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 in respect of these proceedings. They seek costs on a scale 2B basis in the sum of $2,868 together with reasonable disbursements in the sum of $603.25.

[10]             The applicants refer to the standard costs procedures to the extent that costs should follow the event and the party who fails in respect of proceeding for an interlocutory application should pay costs to the party who succeeds. The applicants say that they are wholly successful and that costs sought on a 2B basis are reasonable.

[11]             Counsel for the respondents take no issue with the factual background set out in the memorandum filed by counsel for the applicants and accept that in the normal course of events, costs follow the event. The reasonableness of the quantum of the costs claimed is also not disputed.

[12]             However, counsel relies on the fact that, in his submission, there is a “very strong” family protection and testamentary promises claim available to the first and second respondents and says that if such proceedings are resolved in favour of the respondents, costs will be an issue.

[13]             The memorandum of counsel does not confirm that a family protection and/or testamentary promises proceedings have yet to be issued and accordingly, I infer that they are not. However, counsel submits that it is appropriate to allow the application for costs to remain “on the table” pending the conclusion of the “substantive proceedings”. The reference to “substantive proceedings” appears to be the proposed family protection and/or testamentary promises claims. It is submitted that there will be no disadvantage with such an order.

Discussion

[14]             There is a fundamental difference between a caveat lodged in respect of an application for a grant of probate and either testamentary promises or family protection proceedings. The lodging of a caveat challenges the validity of the will, whereas testamentary promises or family protection proceedings assume that the will is valid but rely on a specific promise or promises made by the deceased to the applicants which should be enforced from the estate of the deceased or they rely on a breach of duty on the part of the deceased.

[15]             Given the legal steps taken by the respondents, the applicants had no option but to formally apply for probate. The withdrawal of the caveat by the respondents indicates that they accept there was no basis for lodging it.

[16]             The estate has been put to expense in initiating these proceedings. The applicants have been the successful party in respect of these proceedings and in the ordinary course of events are entitled to costs. The sum claimed by the applicants is reasonable.

[17]             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 is not a matter that justifies departing from the standard principle that costs should follow the event.

[18]             If such proceedings are issued and if the respondents are successful, then the costs of those proceedings will be dealt with by the presiding Judge in the normal way.

Outcome

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

Churchman J

Solicitors:

Willis Legal, Hastings for Applicants Langley Twigg, Napier for Respondents