Tarr v Allison - [2023] NZHC 601

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2014

[2023] NZHC 601

IN THE MATTER OF the estate of Thomas Henry Allison, formerly of Auckland, Retired, Deceased

UNDER

Part 27 of the High Court Rules 2016 and the Family Protection Act 1955

BETWEEN

LEILANIA KATIE-ANN PATRICIA TARR

Plaintiff

AND

PETER NEIL ALLISON

Defendant

Hearing: 8 December 2022

Counsel:

J M Skinner for plaintiff

G C Jenkin for defendant and Will Beneficiaries

Judgment:

23 March 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Discovery]

This judgment was delivered by me on 23 March 2023 at 1pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Skinners Law, Auckland for plaintiff G M Legal, Auckland for defendant

TARR v ALLISON [2023] NZHC 601 [23 March 2023]

Background [3]

Ms Tarr’s tailored discovery application [7]

Affidavit of Leilania Tarr dated 26 August 2022 [9] Will Beneficiaries’ notice of opposition to Ms Tarr’s tailored discovery application [16] Will Beneficiaries’ cross-application for discovery orders [18] Ms Tarr’s notice of opposition to Will Beneficiaries’ cross-application for discovery orders [20] Affidavit of Leilania Tarr dated 28 September 2022 [22] Ms Tarr’s submissions [23]

Will Beneficiaries’ submissions [30]

Ms Tarr’s further submissions [37]
Will Beneficiaries’ further submissions [42]

Legal principles [45]

Analysis [47]

Whether the documents in each of the categories (a) to (g) sought by Ms Tarr for tailored
discovery should be discovered?  [49]
Will Beneficiaries’ cross-application  [89]
Orders  [95]
Costs  [96]

[1] The plaintiff in this proceeding, Leilania Tarr (Ms Tarr), applies for tailored discovery against Peter Allison (Mr Allison) as executor, as well as against Mr Allison and Noelene Coldicutt (Ms Coldicutt) together as beneficiaries of the will (the Will Beneficiaries).

[2]The Will Beneficiaries cross-apply for particular discovery against Ms Tarr.

Background

[3] This proceeding is about the estate of the deceased Thomas Allison (the deceased), who died on 26 October 2020. Ms Tarr is the deceased’s daughter. Mr Allison and Ms Coldicutt are the deceased’s siblings.

[4] Mr Allison is the executor of the deceased’s last known will, dated 16 October 2020. Probate of that will was granted on 15 December 2020. The will provides no specific bequests, with the estate to be split evenly between Ms Tarr, Mr Allison and Ms Coldicutt. Two properties are included in the deceased’s estate. One has been sold. The other, a property at 57 Taioma Crescent, Te Atatu Peninsula (the Te Atatu property), remains unsold.

[5] Ms Tarr has brought proceedings against Mr Allison and Ms Coldicutt, claiming probate of the October 2020 will should be recalled for lack of testamentary capacity or due to the deceased being subject to undue influence from Ms Coldicutt. In the alternative, she claims breach of moral duty under the Family Protection Act 1955 (FPA claim).

[6] The parties have been unable to agree on tailored discovery, and both have therefore filed interlocutory applications seeking orders.

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 Tarr v Allison

Details

AGLC: Tarr v Allison [2023] NZHC 601
Case: [2023] NZHC 601
Decision Date: 23 March 2023

CaseChat Overview and Summary

Leilania Tarr is the deceased daughter of Thomas Allison, who passed away on 26 October 2020. Thomas Allison's last known will, dated 16 October 2020, names Tarr, his brother Peter Allison, and his sister Noelene Coldicutt as equal beneficiaries. Tarr has brought proceedings against Allison and Coldicutt, seeking a recall of the will for lack of testamentary capacity or undue influence, or in the alternative, a claim for breach of moral duty under the Family Protection Act 1955. The primary legal issue in this case was whether tailored discovery should be ordered in favour of Tarr or the Will Beneficiaries, and if so, which documents should be discovered. The court found that tailored discovery should be ordered in favour of Tarr for certain documents, including correspondence, call records, medical records, and bank statements. The court also ordered that Allison place a will notice in the Law Society newsletter for one month. However, the court declined to order a full accounting of the Will Beneficiaries' financial positions. In relation to the Will Beneficiaries' cross-application for discovery, the court found that certain documents relating to Tarr's financial position and interests in two trusts were relevant and should be disclosed.

Orders