Strange v Dunn - [2022] NZHC 2648

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-145

[2022] NZHC 2648

BETWEEN
ANNETTE STRANGE

Plaintiff/Respondent

AND

JASON DUNN

Defendant/Applicant as executor and trustee of the Estate of Pauline Strange

Hearing: 23 September 2022

Appearances:

N J Newbery and C D Batt for Plaintiff/Respondent S Barker for Defendant/Applicant

Judgment:

13 October 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1] Pauline Strange died on 22 March 2021. As at that date she had six children and 12 grandchildren. She left a will dated 11 September 2009. It is a spare document. Essentially, Mrs Strange appointed one of her children, the defendant, Jason Dunn, as her executor and trustee, and left her entire residuary estate to Jason on the basis that he was to distribute it in accordance with instructions she said she had “passed to him during [her] lifetime”.

[2] Mrs Strange left no written instructions to Jason. However, a week or so prior to executing her will, on 2 September 2009, Mrs Strange, seemingly with Jason’s assistance, prepared a list of her assets, and, prior to attending an appointment with the solicitors who prepared her will, Kapiti Law, she made a list of beneficiaries which named her children and grandchildren.

STRANGE v DUNN [2022] NZHC 2648 [13 October 2022]

[3] The estate consists of an unencumbered freehold property in Martinborough, cash, and some other assets. The parties have different views as to the fair market value of the property in Martinborough, and therefore the value of the estate. In the end, it does not appear to me that a great deal turns on this. On the evidence, Mrs Strange’s estate would appear to have a value of between $800,000 and
$1,000,000.

[4] Jason’s evidence is that Mrs Strange’s instructions to him were clear. He says that she told him that once the net value of the estate was ascertained he was to pay
$150,000 to her six children in equal shares (so $25,000 each) and another $150,000 to her twelve grandchildren in equal shares (so $12,500 each), and that he was to inherit the balance (which, allowing say $50,000 for estate administration costs, might come to something like $550,000). He says that the $300,000 to be distributed to the children and grandchildren bore some relationship to Mrs Strange’s own valuation of her estate prior to the execution of her will. In fairness it should be mentioned that Jason is supported in aspects of this by other family deponents.

[5] In this proceeding, Annette Strange, another one of Mrs Strange’s children, seeks an order to the effect that Mrs Strange’s will is void for uncertainty, which, because this is the only will that Mrs Strange made, would result in an intestacy and the equal division of the net estate between her children. Annette also seeks an order removing and replacing Jason as the executor and trustee of Mrs Stranger’s will.

[6] Apparently, this dispute in relation to Mrs Strange’s estate echoes…

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 Strange v Dunn

Details

AGLC: Strange v Dunn [2022] NZHC 2648
Case: [2022] NZHC 2648
Decision Date: 13 October 2022

CaseChat Overview and Summary

The case of Strange v Dunn [2022] NZHC 2648 involved a dispute over the estate of Pauline Strange, who had passed away, leaving a will that appointed her son, Jason Dunn, as executor and trustee. The will left her entire residuary estate to Jason, with instructions that he distribute it according to certain directions she had given him during her lifetime. However, no written instructions were left, leading to a dispute between Jason and Annette Strange, one of Pauline's daughters, who sought to have the will declared void for uncertainty and for Jason to be removed as executor and trustee.

The court considered the application for security for costs by Jason, as Annette was residing in Australia. The court acknowledged the difficulties in such applications, balancing the claimant's right to access justice against the respondent's right not to incur costs if unsuccessful. The court found that while the threshold test was met, the application should not proceed further due to considerations such as the arguable merits of Annette's claim, the potential difficulty Annette might face in meeting a costs award, and the conduct of the litigation. The court also noted that had Jason sought court approval earlier, the outcome might have been different.

Ultimately, the court dismissed Jason's application for security for costs, reserving costs for later determination. The decision highlighted the importance of considering various factors, including the relationship between jurisdictions, the claimant's financial position, and the arguable merits of the claim, in making an order for security of costs.

Orders