Public Trust v Dollimore - [2019] NZHC 607

FOR A COURT READY (FEE REQUIRED) VERSION PLEASE FOLLOW THIS LINK

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2016-485-548

[2019] NZHC 607

BETWEEN
PUBLIC TRUST

Plaintiff

AND

ANNA DEANE DOLLIMORE

First Defendant

AND

MICHELLE PATRICIA SOWMAN

Second Defendant

Hearing: On Papers

Counsel:

J O Upton QC for Plaintiff

A J D Bamford and L S B Acland for First Respondent A Douglass and A C Crehan for Second Respondent

Judgment:

27 March 2019

JUDGMENT OF SIMON FRANCE J

(Costs)

[1] This is a costs decision arising from a case concerning testamentary capacity. A significant issue is the correctness of the stance adopted by Public Trust as executor, and so a much fuller background than is normal for a costs ruling is required.

[2] Ms Annette Dollimore made wills in 2009 and 2010. On both occasions the instructions were given to an officer of Public Trust, and wills were duly executed. Under each will Public Trust was nominated as executor.

[3] Ms Dollimore passed away in 2015. Public Trust issued proceedings seeking an order that the earlier 2009 will be admitted to probate as the last will of Ms Dollimore, and a declaration that the will of 2010 is invalid. The pleaded grounds were testamentary incapacity and undue influence.

PUBLIC TRUST v DOLLIMORE [2019] NZHC 607 [27 March 2019]

[4] At the time Ms Dollimore passed away, it is apparent Public Trust intended to propound the 2010 will. However, there was a reference in the death certificate to dementia and seemingly Public Trust has a policy that where a testator has passed away within five years of making a will, and where the testator was suffering from dementia at the time of death, it will inquire further into the circumstances. In this case that inquiry led Public Trust to conclude Ms Dollimore lacked testamentary capacity at the time of making the 2010 will. Hence, it sought the orders described.

[5] Ms Dollimore never married and had no dependants. She lived alone and independently, until late 2009 when early signs of dementia sparked changes. A niece of hers, the second defendant Michelle Sowman, was asked by Ms Dollimore’s brother to assist. Mrs Sowman did, and the outcome was that Ms Dollimore moved from independent living in Wellington to residential care in Nelson where much of the Dollimore family resided.

[6] This shift coincided with Ms Dollimore exhibiting a keen interest in making a new will, notwithstanding the existing will had only been made in February 2009. Ms Dollimore spoke openly to family members of wanting to leave her estate to Mrs Sowman, who was by now her attorney and also her primary caregiver (outside of the living arrangements).

[7] The 2009 will was a mixture of specific gifts to some family members and institutions, together with the residue being divided amongst some of the great nieces and nephews. Mrs Sowman’s generation was largely by-passed. The 2010 will was the opposite…

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 Dollimore

Details

AGLC: Public Trust v Dollimore [2019] NZHC 607
Case: [2019] NZHC 607
Decision Date: 27 March 2019

CaseChat Overview and Summary

This case involves a dispute concerning the validity of two wills made by Ms. Annette Dollimore in 2009 and 2010, with Public Trust acting as the executor for both wills. Public Trust sought a declaration that the 2010 will was invalid due to Ms. Dollimore's alleged lack of testamentary capacity and undue influence, while Michelle Sowman, the primary beneficiary under the 2010 will, sought a declaration of its validity. The court had to decide on the correctness of the stance adopted by Public Trust as the executor and the allocation of costs between the parties.

Public Trust argued that its litigation costs should be met from the estate, as it acted reasonably in bringing the proceeding. The court disagreed, stating that while Public Trust reasonably could have concerns about the validity of the 2010 will, it followed an incorrect approach by advocating for the 2009 will and seeking a declaration of invalidity for the 2010 will. The authorities indicate the correct approach is to place the two wills before the Court and ensure the Court has available the necessary evidence. The court found that expenses incurred in promulgating and supporting the challenge to the 2010 will were not properly incurred by Public Trust as executor of that will or of the 2009 will.

As for the first defendant, the court found that the case for undue influence was not strong and was advanced contrary to the first defendant's views at the time of the events. The first defendant also rejected a constructive settlement offer from the second defendant. Therefore, the first defendant should bear its own costs.

Orders:

1. Public Trust is entitled to an award as a first charge on the estate of one third of its litigation costs. The other two-thirds are to be borne by Public Trust and are not recoverable from the estate. Public Trust may also recover from the estate all its costs on this costs matter.

2. The second defendant is entitled to recover full costs from the estate, after Public Trust costs (as above and including any other Public Trust costs properly incurred in administering the estate) but otherwise before distribution. The sum identified in [11] of the second defendant’s submission as incurred to date is reasonable and may be recovered.

3. The first defendant is to bear its own costs.

Orders