Schuitema v Schuitema - [2022] NZHC 3326

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-489

[2022] NZHC 3326

IN THE MATTER of an application for an order of probate in solemn form in the Estate of ELIZABETH PETRONELLA SCHUITEMA

BETWEEN

ROBERT PAUL SCHUITEMA and

ANTHEA JANE CONNOR as Executors of the Estate of Elizabeth Petronella Schuitema Plaintiffs/Counterclaim First Defendant

AND AND

AND

SARAH SCHUITEMA

First Defendant/Counterclaim First Plaintiff

ROBERT PAUL SCHUITEMA

Second Defendant/Counterclaim Second Defendant

JOHN JAMES SCHUITEMA
Counterclaim Second Plaintiff

SUSAN ELISABETH SCHUITEMA

Counterclaim Third Plaintiff

Hearing: 28 November 2022 (by AVL)

Appearances:

D Ballinger for Plaintiff/Counterclaim First Defendants (granted leave to withdraw)

S Harrigan for First Defendant/Counterclaim Plaintiff and Second and Third Counterclaim Plaintiffs

G Richards for Second Defendant/Counterclaim Second Defendant

Judgment:

9 December 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

SCHUITEMA v SCHUITEMA [2022] NZHC 3326 [9 December 2022]

[1] Robert Schuitema (Robert) is the son of the late Elizabeth Petronella Schuitema (Elizabeth). Robert is one of the executors of Elizabeth’s estate.

[2] Robert and Elizabeth were predeceased by Robert’s brother John who was known as Dick. Dick died in 2004.

[3] Dick left three children, John (counterclaim second plaintiff), Sarah (first defendant/counterclaim first plaintiff), and Susan (counterclaim third plaintiff).

[4] Robert’s mother, Elizabeth, left her estate entirely to him. She made no provision for her grandchildren on Dick’s side.

[5] The executors of Elizabeth’s Will, Robert and Anthea Connor (a solicitor) brought this proceeding following Sarah lodging a caveat to prevent the grant of probate of Elizabeth’s Will. The estate brought its application for probate in solemn form in August 2021 with Sarah as the caveator named as first defendant, and Robert as the sole beneficiary, named as the second defendant.

[6] John, Sarah and Susan have counterclaimed under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. They also allege that Elizabeth’s 8 July 2019 Will (the Will) was the result of undue influence from Robert.

[7] It seems Sarah had not had contact with her grandmother for five or six years before her death. However, an acquaintance of Elizabeth, Anita Evans, got in touch with Sarah following Elizabeth’s death expressing her view that Robert’s conduct towards Elizabeth may have influenced her Will. That contact occurred on 28 February 2021. Not quite a year later, Ms Evans provided an affidavit in support of the undue influence claim.

The present applications

[8] Robert, as second defendant, on 1 September 2022 sought discovery of three categories of documents. The first two categories were international travel records of Sarah, John and Susan, they being relevant to their claim that they spent time with

their grandmother on special occasions in both New Zealand and Australia. Those documents were provided after the issue of these proceedings, therefore leaving costs to be dealt with in respect of those categories.

[9] The remaining category of documents Robert seeks is all correspondence between the grandchildren and Ms Evans from 27…

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 Schuitema v Schuitema

Details

AGLC: Schuitema v Schuitema [2022] NZHC 3326
Case: [2022] NZHC 3326
Decision Date: 9 December 2022

CaseChat Overview and Summary

Robert Schuitema, the son of the late Elizabeth Petronella Schuitema and one of the executors of her estate, initiated proceedings for an order of probate in solemn form in the Estate of Elizabeth Petronella Schuitema. This was in response to Sarah Schuitema lodging a caveat to prevent the grant of probate. Sarah, along with her brothers John and Susan, counterclaimed under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949, alleging undue influence by Robert on Elizabeth’s Will. They sought discovery of documents to support their claims.

The court had to decide whether Robert was entitled to an order for discovery of certain documents under Rule 8.19 of the High Court Rules 2016. The key legal issues were whether the documents sought were relevant, whether there were grounds to believe the documents existed, whether the discovery was proportionate, and whether an order for discovery was appropriate in the circumstances. The court found that the correspondence between the grandchildren and Anita Evans, whose contact with Sarah followed Elizabeth’s death, was relevant to the undue influence claim. Robert had shown there were grounds to believe the documents existed, as the discovered emails were in reply to messages that had not been found. The discovery was deemed proportionate and necessary to balance the parties' rights and the court’s discretion under Rule 8.19.

The court granted Robert's application for discovery, ordering Susan, John, and Sarah to provide supplementary affidavits listing the documents sought within 15 working days of the judgment. The court also addressed costs, ordering Sarah to pay Robert's costs on a 2B basis for his application, and Robert to be awarded costs on a 2B basis for his own application, along with disbursements as fixed by the Registrar. The court did not see the need for increased costs, noting that the applications were reasonably straightforward despite the lack of cooperation between counsel regarding discovery.

Orders