Rule v Rule - [2014] NZHC 1263

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5837 [2014] NZHC 1263

IN THE MATTER OF
the Estate of MURIEL GWENDOLINE

RULE

BETWEEN

DOUGLAS IAN RULE and ELIZABETH JANE BELCHER Plaintiffs

AND

LESLEY LOUISE RULE and ANTHONY CHARLES BENNETT COUPE as Executors and Trustees of the Estate of MURIEL GWENDOLINE RULE

Defendants

Hearing: 4 June 2014

Appearances:

A MacMillan for Plaintiffs
S R Houliston for Defendants

Judgment:

4 June 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:
Barbara Knowles, Mairangi Bay, North Shore, Auckland, for Plaintiffs
McVeagh Fleming, Auckland, for Defendants

Counsel:
Alison MacMillan, Albany, Auckland, for Plaintiffs
J D Turner, Auckland, for Defendants

RULE and BELCHER v RULE and COUPE as Executors and Trustees of the Estate of MURIEL GWENDOLINE RULE [2014] NZHC 1263 [4 June 2014]

[1] The plaintiffs apply for an order for Mr Coupe, one of the defendants, to file further answers to interrogatories on the grounds that answers he has given are not sufficient, and in one case he has not answered interrogatories.

[2] This is a proceeding in respect of the estate of Muriel Gwendoline Rule who died at Auckland on 17 August 2011, leaving a will dated 19 July 2007. She appointed the defendants as executors. Under her will she left a life interest in a half share of a property at Rarere Road, North Shore, Auckland and the residue of her estate to her daughter, Louise. She had two other children, the plaintiffs. Under an earlier will made on 24 May 2007 she left to the plaintiffs her half share in the house property and left the rest of her estate to Louise.

[3] The plaintiffs run three causes of action:

(a) alleged lack of testamentary capacity;

(b) alleged undue influence on the part of Louise; and

(c) a claim under the Family Protection Act 1955.

[4] Ms MacMillan has identified these dates as relevant to the interrogatories:

(a) On 24 May 2007 Mrs Rule signed a will and power of attorney. That power of attorney appointed her son, Douglas.

(b) On 23 June 2007 she suffered a stroke and was hospitalised. (c) On 11 July 2007 she left hospital.
(d)On 12 July 2007 she signed new powers of attorney, this time revoking those appointing Douglas and instead executing powers of attorney in favour of Louise.

(e) On 19 July 2007 she signed the new will, effectively leaving all her estate to Louise, barring forgiveness of one debt owed by Jane.

[5] Mr Coupe is the lawyer who acted for the deceased. He prepared the wills and powers of attorney, both in May 2007 and in July 2007. The plaintiffs have interrogated Mr Coupe twice. The second interrogatories were served in December
2013. Mr Coupe did not give any response until January 2014 although he was required to do so within five working days. The plaintiffs say that they sought further clarification, but the defendants’ lawyers said that Mr Coupe was not going to provide any further answers.

[6] This…

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.

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Details

Case: [2014] NZHC 1263
Decision Date: 4 June 2014

CaseChat Overview and Summary

The case of Rule v Rule is a proceeding in respect of the estate of Muriel Gwendoline Rule who died in Auckland on 17 August 2011. She left a will dated 19 July 2007 appointing the defendants as executors. The plaintiffs, who are her children, are contesting the will on several grounds including lack of testamentary capacity, undue influence and a claim under the Family Protection Act 1955. The case has reached the point where the plaintiffs have applied for an order for Mr Coupe, one of the defendants and the lawyer who acted for the deceased, to file further answers to interrogatories. They contend that the answers Mr Coupe has given are not sufficient and in one case, he has not answered interrogatories at all. The plaintiffs have identified several interrogatories where they believe Mr Coupe's answers are lacking.

The legal issues the court needed to decide were whether Mr Coupe should be compelled to provide more detailed answers to the interrogatories, and if so, what those answers should be. The court also needed to determine if Mr Coupe's objections to answering certain questions were justified. The plaintiffs argued that the information sought was necessary to establish the deceased's testamentary capacity and to prepare for the trial. The defendants, on the other hand, argued that the interrogatories were seeking to elicit a brief of evidence and that the matters could be dealt with during the trial itself.

The court found that the plaintiffs' need for detailed information was justified as it was essential for expert evidence to be based on factual findings, which would be provided by the testimony of others, including Mr Coupe. The court held that Mr Coupe's answers were too general and did not address the specific points raised by the plaintiffs. The court directed Mr Coupe to provide more detailed answers to the interrogatories, particularly regarding his advice to the deceased about her moral duties and the effect of the will on her other children. The court also ruled that certain questions about the change in powers of attorney were relevant to the case and should be answered.

In summary, the court ordered Mr Coupe to provide more detailed answers to the interrogatories by a specified date and set out a timetable for the filing and serving of evidence and other case management directions. The court also ordered that costs of the application would follow the event.

Orders