWELL PARKES Plaintiff
AND
DAVID LAWRENCE PARKES AND STEVEN GREGORY PARKES AND GARY WAYNE THOMPSON ALL EXECUTORS OF THE ESTATE OF LAWRENCE BARCLARY PARKES Defendants
Hearing: 18 March 2015; 21 May 2015 (by telephone conference) Appearances:
JLW Green for the Plaintiff
P Collins for the DefendantsMN Tolich for Beneficiaries to be served (appearing on a watching brief)
Judgment:
9 June 2015
JUDGMENT OF TOOGOOD J [Application for security for costs]
This judgment was delivered by me on 9 June 2015 at 3:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
PARKES v PARKES [2015] NZHC 1289 [9 June 2015]
Introduction
[1] Lawrence Barclay Parkes died in July 2013 aged about 98. This proceeding concerns an application by Brent Parkes, one of the late Mr Parkes’s six surviving nephews, to have his uncle’s last will dated 12 September 2011 (“the 2011 will”) declared invalid on the grounds of lack of testamentary capacity and undue influence. The deceased, a widower with no children, had executed a prior will in May 1991 (“the 1991 will”) leaving the entire residuary estate, which then included his home, to Brent and the other surviving nephews.
[2] The essence of Brent’s concerns about the circumstances in which his late uncle executed the 2011 will is a significant change in the disposition of the estate from that under the 1991 will. In the 2011 will, the deceased’s home in Mt Roskill was left to the children of one of the nephews, David Parkes, who is also a trustee. The nephews are the beneficiaries of the residuary estate which, at the time the will was signed, included a boat, around $30,000 in cash, and some chattels. By the time of Mr Parkes’s death, however, the residuary estate had largely been dissipated. The specific bequest of the house, which was recently sold for just over $1 million, effectively deprives the nephews of any benefit from the estate.
[3] Brent pleads that at all material times leading up to the making of the last will, and when making the last will, the deceased:
[a] did not have the necessary testamentary capacity and understanding to make the will validly, “due to his advanced age and state of health”; and
[b] was subject to, and acted under the application of, undue influence by
David and his wife Diana.
[4] The defendants, two of whom are named residuary beneficiaries in both wills, are the trustees of the deceased’s estate. They have applied for an order for security for costs on the grounds that Brent resides outside New Zealand and that it
is reasonable to believe that, if Brent were ordered to pay costs at the end of a hearing (likely to be in excess of $30,000), he would be unable to do so.
[5] The application was first heard on 18 March 2015 but was adjourned for further steps to be taken, in circumstances which I describe more fully below. On 21
May 2015, I conducted a further hearing by telephone conference, against the background of a comprehensive memorandum of further submissions on behalf of the plaintiff.
[6] Mr Green submitted for the plaintiff that a decision on the defendants’ application for security for costs should be deferred until after the resolution of all outstanding interlocutory proceedings, which include an application for further discovery by the defendants and applications for non-party discovery.
[7] I told counsel at the conclusion of the telephone conference that I considered I was in a position to make a decision on the defendants' application for security for costs without waiting for the outcome of any further interlocutory applications.
Security for costs – applicable principles
[8] The granting of security for costs is governed by r 5.45 of the High Court Rules. So far as is relevant to this case, a judge may order a plaintiff to give security for costs if the plaintiff is a resident outside of New Zealand or if the plaintiff appears to be unable to pay costs if the proceeding fails.1 Because the parties agree that both of those conditions are satisfied in this case, the decision turns on whether I should exercise my discretion to grant security for costs on the basis that it is just to do so in all the circumstances.2 That requires a careful assessment of the circumstances of the case.3
[9] I must bear in mind that substantial security may have the effect of preventing Brent from being able to pursue his claim, thereby affecting his right of
1 High Court Rules, r 5.45(1)(a)(i) and (1)(b).
2 Rule 5.45(2).
3 A S McLachlan v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [14].
access to the courts.4 A plaintiff’s interest must, however, be balanced against a defendant’s interest in not being caught up in unmeritorious litigation.5 Because access to justice is a fundamental human right, I must be slow to make an order for security that will stifle a claim.6 The apparent merits of the claim are a factor to be assessed in conducting the balancing exercise.7
[10] It is appropriate also to have regard to the specific principles relating to costs in probate proceedings. The usual rule that the losing party in a proceeding should contribute to the costs of the successful party8 is subject, in proceedings of this kind,
to the principle in In re Paterson that:9
If there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent.
[11] This consideration, also, requires an examination of the apparent merits of Brent’s claims, bearing in mind that some disclosure of documents has occurred since the March hearing.
The hearing on 18 March 2015
[12] Mr Collins submitted on behalf of the defendants that the plaintiff’s case is speculative at best. He emphasised that Brent had submitted a statement of claim in perfunctory form that contained allegations of incapacity and undue influence unsupported by any particulars. Because there is nothing in the evidence that gives rise to a presumption of incapacity or undue influence, counsel argued, it is the plaintiff who has the burden of proof on the balance of probabilities to establish both
incapacity10 and undue influence.11 He said the only evidence offered by the
4 At [15].
5 At [16].
6 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [3].
7 Ambrose v Pickard [2009] NZCA 502 at [32].
8 High Court Rules, r 14.2(a).
9 In re Paterson (Deceased) [1924] NZLR 441 at 442-443, recently cited with approval in
Woodward v Smith [2009] NZCA 215 at [73].
10 Woodward v Smith, above n 9.
11 ASB Bank Ltd v Harlick [1996] 1 NZLR 655 (CA).
plaintiff is an affidavit of Ms Robins, an estates consultant, who had never met Mr Parkes and can only offer speculative evidence in support of the plaintiff’s claim. Finally, Mr Collins argued that the principle in In re Paterson could not be invoked by the plaintiff because he had not advanced sufficient grounds to question the execution of the will or capacity of the testator.
[13] Addressing access to justice considerations, Mr Collins proposed that security be paid in staged amounts, calculated on a Category 2B basis for a three-day hearing.
[14] Mr Green submitted on behalf of the plaintiff that the Court should apply the In re Patterson principle in this instance and that it should be accepted for the purposes of the claim for security that the trustees’ costs in the proceeding should lie with the estate. On the basis of Brent’s state of knowledge at the time the proceeding was issued, Mr Green put the substantive case no higher than saying that Brent has justifiable suspicions about how the 2011 will was made and that legitimate questions raised by him or on his behalf in that regard have not been answered. Mr Green identified that Mr Thompson was the solicitor who prepared the 2011 will and criticised him for refusing to provide answers to what the plaintiff says were reasonable questions about the state of health of the deceased at the time he executed the 2011 will; about the particular circumstances in which David and Diana Parkes were appointed enduring attorneys over the deceased’s affairs; and about their role in the preparation and execution of a will which resulted in almost all of the estate being left to their children.
[15] It is said that Mr Thompson was asked reasonable questions about the availability of medical evidence concerning the deceased’s health but brushed off the inquiries as a “fishing expedition” and told the plaintiff that he would have to sue to get the information.
Interim decision following 18 March hearing
[16] The proceedings are in their infancy. The only substantial evidence filed prior to the March hearing concerns the application for security for costs, but it
addresses both Brent’s financial position and what the defendants say about the merits of his case. Because assessing the merits of a party’s case is an essential element of the exercise of the Court’s discretion to award or refuse the payment of security for costs, I decided on balance that the Court would be better placed to form a view about that important issue following discovery, whether of documents held by the defendants or documents held by non-parties, or both.
[17] I directed Mr Thompson to disclose to the plaintiff’s solicitors the whole of his file or files relating to the preparation and execution, in 2011, of the enduring powers of attorney in favour of David and Diana Parkes, and the preparation and execution of a new will, by the deceased. I also directed the defendants to disclose any documents in their possession relating to the personal affairs of the deceased, including matters related to his health and personal care, in 2011 and any other matters relevant to questions of his testamentary capacity at about the time of the execution of the 2011 will.
Steps since 18 March 2015
Dr Broom’s letter
[18] Mr Thompson and the other defendants provided discovery as ordered. Mr Thompson also provided a letter dated 26 March 2015 from Dr Alan Broom, who had been the deceased's general practitioner. He says he first attended the late Mr Parkes on 24 April 2004, when Mr Parkes "presented as a very well preserved 89 year old who was at that time happily maintaining his garden, looking after his moored yacht, and working in his garage with his woodwork." Dr Broom continues:
I saw him on 12.5.11 for his routine LTSA driving test and at that time he passed this examination physically and mentally but contingent on getting optometric assessment for his vision.
I next saw him on 16.8.11 when he was recovering from a chest infection and as is typical with acute infection in an elderly person there had been some decompensation during this time where there had been a drop off in self-care and attention to bodily needs such as meals. He agreed to home help and meals-on-wheels reluctantly.
I saw him again on 1.6.12 when he spoke of his increasing age, how there was longevity in his family especially the women, how he cooked his meals
and still did some gardening. He appeared lucid although he had slowed down.
The telephone conference on 21 May 2015
The plaintiff’s position
[19] For the telephone conference on 21 May 2015, Mr Green filed and served a substantial submission with supporting authorities. He submitted:
[a] The defendants are attempting to obtain an order for security to prevent the plaintiff from pursuing his case.
[b] The Court should take account of the particular principles relating to costs awards in probate and administrative matters, relying on In re Paterson (Deceased),12 and Fraser v Chalmers.13 If the Court is satisfied that a plaintiff had reasonable grounds, having regard to the knowledge and means of the parties, to question the execution of the will or the capacity of the testator, or to raise a charge of undue influence, the plaintiff may be relieved from having to pay the costs of the opponent if the plaintiff is ultimately unsuccessful.14
[c] The Court must have regard to all the circumstances of the case, and consider the totality of the evidence in order to determine whether the deceased had capacity to dispose of his estate in the way that he did.15
If there is evidence which raises a lack of capacity as a tenable issue, then the Court has an obligation to ensure that any legitimate concern or suspicion is investigated. If sufficient evidence is raised, then the proponents of the will are obliged to show that a reasonable inference can be drawn that the maker of the will did have testamentary
capacity at the time it was executed.16 Mr Green added that in these
12 In re Paterson (Deceased), above n 9.
13 Fraser v Chalmers (1997) 11 PRNZ 348 (HC).
14 At 351.
15 At 352.
16 See, for example, Public Trust v Bick [1973] 1 NZLR 301; Peters v Morris CA99/85, 19 May
1987; McDonald v Valentine [1920] NZLR 270; Nijisse v Squires CA53/04, 15 December 2004.
circumstances the totality of the evidence should not only include evidence disclosed by the testators and other relevant parties through discovery, but also non-party disclosure and all evidence that surrounds the making of the second will including answers to interrogatories served on defendants.
[d] The Court must take account of the nature of the proceeding and the overall justice of the case, so that fair access to justice is not thwarted.
[20] Applying these submissions to his client’s case, Mr Green identified that the issues about Mr Parkes’s health and age; the timing of the instructions that Mr Thompson took; and the circumstances of the granting of powers of attorney, created enough of an evidential basis to investigate the will.
[21] Mr Green also argued that Mr Thompson has a conflict of interest by acting as the estate’s solicitor on record in the proceeding as he was the person who drafted the second will and he would therefore not be able to act impartially for the estate. He indicated that the plaintiff might apply for orders removing Mr Thompson as a trustee of the estate, which would require the defendants to remove Mr Thompson as their solicitor and that there was a challenge to Mr Collins’s ability to continue as counsel. Notwithstanding the disclosure of documents in accordance with the directions given following the hearing on 18 March 2015, Mr Green submitted that a decision on the defendants’ application for security for costs should be deferred further, until after the resolution of the outstanding interlocutory proceedings, because the Court is not yet in a position to draw inferences as to the merits of the plaintiff’s case. He also suggested there may be an application under Part 27 of the High Court Rules for a grant of probate in solemn form.
[22] Mr Green said he had been instructed to enter into settlement discussions.
The defendants’ position
[23] Mr Collins referred to the submissions he had made on behalf of the defendants at the earlier hearing. He submitted that it was evident that Brent was
attempting to engage the defendants in “interlocutory trench warfare” as a way of forcing them into a settlement. Nevertheless, counsel acknowledged the Court’s concerns about access to justice and the reluctance of a court in proceedings of this kind to unreasonably obstruct a plaintiff’s legitimate inquiry about testamentary capacity and undue influence. He argued that an order for payment of security in stages might provide an appropriate balance between the competing interests of the parties. Counsel suggested fixing the overall amount of security at $30,000 and ordering staged payments as follows:
[a] $5,000 payable within 14 days of the Court’s order for payment of
security.
[b] $5,000 at the conclusion of discovery and any other interlocutory procedures.
[c] The balance of $20,000 to be paid on the setting down date.
The issues
[24] It is not disputed that the defendants face the prospect of continuing interlocutory proceedings and a three-day hearing if this matter proceeds to trial. Mr Green did not disagree with Mr Collins’s assessment on 18 March 2015 that Brent will be exposed to a costs order in the vicinity of $30,000 if his claim fails. That assessment may now be somewhat conservative, in the light of the subsequent interlocutory applications filed by the plaintiff’s solicitors and the recent signalling of further applications, but Mr Collins did not amend his earlier view. There is no doubt that Brent is not only resident overseas but also that he is not currently able to pay the costs to which he would likely be liable if he is unsuccessful in the proceeding.
[25] And it follows, of course, that he does not have the resources at present to meet an order for security for costs in the amount claimed: Brent has not offered any asset which might be charged as security, and it appears he is not in a position to pay the sum into Court. The effect of non-compliance with any order for security will be
that the proceeding is stayed and may ultimately be struck out for want of prosecution. That brings access to justice into immediate focus.
[26] The real issue for determination, therefore, is whether the plaintiff’s case has sufficient merit to justify a decision that he should not have to provide security for costs which he would otherwise be required to provide. Because the effect of a decision to require the plaintiff to provide security may result in the plaintiff being unable to pursue his claims, I address the apparent merits of the plaintiff’s case more fully than might otherwise be appropriate. I bear in mind that, although there has been significant discovery of documents by David Parkes and Mr Thompson, further discovery is sought. I note also that the oral evidence is not complete; that Dr Broom’s views are not sworn testimony; and that there has been no cross- examination of the witnesses who have provided affidavits.
Legal principles regarding testamentary capacity
[27] In assessing counsel’s respective submissions about the merits of the case, I have regard to the judgment of the Queen’s Bench in Banks v Goodfellow17 which, despite its venerable age, remains the leading authority on testamentary capacity. In Woodward v Smith, the Court of Appeal paraphrased the propositions stated in Banks v Goodfellow, which I adapt to the circumstances of this case, omitting matters not in issue, as follows: 18
[a] Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.
[b] It is essential to the exercise of the power to make a valid will that the deceased –
[i] understood the nature of the act and its effects, and also the extent of the property of which he was disposing;
17 Banks v Goodfellow (1870) LR 5 QB 549.
18 Woodward v Smith, above n 9, at [19] in which the Court of Appeal paraphrased the propositions stated in Banks v Goodfellow, above n 17, at 565-568.
[ii] was able to comprehend and appreciate the claims to which he ought to give effect.
[c] Unsoundness of mind arising from want of intelligence caused by defective organisation, or by supervening physical infirmity or the decay of advancing age, may result in incapacity. But
[i] though the mental power may be reduced below the ordinary standard, if the deceased had sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.
[ii] It is enough if the mental faculties retained sufficient strength fully to comprehend the testamentary act about to be done.
[d] It is not necessary that the deceased should have viewed his will with the eye of a lawyer, and comprehended its provisions in their legal form. It is sufficient if he had such a mind and memory as would have enabled him to understand the elements of which it was composed, and the disposition of his property in its simple forms.
[e] In deciding upon the capacity of the deceased to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. It is not necessary (for the proponent of a disputed will) to establish that the deceased was capable of making more complex decisions than the decision at issue.
[f] Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all;
[g] Nor is it necessary that the deceased should have possessed such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some
degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.
[h] But if that standard had not been met, he will have lacked capacity.
[28] It follows from these considerations that the nature and complexity of the decision at issue is relevant to determining whether the deceased had the necessary capacity to make it. The will in this case was a simple one and the only decision at issue was the change to preferring the children of one of the deceased’s nephews as effectively the sole beneficiaries of the estate, at the expense of their father and the other nephews.
Legal principles regarding undue influence
[29] For present purposes it is sufficient to state briefly what I apprehend the plaintiff will have to establish in order to succeed in his allegation of undue influence. Adopting the principles set out by the House of Lords in Royal Bank of Scotland v Etridge19 and approved by the Court of Appeal in Hogan v Commercial Factors Limited,20 I consider that Brent must prove on a balance of probabilities that:
[a] his late uncle was influenced by David and Diana Parkes; and
[b] it is at least probable that the alleged influence led to the making of the decision to change the principal beneficiaries of the estate; and
[c] the influence was undue in the sense that the decision was not the result of the free exercise of an independent will on the part of the deceased.
[30] Proof that the deceased received advice from a solicitor, Mr Thompson, before signing the 2011 will is one of the matters the Court will take into account
19 Royal Bank of Scotland v Etridge [2002] 2 AC 773.
20 Hogan v Commercial Factors Ltd [2006] 3 NZLR 618 (CA) at [36].
when weighing all the evidence. The weight, or importance, to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a decision-maker a proper understanding of what he or she is about to do. Whether it will be proper to infer that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a question of fact to be decided
having regard to all the evidence in the case.21
Assessment of the plaintiff’s case
[31]The plaintiff’s case, boiled down, amounts to assertions that his late uncle was so aged and infirm at the time he signed the 2011 will that it may be inferred he lacked the testamentary capacity to make the will, and that he was overborne by the influence of David and Diana to make a change in the disposition of his estate to favour their children. It is not seriously disputed that the plaintiff’s case is founded on speculation and suspicion rather than direct evidence. The suspicions were fuelled by what is alleged to have been an un-cooperative, if not obstructive, stance taken by Mr Thompson, the solicitor, when proper inquiries were made as to the circumstances of the making of the will.
Mr Parkes’s testamentary capacity
[32] It is not asserted that the late Mr Parkes owed a moral duty to provide for the plaintiff or any other of his nephews, or all of them, as beneficiaries of his estate. It seems to be clear that no person had any moral claims to the estate and that Mr Parkes was entitled, therefore, to dispose of it as he wished. As to the deceased’s state of mental health, therefore, the question is whether he understood the nature of the disposition he was making in the 2011 will and its effects, and also the extent of the property of which he was disposing.
[33] Dr Broom’s letter setting out his observations of the late Mr Parkes at the advanced age of 89, when Dr Broom first saw him in 2004 and, more importantly
when he saw him in 2011 at the age of 96, is significant. It is an indication that, at
21 Royal Bank of Scotland v Etridge, above n 19, at [20] (per Lord Nicholls of Birkenhead).
trial, Dr Broom will give independent, unbiased and expert evidence that the deceased was a remarkably well-preserved and active man capable of meeting his own needs. I consider it to be a compelling feature of Dr Broom’s account that the deceased was capable of retaining his driver’s licence in his mid-90s, demonstrating not only physical wellbeing but also mental acuity.
[34] The consultation on 16 August 2011 is the closest to the date of the disputed will. While Dr Broom records Mr Parkes’s ill-health from a chest infection, the observation that Mr Parkes was reluctant to engage help suggests he remained mentally alert at that time. The lucidity noted by the doctor some 10 months later, on 1 June 2012, does not support an inference that Mr Parkes was in a compromised mental state when he signed the disputed will in September 2011, or that he was incapable of making the straightforward decision to leave the bulk of his estate to David Parkes’s children.
[35] There is some dispute about how well informed Diana Parkes was as to the deceased’s day-to-day domestic arrangements, but I infer from the evidence that David, Diana, and their children were close to the deceased. Mr Thompson’s file notes of the will instructions he received from Mr Parkes on 21 August 2011 records that Mr Parkes said Diana helped him and that on two occasions during the consultation, Mr Parkes said the children, Nicholas and Victoria, visited him. The deceased exhibited sufficient regard for David and Diana to grant them enduring powers of attorney over both his property and his care and wellbeing, and it may be that for all intents and purposes he regarded David, Diana, and the children, in effect, as his immediate family. It cannot be at all surprising in those circumstances that,
20 years after his prior decision to leave his estate equally to his surviving nephews, he favoured his great nephew and great niece. I am satisfied that there is nothing in the nature of the deceased’s decision, therefore, to put an objective inquirer on alert that Mr Parkes may not have understood what he was doing.
Undue influence
[36] As to the allegation of undue influence, I acknowledge that it is not necessary for Brent to provide direct evidence of undue influence and that circumstantial
evidence can be sufficient to displace the burden of proof. But it is not enough for the plaintiff to show merely that David and Diana Parkes had the means and opportunity to unduly influence the deceased and that the change to the disposition of the deceased’s estate favoured their children. The Court must be satisfied that it is probable both that the power of influence was exercised and that the will would not
have resulted but for that exercise.22
[37] The solicitor who prepared the will has provided two affidavits to the Court. Mr Thompson says that he recognised that, because Mr Parkes was an elderly man, he was conscious of his duty to be satisfied concerning his client’s testamentary capacity. He describes Mr Parkes as being fit, healthy, and clear minded at the time he attended on him for his instructions concerning the will and its execution. Mr Thompson said he saw nothing to suggest that any undue influence was being exerted on him. In his second affidavit, Mr Thompson says that had there been any concerns raised by Mr Parkes’s age he would have asked for a medical certificate. Mr Thompson’s file note of his attendance on 21 August 2011, disclosed in the discovery ordered by the Court, contains a note recording Mr Parkes’s bank balance and information about his boat which was moored at Westhaven. Mr Parkes was able to provide his wife’s full name and her approximate date of year of death. He gave the names of his brothers and their six children, his nephews, and the names of David Parkes’s children. Mr Thompson noted:
He could give me details
- Memory slow but fine
- Very specific what he wants
[38] Further, he noted:
- Discussed leaving to others → No
- Favours Nicholas and Victoria
- Nicholas is son of David Parkes
- → comes to visit
22 Hayden v Simeti HC Auckland P1042/92, 14 May 1993 at 12.
- Says works for Air NZ
[39] The attendance of Mr Thompson on Mr Parkes on 21 August 2011 was five days after Dr Broom saw Mr Parkes on 16 August 2011. Mr Thompson does not suggest that Mr Parkes’s ability to provide instructions was in any way compromised by ill health.
Other evidence
[40] Diana Parkes states in her affidavit that the deceased visited her family frequently at their home. She says that the late Mr Parkes led an active life up his final years including mowing his own lawns, maintaining his vegetable garden, doing his own grocery shopping and preparing meals for himself. She says that from her observation, Mr Parkes was fit, healthy and agile right up until the last months of his independent life. It appears that Mr Parkes was placed in a care facility or rest home some months prior to his death but, I understand, more than a year after the
2011 will was signed. Diana Parkes was apparently involved in providing the home care assistance for the deceased as recommended by Dr Broom and referred to by him in relation to the consultation on 16 August 2011.
[41] An affidavit on behalf of the plaintiff has been sworn by a Ms Denise Robins who describes herself as practising as a consultant to about 140 law firms around New Zealand in the area of deceased estates. I do not find her affidavit to be of much assistance in addressing the matters at issue. It is probable that much of the content of her affidavit would be ruled inadmissible at trial as being hearsay, submission rather than evidence of fact, or opinion evidence on matters on which the Court is unlikely to require assistance. Ms Robins has no knowledge of the deceased other than what she has been told. It is possible that some parts of her affidavit may be accepted by the Court as evidence of inquiries made by her of Mr Thompson and of his refusal to provide information. But Mr Thompson’s dismissive response to inquiries suggesting that he may have acted improperly, or at least negligently, in taking Mr Parkes’s instructions and preparing the will and enduring powers of attorney is not likely to be of a great deal of assistance to the Court in determining the substantive issues.
[42] I have concluded with little hesitation that Brent’s claim is founded upon a sense of grievance that his late uncle changed his will 20 years after initially leaving his entire estate to be shared by Brent and his brothers and cousins, and mere suspicion that David and Diana must have influenced the deceased to favour their children. The evidence available at present, particularly the views of Dr Broom, demonstrates that Mr Parkes was more than capable of making an informed decision about the disposition of his estate. It is not insignificant that, at the time the will was prepared and signed, the estate comprised not only the house which was the subject of the specific bequest to Nicholas and Victoria, but also Mr Parkes’s car, the house contents, the boat moored at Westhaven, and cash of around $30,000. At the time he signed his will, the bequest of the residuary estate to the nephews was not an empty gesture, although I accept that the amount which would have been shared by the surviving nephews would have been modest in comparison to the value of the house.
[43] In my view, the apparent closeness of the relationship between David and Diana Parkes and their children, and the deceased, suggests only a reason why the deceased would change his mind about the disposition of the estate and does not form any basis for an inference of undue influence.
[44] The plaintiff’s case must therefore be characterised as speculative and weak. The allegation that Brent is embarking, through his solicitors, on a fishing expedition is lent some support by the list of questions prepared by the plaintiff’s solicitor for answer by Mr Thompson, in the form of interrogatories. It is wide-ranging and directed, in several respects, to matters which are not likely to be within Mr Thompson’s direct knowledge.
[45] I conclude, therefore, that there is insufficient merit in the plaintiff’s case to justify exposing the trustees to the substantial cost of litigation which is estimated at at least $30,000 without some security being provided by the plaintiff. Notwithstanding the access to justice implications, I consider the case for security for costs to be made out.
[46] Mr Collins’s proposal for staged payments has merit. It would at least enable the defendants to have a measure of protection in the early stages of the proceeding and as the matter nears trial, without creating an unreasonable obstacle to the plaintiff to at least conduct further investigations through the discovery process.
[47] Furthermore, if the outcome of the outstanding interlocutory applications leads to a conclusion that Brent’s case is stronger than I currently perceive it to be, the issue of payment of the third instalment of the security payment can be revisited by the Court.
Orders
[48] I adopt the suggestion of Mr Collins and fix the overall amount of security at
$30,000, payment of which shall be made into Court as follows: [a] $5,000 is to be paid by 26 June 2015.
[b] $5,000 is to be paid within 10 working days of compliance by the defendants or any non-party with the last interlocutory order made by the Court prior to the case being set down for hearing.
[c] $20,000 is to be paid on or before the setting down date.
[49] In the event that any of the sums ordered to be paid are not paid on or before the due date, the proceeding shall be stayed until payment is made.
[50] In the event of a dispute about whether there has been compliance with any of the orders in [48], any party shall have leave to apply to the Court for directions.
[51] Any further interlocutory applications shall be filed and served by 26 June
2015. The Registrar shall set down the plaintiff’s outstanding applications for particular discovery and any other interlocutory applications filed by 26 June 2015 for a hearing not exceeding half a day on the first available date after 3 July 2015.
The High Court Rules relating to the hearing of interlocutory applications shall apply to the filing of notices of opposition and affidavits. Memoranda of counsel shall be filed and served not less than two working days before the hearing.
……………………………….
Toogood J
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