Public Trust v Andrews - [2024] NZHC 1240

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-76

[2024] NZHC 1240

IN THE MATTER of the Estate of Mervyn Stanley John Andrews

BETWEEN

PUBLIC TRUST as proposed Administrator or Executor of the Estate of Mervyn Stanley John Andrews

Applicant

AND

DESMOND CHARLES ARTHUR ANDREWS

First Respondent

MAURICE RICHARD MERVYN ANDREWS

Second Respondent

continued over

Hearing:
Further Submissions:

20 February 2024

29 February 2024

Appearances:

G M Cairns for Applicant

M R Andrews, Second Respondent, in person

Judgment:

17 May 2024

JUDGMENT OF PRESTON J

(Costs)

This judgment was delivered by me on 17 May 2024 at pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date……………

PUBLIC TRUST v ANDREWS [2024] NZHC 1240 [17 May 2024]

THERESA JOSEPHINE MARGARET MCKAY, STANLEY ROBERT MCKAY and
YBT NOMINEES LIMITED, as trustees of the MCKAY FAMILY TRUST

Third Respondents

DANIEL ROBERT MCKAY

Fourth Respondent

CAMERON JOHN MCKAY

Fifth Respondent

REBECCA HANNAH MCKAY

Sixth Respondent

Introduction

[1] The Public Trust as executor of the estate of Mervyn Stanley John Andrews (the deceased) applied to the Court for a grant of probate of the deceased’s last will, dated 5 July 2019 or, in the alternative, of his previous will dated 20 March 2009.

[2] The application was made in solemn form as the second respondent Maurice Andrews (Maurice) had raised concerns about his father’s capacity when he made the 2019 will. Ultimately, however Maurice did not file a statement of defence and the hearing proceeded by formal proof. By judgment of same date as this judgment I granted the application for probate in solemn form of the 2019 will, finding that the deceased had testamentary capacity at the time he made the will.

[3] The Public Trust seeks costs against Maurice. In essence, it says the application in solemn form was necessary only due to Maurice’s unreasonable approach to the proceeding.

[4] Maurice opposes the application and says the costs should be borne by the estate. Further, he says that Public Trust is not acting in an even-handed way in pursuing costs.

The Public Trust’s position

[5] The Public Trust seeks costs on a category 2 band B basis.1 Costs are not sought on an indemnity or increased costs basis but are submitted as appropriate to reflect the time and complexity of the case.

[6] Mr Cairns notes that the Public Trust in most cases does not seek costs on an application in solemn form, consistent with its neutral position putting all wills before the Court. The Public Trust generally has no direct financial interest in the outcome of litigation and can rely upon the standard executor indemnification to cover its costs incurred in acting appropriately and in good faith.

[7] However, Public Trust points to Maurice’s conduct as justifying an award, given that:

(a)Maurice’s registration of a caveat on 9 December 2021 – on the basis his late father lacked testamentary capacity at the date of the last will – prevented a…

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 Public Trust v Andrews

Details

AGLC: Public Trust v Andrews [2024] NZHC 1240
Case: [2024] NZHC 1240
Decision Date: 17 May 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the Public Trust, as the proposed administrator or executor of Mervyn Stanley John Andrews' estate, applied for a grant of probate of the deceased's last will dated 5 July 2019, or alternatively, his previous will dated 20 March 2009. The application was made in solemn form due to concerns raised by the second respondent, Maurice Andrews, about his father's capacity when he made the 2019 will. Despite Maurice not filing a statement of defence, the hearing proceeded by formal proof. The court subsequently granted the application for probate of the 2019 will, determining that the deceased had testamentary capacity at the time he made the will.

The primary legal issue before the court was whether Maurice Andrews should bear the costs of the solemn form application, given his failure to file a statement of defence. The Public Trust argued that the application in solemn form was necessitated by Maurice's unreasonable conduct, including the registration of a caveat on the basis that his father lacked testamentary capacity. Maurice, on the other hand, contended that the costs should be borne by the estate and criticized the Public Trust for not acting in an even-handed manner in pursuing costs. The court had to decide on the appropriate allocation of costs in accordance with the principles governing estate litigation.

The court considered the principles of awarding costs in estate litigation, emphasizing the High Court's discretion to achieve justice between the parties. It noted that while the usual practice is to award costs out of the estate and on a solicitor/client basis, this does not encourage unmeritorious litigation. The court found that Maurice's initial registration of a caveat was not unreasonable, as he was surprised by the content of the 2019 will. However, Maurice's continued objection despite receiving comprehensive information from the Public Trust, including a retrospective medical assessment confirming testamentary capacity, contributed to the costly and protracted process. The court determined that Maurice should contribute to the costs, but adjusted the quantum to reflect the time and complexity of the case.

In conclusion, the court awarded costs in favour of the Public Trust, directing that Maurice Andrews pay $4,182.50. This decision reflects a balanced approach, taking into account the circumstances of the case and the need to achieve justice between the parties.

Orders