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Parkes v Parkes

Parkes v Parkes

Case [2015] NZHC 1289 9 June 2015

Testamentary Capacity

Undue Influence

Security for Costs

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Succession Law

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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 Defendants

MN 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…

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 Parkes v Parkes

Details

AGLC: Parkes v Parkes [2015] NZHC 1289
Case: [2015] NZHC 1289
Decision Date: 9 June 2015

CaseChat Overview and Summary

Parkes v Parkes involved a dispute over the validity of the last will of Lawrence Barclay Parkes, executed in September 2011. Brent Maxwell Parkes, one of the late Mr Parkes’s nephews, sought to have the 2011 will declared invalid on the grounds of lack of testamentary capacity and undue influence, contending that a significant change in the disposition of the estate from the 1991 will should raise questions about the deceased’s mental state and the influence of David Parkes and his wife Diana over the deceased. The defendants, who are trustees of the deceased’s estate, 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 he would be unable to pay costs if the proceeding fails. The primary issue was whether the plaintiff’s case had sufficient merit to justify a decision that he should not have to provide security for costs which he would otherwise be required to provide.

The court found that there was insufficient merit in the plaintiff’s case to justify exposing the trustees to the substantial cost of litigation without some security being provided by the plaintiff. The court noted that while there were concerns about the deceased’s testamentary capacity and the influence of David and Diana Parkes, these were largely speculative and not supported by direct evidence. The court concluded that the apparent closeness of the relationship between David, Diana, and their children, and the deceased, did not form any basis for an inference of undue influence. The court ordered that Brent must provide security for costs in staged payments of $5,000 by 26 June 2015, $5,000 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, and $20,000 on or before the setting down date.

Orders