Roberts v Jackson - [2023] NZHC 3069

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2023-485-602948

[2023] NZHC 3069

IN THE ESTATE of Evelyn May Lemm

BETWEEN

EMMA LOUISE ROBERTS and MARK

LESLIE ROBERT GOODSON as executors of the estate of Evelyn May Lemm Applicants

AND

DAVID MICHAEL JACKSON

First Respondent

AND

HOLLY GRACE JACKSON

Second Respondent

Hearing: (On the papers)

Counsel:

M A B Black for Applicants

J F McDowell for Respondents

Judgment:

1 November 2023

JUDGMENT OF CHURCHMAN J

[Costs]

[1] Evelyn May Lemm (“the deceased”) died at Hastings on 16 February 2023. She left a will dated 10 February 2023 (“the Will”). The Will named Emma Louise Roberts and Mark Leslie Robert Goodson (“the applicants”) both of Napier, solicitors as executors.

[2] After three specific bequests, the Will directed the deceased’s estate be divided into 10 parts, six of which were to go to the deceased’s grandson, Jayden Victor Robert Jackson, and two parts each to go to the deceased’s daughter, Holly Grace Jackson, and her son, David Michael Jackson (“the respondents”).

ROBERTS & ANOR v JACKSON & ANOR [2023] NZHC 3069 [1 November 2023]

[3] The terms of the Will represented a change from the will that it had replaced, which had provided for an equal share of the deceased’s residuary estate to be divided between the first and second respondents.

[4] On 7 March 2023, the applicants applied to the Court for probate of the Will. On 9 March 2023, the respondents lodged a caveat preventing probate being granted.

[5] On 7 August 2023, the applicants filed these proceedings seeking an Order Nisi for Grant of Probate of the Will.

[6] On 17 August 2023, the Order Nisi was issued and the respondents were directed to appear on Monday, 4 September 2023 to show just cause why the order should be made absolute and Probate of the Will granted to the applicants.

[7] The matter was called on 4 September 2023, with Walker J making timetabling directions. The respondents appeared in person. Although they had not filed a formal notice of opposition, they raised concerns about the capacity of the deceased at the time of the execution of the Will. The Minute of Walker J referred to the letter of explanation provided by the deceased in relation to the decisions made in her Will and also to the medical certificate from the medical practitioner who certified the deceased’s capacity and the discussions between the doctor and the deceased between 27 January 2023 and 9 February 2023.

[8] The Minute gave the respondents until 5:00 pm on 18 September 2023 to file a notice of opposition and an affidavit in support of that notice. The Minute concluded by recommending the respondents take legal advice so that they were fully apprised of the costs implications and impact on the estate of any steps they might elect to take. The respondents withdrew their caveat on 21 September 2023.

Costs application

[9] The applicants now seek costs…

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 Roberts v Jackson

Details

AGLC: Roberts v Jackson [2023] NZHC 3069
Case: [2023] NZHC 3069
Decision Date: 1 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Napier Registry, the applicants, Emma Louise Roberts and Mark Leslie Robert Goodson, sought a grant of probate of the will of the deceased, Evelyn May Lemm. The respondents, David Michael Jackson and Holly Grace Jackson, lodged a caveat against the grant of probate, raising concerns about the deceased's capacity at the time of executing the will. The applicants subsequently filed proceedings seeking an Order Nisi for Grant of Probate, which was issued on 17 August 2023, with the respondents directed to appear to show cause against the making of the order absolute. The respondents raised their concerns about the deceased's capacity at the time of executing the will and were given until 18 September 2023 to file a notice of opposition and an affidavit in support. The respondents withdrew their caveat on 21 September 2023.

The court was required to determine whether the applicants were entitled to costs in respect of the proceedings. The applicants sought costs on a scale 2B basis in the sum of $2,868 together with reasonable disbursements in the sum of $603.25. The respondents did not dispute the reasonableness of the quantum of the costs claimed but argued that if the respondents were to pursue family protection or testamentary promises proceedings, costs would be an issue. The court considered that the fundamental difference between a caveat lodged in respect of an application for a grant of probate and either testamentary promises or family protection proceedings was that the former challenges the validity of the will, whereas the latter assumes that the will is valid but relies on a specific promise or promises made by the deceased which should be enforced from the estate of the deceased or they rely on a breach of duty on the part of the deceased.

The court found that the estate had been put to expense in initiating these proceedings and that the applicants had been the successful party in respect of these proceedings and, in the ordinary course of events, were entitled to costs. The sum claimed by the applicants was reasonable. The fact that the respondents may wish to pursue a family protection or a breach of testamentary promises claim at some time in the future was not a matter that justified departing from the standard principle that costs should follow the event. If such proceedings were issued and if the respondents were successful, then the costs of those proceedings would be dealt with by the presiding judge in the normal way.

The applicants were awarded costs in these proceedings against the respondents in the sum of $2,868 together with disbursements of $603.25.

Orders