Rakich v Cox - [2015] NZHC 703

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-485-004638 [2015] NZHC 703

IN THE MATTER
of an application for a Grant of Probate in

Solemn form in the Estate of Walter John Andrew Rakich, also known as Walter Jack John Rakich

AND IN THE MATTER

of the Wills Act 2007

AND IN THE MATTER

of sections 339 and 343 of the Property
Law Act 2007

AND IN THE MATTER

of the Administration Act 1969

BETWEEN

JENNIFER GAY RAKICH Plaintiff

AND

DAVID JOHN GRAEME COX AND JOHN MATHEW RAKICH Defendants

Hearing: (On the papers)

Judgment:

15 April 2015

JUDGMENT OF VENNING J

This judgment was delivered by me on 15 April 2015 at 12.30 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Kumeu-Huapai Law Centre, Kumeu
Copy to: M Kelly, Auckland

RAKICH v COX AND ANOR [2015] NZHC 703 [15 April 2015]

[1] Walter Jack John Rakich (the deceased) died on or about 7 April 2014. He was survived by five children, the plaintiff, Jennifer Gay Rakich, John Mathew Rakich, Martha Marjory Rencher, Mark Andrew Rakich, and Andrea Christine Rakich.

[2] The deceased left two wills, the first made on or about 18 September 2000, amended by a codicil dated 20 March 2011 (the first will). Under that first will and codicil the executors were John Mathew Rakich and Jennifer Gay Rakich. The deceased’s estate was to be divided, after funeral and other expenses, equally between his five children.

[3] The deceased also made a later will on or about 15 November 2013 (the second will). Under the second will the executors were John Mathew Rakich and a solicitor, Mr David Cox. The deceased’s estate was to be divided, after funeral and other expenses, between Martha, Jennifer, Mark, Andrea and a trust for the benefit of John Rakich, again equally.

[4] Issues arose between the family of the deceased concerning: (a) the deceased’s estate;
(b) John Mathew Rakich’s rights/occupation of the property where he and

the deceased had lived prior to the deceased’s death; and

(c) the testamentary capacity of the deceased at the time he made his second will.

[5] Jennifer Rakich brought these proceedings against the named executors of the second will seeking a variety of orders, including:

(a) an order appointing her as administrator of the estate of the deceased pursuant to the first will and codicil;

(b)an order declaring that the second will was not capable of being declared valid under the Wills Act 2007;

(c) payment of occupation rental by John Mathew Rakich;

(d)an order requiring the defendants to prove or renounce probate of the second will and to produce the second will to the Court.

[6] Statements of defence were filed by the second named defendant. They put in issue the challenge to the deceased’s testamentary capacity when he made the second will.

[7] However, following a meeting a written settlement agreement was concluded between the parties. The parties accept that in practice there is very little…

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 Rakich v Cox

Details

AGLC: Rakich v Cox [2015] NZHC 703
Case: [2015] NZHC 703
Decision Date: 15 April 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff, Jennifer Gay Rakich, brought proceedings against the defendants, David John Graeme Cox and John Mathew Rakich, regarding the estate of the deceased, Walter John Andrew Rakich. The dispute centred on the validity of the deceased's second will, dated 15 November 2013, and the subsequent appointment of an independent executor to manage the estate. The plaintiff sought, among other things, a declaration that the second will was invalid due to the deceased's lack of testamentary capacity at the time it was executed. The defendants, who were named executors in the second will, defended the proceedings by contesting the claim that the deceased lacked testamentary capacity.

The primary legal issue the Court had to resolve was whether the deceased had the requisite testamentary capacity to execute the second will on 15 November 2013. Additionally, the Court needed to determine the appropriate course of action following the conclusion of a settlement agreement between the parties, which proposed that probate be sought for the first will executed by the deceased on 18 September 2000. The Court also had to consider the implications of the defendants' renunciation of probate for the second will and the appointment of an independent executor for the estate.

The Court ruled that the deceased lacked testamentary capacity to make a valid will on 15 November 2013, based on expert medical evidence provided by Dr. Jane Casey, a consultant psychiatrist and psychogeriatrician, who concluded that the deceased was suffering from dementia and was not wholly competent to manage his own affairs. The Court found that the second will was not a valid will due to the deceased's lack of testamentary capacity. Consequently, the Court directed that the proceedings be treated as an application under rule 27.4 of the High Court Rules and that evidence on the application be given by affidavit. The Court also made an order declaring that the deceased lacked testamentary capacity to make a valid will on 15 November 2013, and that the will executed on that date is not a valid will. Finally, the Court granted a grant of probate in relation to the first will and codicil, subject to certain conditions being met, including the renunciation of probate by the named executors and the filing of consents by the relevant parties.

Orders