Tarr v Allison
[2023] NZHC 601
•23 March 2023
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.
Ms Tarr’s tailored discovery application
[7] Ms Tarr seeks tailored discovery orders and costs.1 The grounds on which the orders are sought are:2
(a)The documents sought are relevant.
(b)It is in the interests of justice.
(c)The orders sought are reasonable and proportionate.
[8]The tailored discovery Ms Tarr seeks comprises:3
(a)All correspondence (including letters, emails, texts, messages on Facebook, WhatsApp and/or similar platforms) in the applicant and will beneficiaries’ power, possession or control relating to the deceased from 1 July 2019 until 26 October 2020.
(b)The deceased’s call records for inward and outward calls on landline ((09) 834 6825) from 1 July 2019 – 26 October 2020. The defendant to request and discover these.
(c)The defendant places a Will notice in the Law Society newsletter for three consecutive months after the discovery order has been made. All responses are to be discovered.
(d)All the deceased’s medical records from 26 October 2017 – 26 October 2020 (including those already disclosed). The defendant to uplift and discover these.
(e)Any files including (but not limited to) those held by lawyers or accountants that relate to transactions entered and/or completed by the deceased from 29 June 2019 – 26 October 2020. The defendant to make the necessary inquiries, uplift and discover these.
(f)All the deceased’s bank statements from 29 June 2019 until the present date. The defendant to uplift these.
1 Interlocutory application by plaintiff for tailored discovery orders dated 26 August 2022 at [1].
2 At [2].
3 At sch A.
(g)A full accounting of all assets, liabilities, and financial position generally of Peter Allison and Noelene Coldicutt, at the time of Mr Allison’s death, with supporting documents.
Affidavit of Leilania Tarr dated 26 August 2022
[9] Ms Tarr has made an affidavit in support of her application for tailored discovery. She explains her reasons why she seeks each category of documents. As to correspondence relating to the deceased between 1 July 2019 and 26 October 2020, Ms Tarr says she does not think Mr Allison and Ms Coldicutt were as close to the deceased as they claim they were, and discovery of the correspondence will help to prove so. She says further that she is interested in examining what communication took place relating to the deceased once his partner of 15 years, Daphne Gibson (Ms Gibson), passed away in June 2019, and to better understand what he intended to do with his property on his death.4
[10] As to the call records from 1 July 2019 to 26 October 2020, Ms Tarr deposes that she believes these would again show that Mr Allison and Ms Coldicutt had very little contact with the deceased in 2019. She says she cannot see why the records would be difficult to obtain.5
[11] On the will notice in the Law Society newsletter, Ms Tarr says she wants a fair opportunity to see if there is any further will for the deceased. She says she does not understand why this would be an unreasonable request.6
[12] On the medical records from 26 October 2017 to 26 October 2020, Ms Tarr says she has engaged a specialist geriatrician and she wants her to have full access to as much relevant medical information as possible. She says she is not aware of any significant extra cost associated with requesting medical records over those three years.7
4 Affidavit of Leilania Tarr in support of application for tailored discovery dated 26 August 2022 at [2]–[4].
5 At [5]–[6].
6 At [7].
7 At [8]–[9].
[13] Turning to the files relating to the deceased’s transactions between 29 June 2019 and 26 October 2020, Ms Tarr says it is important to get a full understanding of the deceased’s property affairs and intentions on his death, and that these documents will assist in that objective.8
[14] As to bank statements from 29 June 2019 to the present date, Ms Tarr deposes it is important to get an understanding of what the deceased was doing from the time Ms Gibson passed away in June 2019. She says she is unaware that requesting these bank statements would cause significant extra expense.9
[15] Finally, Ms Tarr says that because she is being asked for her financial position, it is only fair that Mr Allison and Ms Coldicutt disclose theirs.10
Will Beneficiaries’ notice of opposition to Ms Tarr’s tailored discovery application
[16]The Will Beneficiaries oppose Ms Tarr’s application.11
[17]The grounds of opposition are:12
(a)The deceased’s will which is the subject of each of three causes of action pleaded by the plaintiff was signed by him on 16 October 2020 and the deceased passed away on 26 October 2020, some ten days later.
(b)A summary of the three causes of action pleaded are as follows:
(i)The deceased lacked testamentary capacity when he made his said will;
(ii)The deceased was unduly influenced by his sister, Noelene Mary Coldicutt, so that the will he signed on 16 October 2020 was allegedly not his will;
(iii)The deceased was in breach of his moral duty to the plaintiff assessed at the date of death which was 26 October 2020 and that therefore the plaintiff is entitled to further provision
8 Affidavit of Leilania Tarr, above n 4, at [10]–[11].
9 At [12]–[13].
10 At [14].
11 Notice of opposition by will beneficiaries to plaintiff’s application for tailored discovery orders dated 13 September 2022 at [1]–[2].
12 At [3].
from the deceased’s estate for her proper maintenance and support in terms of the Family Protection Act 1955.
(c)The interests of justice do not require an order involving more or less discovery than an order for standard discovery would involve.
(d)The circumstances do not give rise to any presumption that the plaintiff is entitled to tailored discovery in terms of HCR 8.9 of the High Court Rules, in the categories referred to in the application or otherwise.
(e)Notwithstanding, the defendant and the will beneficiaries have agreed to tailored discovery in the categories referred to in schedule A (further copy attached), which is also attached to the joint memorandum of counsel dated 17 August 2022.
All correspondence relating to the deceased from 1 July 2019 to 26 October 2020.
(f)Category (a) of schedule A attached to the plaintiff’s interlocutory application is too broad in its scope and any discoverable documentation is sufficiently covered by category (b) of schedule A attached to the joint memorandum dated 17 August 2022. This is a fishing expedition.
The deceased’s call records from 1 July 2019 to 26 October 2020.
(g)Category (b) of schedule A attached to the plaintiff’s interlocutory application is too broad in its scope and refers to documents of no probative value. This category is actually directed at the defendant in his capacity as executor.
Will notices.
(h)Category (c) of schedule A attached to the plaintiff’s interlocutory application is directed at the defendant as executor who has already placed a notice in the Law Society newsletter with no response. A requirement to place twelve notices in the Law Society newsletter is disproportionate.
Deceased’s medical records from 26 October 2017 to 26 October 2020, covering three years.
(i)Category (d) of schedule A attached to the plaintiff’s interlocutory application is directed at the defendant as sole executor. The defendant and the will beneficiaries have in their possession medical notes for the deceased from his doctor, Dr Moore, and from Waitemata District Health Board, covering the period from 28 July 2020 to date of death. The plaintiff has not explained why medical records prior to 1 July 2020 are in any way relevant to the proceeding. The medical issue is whether or not the deceased lacked capacity on or about 16 October 2020.
Files relating to transactions entered and/or completed by the deceased from 29 June 2019 to 26 October 2020.
(j)Category (e) of schedule A attached to the plaintiff’s interlocutory application is directed at the defendant as sole executor. The Te Atatu property was inherited by the deceased from his partner, Daphne Gibson, in terms of her will when she died on about 30 June 2019. The manner in which the Te Atatu property was acquired by the deceased is not a transaction entered and/or completed by the deceased and has no relevance to the causes of action pleaded. Any documents would be held in a file belonging to the estate of Daphne Gibson, over which neither he nor they have any control.
Bank statements from 29 June 2019.
(k)The categories of documents that the will beneficiaries have agreed to provide are listed in schedule A attached to the joint memorandum filed on 17 August 2022. Otherwise they have consistently opposed the plaintiff’s demands for discovery of documents. This is a fishing expedition.
Particulars of assets and liabilities of will beneficiaries.
(f) The will beneficiaries oppose discovery of the category (g) documents referred to in schedule A attached to the plaintiff’s interlocutory application. Those documents are irrelevant. The will beneficiaries are not required to justify the extent that they benefit under the will and are not obligated to provide details of their financial position.
Will Beneficiaries’ cross-application for discovery orders
[18] The Will Beneficiaries cross-apply for discovery orders and costs.13 The grounds on which the orders are sought are:14
(a)The will beneficiaries rely upon the documents;
(b)The documents either adversely affect the plaintiff’s case or support the case of the will beneficiaries;
(c)The documents are relevant to the plaintiff’s claim for further provision for her maintenance and support against the deceased’s estate under the Family Protection Act 1955;
(d)It is in the interests of justice that the orders be made.
[19]The discovery the Will Beneficiaries seek comprises:15
1.Relevant documents relating to the estate of the plaintiff’s mother, who sadly died on 6 September 2021. The relevant documents would
13 Interlocutory cross-application by will beneficiaries for discovery orders dated 13 September 2022 at [1].
14 At [2].
15 At sch A.
include all documentation relating to any interest to which the plaintiff might be entitled to from her mother’s estate.
Heath McCrea Family Trust
2.In her first affidavit the plaintiff deposes that she and her family have an interest in the Heath McCrea Family Trust which owns two properties at 223A and 223B Williamson Road, Whangamata. Discovery with respect to such trust would include the following documents:
(a)A copy of the [Heath] McCrea Family Trust deed;
(b)Copies of resolutions made by the trustees that directly or indirectly affect the plaintiff;
(c)Current financial accounts for the Heath McCrea Family Trust;
(d)Particulars of assets and liabilities of the trust;
(e)Details of distributions over the past five years made from the trust to the plaintiff or her family;
(f)Any valuations of property owned by the trust;
(g)Any other relevant documents.
McCrea Family Trust New Zealand
3.In para .38 of the plaintiff’s first affidavit she refers to the McCrea Family Trust New Zealand. If that is a different trust from the Heath McCrea Family Trust, then orders for discovery are sought with respect to the same documents with respect to that trust as well.
Ms Tarr’s notice of opposition to Will Beneficiaries’ cross-application for discovery orders
[20]Ms Tarr opposes the Will Beneficiaries’ cross-application.16
[21]The grounds of opposition are:17
(a)The plaintiff’s financial position at the death of Mr Allison is what is relevant and required to be disclosed. Schedule A in paragraph [1] is therefore not required.
(b)The scope of the orders sought in Schedule 2 (a)-(g) and 3 are too wide and disproportionate. The plaintiff is prepared to provide a
16 Notice of opposition to discovery application by will beneficiaries dated 28 September 2022 at [1]–[2].
17 At [3].
balance sheet position of the Heath McCrea Family Trust and McCrea Family Trust New Zealand as of Mr Allison’s death.
(c)The interests of justice do not require the extent of discovery.
Affidavit of Leilania Tarr dated 28 September 2022
[22] Ms Tarr has filed an affidavit in support of her opposition to the Will Beneficiaries’ cross-application. She says she is happy to provide a balance sheet statement for the Heath McCrea Family Trust as of the date of the deceased’s passing. However, she says she does not believe the financial position of her partner Jason’s parents is relevant to her claim.18
Ms Tarr’s submissions
[23] Mr Skinner, for Ms Tarr, submits that the relationships between the deceased and Ms Tarr and the deceased and the Will Beneficiaries in later years are at issue in this proceeding. He says the sought correspondence is relevant to these issues and should be provided. He submits there is no evidence that discovering the relevant correspondence will be time-consuming and disproportionate. He says the same submission applies to the call records Ms Tarr seeks.19
[24] As to the request that a will notice be placed in the Law Society newsletter for three consecutive months, Mr Skinner reiterates Ms Tarr’s position that she wants a fair opportunity to see if there is a further will for the deceased. He says this is not an unreasonable request and is not disproportionate given the background and the sums of money involved in this proceeding.20
[25] Mr Skinner submits that the deceased’s medical background is relevant, and that the expert geriatrician Ms Tarr has retained should have the benefit of comprehensive medical background information. He submits that going back to July 2020 will not suffice and there is no evidence that providing medical records from 26 October 2017 through to 26 October 2020 will be disproportionate.21
18 Affidavit of Leilania Tarr in support of opposition to tailored discovery dated 28 September 2022 at [1]–[4].
19 Plaintiff’s synopsis of submissions dated 25 November 2022 at [13]–[19].
20 At [20].
21 At [21].
[26] On the files relating to the deceased’s transactions between 29 June 2019 and 26 October 2020, Mr Skinner says that the Court and the parties need to clearly understand what transactions the deceased entered into after Ms Gibson died. He submits this request is not disproportionate.22
[27] As to the deceased’s bank statements, Mr Skinner submits that Ms Coldicutt had control over the deceased’s finances, and that the deceased’s financial movements leading up to his death are relevant to the undue influence and testamentary capacity claims. He therefore says that the request for the deceased’s bank statements from 29 June 2019 to the present date is not disproportionate, and that the documents are relevant.23
[28] Turning to the final category of tailored discovery sought, Mr Skinner says that these documents are required from all Will Beneficiaries at the date of the deceased’s death.24
[29] As to the Will Beneficiaries’ cross-application, Mr Skinner submits that Ms Tarr is required only to provide her financial position at the time of the deceased’s death, which pre-dated her mother’s death. He says further that the sought discovery in respect of the Heath McCrea Family Trust and McCrea Family Trust New Zealand is too wide and disproportionate. Finally, Mr Skinner reiterates that Ms Tarr seeks costs and orders per her application.25
Will Beneficiaries’ submissions
[30] Mr Jenkin seeks to appear on behalf of the Will Beneficiaries, as well as on behalf of Mr Allison as sole executor. He submits that Ms Tarr is not seeking anything specific in the correspondence she has requested, and that she is therefore fishing. He says it is difficult to see the relevance of communications with the deceased other than those near to the date of the will, being 16 October 2020. Similarly, he submits that it is difficult to see how records of calls on the deceased’s landline are relevant to any of
22 Plaintiff’s synopsis of submissions, above n 19, at [22].
23 At [23].
24 At [24].
25 At [25]–[29].
the causes of action because the related discussions were obviously not recorded. He says obtaining these records will involve some cost and inconvenience and that they will not advance matters.26
[31] Mr Jenkin submits the request for a will notice to be placed in the Law Society newsletter for three months is disproportionate. He says Mr Allison has already placed a notice in the newsletter and received no response. Weekly notices for three months would be disproportionate and pointless. He submits this would be an unnecessary expense.27
[32] As to the medical records sought, Mr Jenkin concedes that medical notes are relevant to Ms Tarr’s capacity claim and possibly to her claim of undue influence. But he says there is no need to search for records dated prior to May 2020, when the deceased passed his test for his driver licence. He says there is certainly no need to go back as far as 2017, as Ms Tarr has requested. And he submits it is difficult to see how medical notes would be relevant at all in the context of Ms Tarr’s FPA claim.28
[33] Mr Jenkin then addresses Ms Tarr’s sought discovery, directed at Mr Allison as executor, in respect of transactions in which the deceased was involved between 29 June 2019 and 26 October 2020. He submits that any files relating to the Te Atatu property are presumably in the possession of Ms Gibson’s solicitor, and that if Ms Tarr wants that estate file she should apply for a third-party discovery order with respect to Ms Gibson’s estate. Further, he says, the reference to “transactions” is unspecific and it is impossible to imagine how unknown transactions could be relevant to any of Ms Tarr’s three causes of action.29
[34] Mr Jenkin says Ms Tarr’s affidavit expresses no specific reasons why the deceased’s bank statements from 29 June 2019 to the present day are relevant. He says she has not identified precisely what she is looking for in those statements.30
26 Synopsis of counsel for the will beneficiaries in opposition to application for tailored discovery and in support of cross-application dated 23 November 2022 at [13]–[16].
27 At [17].
28 At [18]–[19].
29 At [20]–[23].
30 At [24].
[35] On the final category of sought tailored discovery, being a full accounting of the Will Beneficiaries’ financial positions, Mr Jenkin submits that Ms Tarr’s stated reason for the disclosure is that they have asked the same from her. But he says discovery need not be perfectly reciprocal. Mr Jenkin submits it is essential that the Will Beneficiaries understand Ms Tarr’s financial position, as that information is relevant to whether there has been a breach of moral duty. He says, however, that the Will Beneficiaries’ financial positions are not relevant to the claims Ms Tarr has brought. And he says the Will Beneficiaries have no obligation as a matter of law to disclose documents relating to their financial positions.31
[36] Turning to the Will Beneficiaries’ cross-application, Mr Jenkin submits that it is important in the context of Ms Tarr’s FPA claim that the primary documents setting out full particulars of the assets owned by the McCrea Family Trust New Zealand, and the income generated and paid to Ms Tarr and/or her family, ought to be disclosed. He says further that given the recent death of Ms Tarr’s mother, documentary evidence disclosing exactly what her entitlement is or might be from her mother’s estate should also be made available. He says documents relating to Ms Tarr’s assets and liabilities and the income of her and her family are directly relevant to her claim for further provision for maintenance and support.32
Ms Tarr’s further submissions
[37] Mr Skinner filed further submissions on Ms Tarr’s behalf, in response to the Will Beneficiaries’ submissions of 23 November 2022. On the issue of representation, he says he cannot see how Mr Jenkin can represent Mr Allison in his capacity as executor and as will beneficiary without a conflict of interest. He says the executor’s approach to the litigation will likely become an issue when it comes to determination of costs, but that at this stage Ms Tarr does not intend to take any formal steps concerning the executor’s position.33
31 Synopsis of counsel for the will beneficiaries, above n 26, at [24]–[34].
32 At [35]–[45].
33 Reply submissions on behalf of plaintiff to cross-application for discovery dated 5 December 2022 at [1]–[4].
[38] Mr Skinner submits that the executor and Will Beneficiaries are taking an obstructive approach to Ms Tarr’s reasonable and proportionate discovery requests. He says the continued opposition to provision of the sought phone records is difficult to reconcile with the alleged inconvenience and cost of the Will Beneficiaries requesting these documents from the relevant telecommunications provider. He reiterates that the documents should be provided, and the requested will notice be placed in the Law Society newsletter.34
[39] Furthermore, Mr Skinner says disclosure of the deceased’s medical records from before 2020 should not be declined simply because the deceased passed his driver licence that year. Again, he submits that a comprehensive medical record going back three years is not an unreasonable request or disproportionate.35
[40] As to the discovery sought of files relating to transactions in which the deceased was involved, Mr Skinner acknowledges that a third-party discovery order may be required. But he says that Mr Allison, as executor, should still at this stage provide the requested files, and that he should be taking a more proactive and cooperative approach to locating and disclosing any relevant files.36
[41] Finally, Mr Skinner says Ms Tarr will provide evidence of her financial position as of the date of the trial. He says she will agree to provide documentation setting out the interest to which she will be entitled to from her mother’s estate.37
Will Beneficiaries’ further submissions
[42] Mr Jenkin also filed further submissions on the Will Beneficiaries’ behalf, in response to Ms Tarr’s submissions of 25 November 2022. He submits that whatever label is given to the type of discovery pursued in these applications, being standard or tailored, the overriding test is one of relevance. Mr Jenkin maintains that the correspondence Ms Tarr seeks is too broad in scope and timing to be relevant. He submits the same is true of the deceased’s call records dating back to 1 July 2019. He
34 Reply submissions on behalf of plaintiff, above n 33, at [5]–[7].
35 At [8].
36 At [9].
37 At [11].
reiterates that Ms Tarr should pursue a third-party discovery order if she wishes to obtain a copy of files relating to the Te Atatu property.38
[43] Mr Jenkin disputes that Ms Coldicutt had control over the deceased’s finances, saying there is no need for the estate to disclose bank statements going back to 2019. Furthermore, he says there is no basis for a full accounting of the financial positions of the Will Beneficiaries — there is a conceptual difference between the deceased’s moral duty to Mr Allison and Ms Coldicutt and his moral obligation to provide maintenance. Mr Jenkin submits Ms Tarr has conflated the two concepts.39
[44] Returning to the Will Beneficiaries’ cross-application, Mr Jenkin says Ms Tarr has herself given evidence that she and her family are receiving significant income from the McCrea Family Trust New Zealand. He says it follows that she should disclose the trust deed, other trust documents that might define her entitlement, full financial statements going back two or three years and documents relating to the assets of the trust. Mr Jenkin says the same documentation ought to be disclosed in respect of the Heath McCrea Family Trust so that the full picture is revealed to the Court.40
Legal principles
[45]Rules 8.8 and 8.9 of the High Court Rules 2016 provide:
8.8Tailored discovery
Tailored discovery must be ordered when the interests of justice require an order involving more or less discovery than standard discovery would involve.
8.9Presumption as to tailored discovery
It is to be presumed, unless the Judge is satisfied to the contrary, that the interests of justice require tailored discovery in proceedings—
(a)where the costs of standard discovery would be disproportionately high in comparison with the matters at issue in the proceeding; or
(b)[Revoked]
(c)that involve 1 or more allegations of fraud or dishonesty; or
(d)in which the total of the sums in issue exceeds $2,500,000; or
38 Submissions by will beneficiaries in response to plaintiff’s synopsis dated 5 December 2022 at [7]–[11] and [14]–[15].
39 At [16]–[20].
40 At [21]–[29].
(e)in which the total value of any assets in issue exceeds
$2,500,000; or
(f)in which the parties agree that there should be tailored discovery.
[46] Proportionality is central to tailored discovery.41 The starting point in considering appropriate tailored discovery orders will be an analysis of the issues. Discovery categories will reflect the issues and will only be ordered for discovery of documents relevant to those issues — “fishing” expeditions are not permitted.42
Analysis
[47]I deal with the issues to be determined in this decision as follows:
(a)Whether the documents in each of the categories (a) to (g) sought for tailored discovery by Ms Tarr in her application should be discovered?
(b)Whether the documents sought by the Will Beneficiaries in their cross- application should be discovered?
[48]I deal with each of these in turn.
Whether the documents in each of the categories (a) to (g) sought by Ms Tarr for tailored discovery should be discovered?
Category (a)
[49] In this category, Ms Tarr seeks all correspondence (including letters, emails, texts, messages on Facebook, WhatsApp and/or similar platforms) in the applicant and the Will Beneficiaries’ power, possession or control relating to the deceased from 1 July 2019 until 26 October 2020.
[50] Mr Skinner submits that discovery of these documents is relevant as the relationships between the deceased and Ms Tarr on the one hand, and the deceased and the Will Beneficiaries on the other hand, are in issue in this proceeding. He submits
41 Commerce Commission v Cathay Pacific Airways Ltd [2012] NZHC 726 at [12]; and Goodman Fielder Consumer Foods Pty Ltd v Heinz Wattie's Ltd [2017] NZHC 177 at [12].
42 Commerce Commission v Cathay Pacific Airways Ltd, above n 41, at [13].
that Ms Tarr claims that she and the deceased had a close relationship in later years, but the Will Beneficiaries deny this and say the relationship often appeared awkward and fractious, while the Will Beneficiaries claim they were very close to the deceased, which Ms Tarr denies.
[51] Mr Skinner submits that it is sensible to start discovery from 1 July 2019 after Ms Gibson passed away on 30 June 2019 because of the closeness of the relationship and the events that took place after that, including the deceased hiding the fact he owned a Te Atatu property, seeing separate lawyers and giving instructions on completely different wills, deteriorating in health and being placed under pressure by Ms Coldicutt during that period.
[52] Mr Skinner submits that the Will Beneficiaries have provided no evidence that this will be a costly or time-consuming exercise and disproportionate. Mr Skinner submits this is significant litigation, but the discovery exercise is not significant when considering the amount of money involved.
[53] In response to the Will Beneficiaries’ argument that the scope of the category is too broad and refers to documents which have no probative value, Mr Skinner submits that it is not too broad as the expectation is there will be limited documentation available. He says it is relevant to the allegation of undue influence the extent to which the Will Beneficiaries were involved in the deceased’s testamentary plans compared with how close they were to the deceased prior to becoming involved in those testamentary plans.
[54] Mr Jenkin, on the other hand, submits that the date range sought by Ms Tarr from 1 July 2019 to 26 October 2020 is too wide and only correspondence around the time the will was made in October 2020 is relevant. He submits that Ms Tarr has not identified anything specific she is looking for and it is therefore a fishing expedition.
[55] In his supplementary submissions, Mr Jenkin submits that the deceased was part of the older generation and did not use social media platforms. He further says that none of the reasons advanced by Ms Tarr for discovery of these documents, being the events following Ms Gibson’s death, justifies an enquiry going back to July 2019.
Conclusion in relation to category (a)
[56] My conclusion is that the documents in category (a) should be discovered. The relationships of the deceased with Ms Tarr, and the deceased with Mr Allison and Ms Coldicutt respectively, are clearly in issue in these proceedings in relation to the undue influence claim and the FPA claim. Consequently, documents which may shed light on these respective relationships are relevant and should be discovered.
[57] As submitted by Mr Skinner, there is no evidence that discovery of these documents would be disproportionately burdensome to the Will Beneficiaries and indeed, if their evidence is accepted that the deceased did not use messaging or social media platforms, there will be very few documents to be discovered.
Category (b)
[58] This category relates to the deceased’s call records for inward and outward calls on landline (09) 834 6825 from 1 July 2019 to 26 October 2020 and for Mr Allison as executor to request and discover these.
[59] Mr Skinner submits that the reason for seeking discovery of the documents in category (b) is the same as the reason submitted in respect of the documents in category (a). The intention is to shed light on the deceased’s relationships with Ms Tarr on the one hand, and with Mr Allison and Ms Coldicutt, on the other.
[60] Mr Jenkin submits that it is difficult to see how records of inward and outward calls on the deceased’s landline are relevant to any of the causes of action, given that the discussion is obviously not recorded. He submits they certainly have no relevance to the FPA claim and that there will be some inconvenience and cost in obtaining these records which will add nothing to the case.
Conclusion in relation to category (b)
[61] My conclusion is that the records sought in category (b) should be discovered. As pointed out by Mr Jenkin, the contents of the discussions are not recorded but in my view the records may shed some light on the level of contact between the deceased and Ms Tarr, and between the deceased and Mr Allison and Ms Coldicutt, for the
period from July 2019 to October 2020. This goes to the closeness of the relationship between the deceased and Ms Tarr on the one hand, and the deceased and the Will Beneficiaries on the other hand, which is in issue in these proceedings. While the probative value of these records may be limited, it should not be difficult to obtain these records and accordingly discovery is not disproportionate.
Category (c)
[62] Under this category, Ms Tarr is seeking that Mr Allison as executor place a weekly will notice in the Law Society newsletter for three consecutive months with all responses to be discovered.
[63] Mr Skinner submits that Ms Tarr wants a fair opportunity to see if there is a further will for the deceased. He submits it is not an unreasonable request nor disproportionate given the background and sums of money involved in this litigation.
[64] On the other hand, Mr Jenkin submits that this requirement is disproportionate. He submits that Mr Allison has, through his solicitor, already placed a notice in Law Talk in which there has been no response, and weekly notices for three consecutive months is disproportionate, pointless and an unnecessary expense.
Conclusion in relation to category (c)
[65] My conclusion in relation to category (c) is that some further advertising should be carried out to ensure there is no other will. As it appears from the evidence that the deceased gave two separate sets of will instructions, in my view there is an identified risk and it is reasonable that some extra steps be taken to check for any further wills. However, in my view, the order sought by Ms Tarr for weekly notices for three months is excessive. It would seem reasonable to require notices to be placed in the Law Society newsletter for a month from the date of this order and all responses to be discovered.
Category (d)
[66] Under this heading, Ms Tarr seeks all the deceased’s medical records from 26 October 2017 to 26 October 2020 (including those already disclosed). She seeks an order that Mr Allison as executor is to uplift and discover these.
[67] Mr Skinner submits that the deceased’s medical background is relevant and so far medical information has only been provided from July 2020. Mr Skinner submits that Ms Tarr has engaged an expert geriatrician who should have a comprehensive medical background and that there is no evidence that going back three years to 26 October 2017 will be disproportionate.
[68] Mr Skinner submits that it is possible that the deceased did not discuss his medical condition with his family until he was very unwell, and he could have been unwell long before he told Mr Allison about it in January 2020.
[69] Mr Jenkin on the other hand notes that the following medical records will be discovered:
(a)20 October 2020 to 26 October 2020 — Waitemata District Health Board medical notes;
(b)Peninsula Medical Centre medical file — Dr Carolynn Moore;
(c)4 September 2021 — Dr Moore’s letter to counsel;
(d)2008 onwards — doctors’ medical notes — 28 July 2020 to 20 October 2020.
[70] While Mr Jenkin acknowledges the medical notes are relevant to the testamentary capacity claim and perhaps to the claim of undue influence, there is no need to search before May 2020 when the deceased passed his test for a driver licence, and there is definitely no need to go back to 2017 as sought.
Conclusion in relation to category (d)
[71] My conclusion in relation to category (d) is that to the extent the deceased’s medical records have not already been disclosed (acknowledging there has been considerable disclosure by the executor and Will Beneficiaries), these should be provided. They are relevant to the assessment of testamentary capacity and relevant to the undue influence claim. As noted by Mr Skinner, Ms Tarr has engaged an expert geriatrician, and it is reasonable that that person should have access to all medical information relevant to the deceased. In my view discovery does not seem to be disproportionate to the potential probative value of these records.
Category (e)
[72] This category relates to any files, including files held by lawyers or accountants, that relate to transactions entered into and/or completed by the deceased from 20 June 2019 to 26 October 2020. An order is again sought that Mr Allison as executor make the necessary enquiries to uplift and discover these.
[73] This category seems to be primarily aimed at files from Mr Stephen Gulley, who acted for Ms Gibson and then took will instructions from the deceased. He had dealings with the deceased regarding the transmission of the Te Atatu property following Ms Gibson’s death. Mr Skinner submits Ms Coldicutt’s actions concerning the deceased’s intentions with the Te Atatu property are directly relevant to the undue influence claim and also relevant to the deceased’s intentions when he spoke to the Will Beneficiaries and Ms Tarr separately in January 2020 and the dispute over whether he used the words “estate” or “Onehunga unit”. He submits the request is not disproportionate.
[74] Mr Jenkin, on the other hand, submits that Mr Gulley acted for Ms Gibson’s estate and presumably facilitated the distribution of the Te Atatu property to the deceased in accordance with her will. He submits that it is not a transaction file that is in the power and/or control of Mr Allison and that Ms Tarr should apply for an order for third party discovery in respect of the estate of Ms Gibson.
[75] As to the letter (exhibited to Ms Tarr’s affidavit) from Mr Gulley to Ms Barron, the lawyer instructed to act for Mr Allison in his executor capacity, relating to will instructions the deceased gave to Mr Gulley at some point in October 2020, Mr Jenkin submits that Ms Barron has attempted to obtain copies of the file from Mr Gulley but he has refused to disclose it. These documents are therefore not in the control of Mr Allison and therefore discovery should not be ordered. He submits a third party discovery order may be required against Mr Gulley.
Conclusion in relation to category (e)
[76] My conclusion in relation to this category is that Mr Allison should attempt to obtain the relevant documents/file from Mr Gulley by requesting them. If Mr Gulley refuses to provide them, then Ms Tarr will need to obtain a third party order for discovery in respect of the documents.
[77] There is no evidence before the Court of other files held by professional advisers to the deceased to which the discovery order was intended to relate, but I consider that an order should be made that is wide enough to encompass such other files providing they exist, are relevant and are in the possession or control of the Will Beneficiaries and/or Mr Allison as executor.
Category (f)
[78] This category relates to the deceased’s bank statements for the period from 29 June 2019 until the present date. Ms Tarr is again seeking an order that Mr Allison as executor is to uplift these and discover them.
[79] Mr Skinner submits that the statement of claim states that Ms Coldicutt had control of the deceased’s finances and has admitted that payments were made to her and Mr Allison. He further submits the deceased’s financial movements leading up to his death are relevant to the undue influence and capacity claims, particularly in the light of the secretive nature of the deceased’s handling of the Te Atatu property following Ms Gibson’s passing. Mr Skinner submits the request is not disproportionate and the documents are relevant and should be disclosed.
[80] Mr Jenkin submits that Ms Tarr has given no specific reason as to why the bank statements are relevant and has not identified precisely what she is looking for.
Conclusion in relation to category (f)
[81] My conclusion in relation to category (f) is that while, from the evidence before the Court, the bank statements are likely to have limited relevance, they may disclose transactions relevant to the allegation of undue influence, and given that obtaining the documents should be straightforward, disclosure is not disproportionate. Accordingly, these documents should be obtained and disclosed.
Category (g)
[82] This category relates to a full accounting of all assets, liabilities and financial position generally of Mr Allison and Ms Coldicutt at the time of Mr Allison’s death with supporting documents.
[83] Ms Tarr in her affidavit states the reason why she wants disclosure of the assets, liabilities and financial position for the Will Beneficiaries is because they have asked for disclosure of her financial position from her and therefore it is only fair that they reciprocate.43
[84] Mr Skinner submits that the position put forward by the Will Beneficiaries in relation to the decision in Fisher v Kirby44 is inconsistent with the position reached by the Court in Williams v Aucutt45 and the decision in Jew v Jew.46
[85] Mr Jenkin submits the current legal position is as set out in Fisher v Kirby and also refers to the first instance decision of Clifford J in Kirby v Sims.47 He points to Clifford J’s decision where the Court accepted that Will Beneficiaries, generally speaking, had no obligation to justify bequests made to them in the will.
43 Affidavit of Leilania Tarr, above n 4, at [14].
44 Fisher v Kirby [2012] NZCA 310, [2013] NZFLR 463 at [131].
45 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [8].
46 Jew v Jew [2019] NZHC 192 at [18].
47 Kirby v Sims HC Wellington CIV-2010-485-794, 22 August 2011 at [98].
[86] Mr Jenkin submits that the financial position of the Will Beneficiaries is only likely to be relevant in those cases where the Court is satisfied that the assets of the estate are insufficient to meet the moral claims of both claimant and beneficiaries and the question of distributive justice arises (as in Re Sutton).48 Mr Jenkin submits that distributive justice is not an issue in the present case.
[87] With respect to the decision in Jew v Jew, Mr Jenkin submits that this seems to be contrary to authority. He submits that neither the first instance decision of Clifford J in Kirby v Sims nor the Court of Appeal judgment was cited in the Jew v Jew decision and the cases seem not to have been drawn to the Court’s attention.
Conclusion in relation to category (g)
[88] In relation to this category, I am of the view that the Will Beneficiaries should not be obliged to disclose their financial positions at the date of the deceased’s death. In my view the preferred position is that set out in Kirby v Sims and Fisher v Kirby and this Court should follow the authority that generally will beneficiaries do not have to justify provision in the will or disclose details of their financial position. Accordingly, Ms Tarr’s application in relation to category (g) is declined.
Will Beneficiaries’ cross-application
[89] The Will Beneficiaries have, in summary, sought discovery of the following from Ms Tarr:
(a)documents relating to any interest that Ms Tarr has received or might be entitled to from her mother’s estate, her mother passing away on 6 September 2021;
(b)documents listed in [2] of Schedule A of the cross application relating to the Heath McCrea Family Trust;
(c)the same documents in respect of the other trust referred to by Ms Tarr, namely the McCrea Family Trust New Zealand.
48 Re Sutton [1980] 2 NZLR 50 (CA).
[90]From Mr Skinner’s supplementary submissions dated 5 December 2022,
Ms Tarr is prepared to provide:49
(a)details of her financial position as at the date of the trial;
(b)documentation that sets out the interest Ms Tarr will be entitled to from her mother’s estate.
[91] Mr Skinner submits that these issues have not been raised in the pleadings. In relation to Heath McCrea Family Trust and the McCrea Family Trust New Zealand, Mr Skinner has submitted that the documents in Schedule A [2(a)] to [2(g)] and [3] of the Will Beneficiaries application is too wide and disproportionate. He submits that Ms Tarr is prepared to provide balance sheet positions of the Heath McCrea Family Trust and the McCrea Family Trust New Zealand as at the date of the deceased’s death and relies on the decision in Jew v Jew.50
[92] Mr Jenkin submits that Ms Tarr has directly put in issue the question of her financial position due to her claim for proper maintenance and support under the FPA claim. He submits that Ms Tarr has given evidence that she and her family are receiving significant income from the McCrea Family Trust New Zealand and accordingly has put in issue her and her family’s interest in that trust. He further submits that Ms Tarr acknowledges that she is a beneficiary in the Heath McCrea Family Trust which appears to own property in Whangamata and it is unclear whether or not Ms Tarr is receiving income from that trust. He submits balance sheet positions in respect of each trust as at the deceased’s date of death is insufficient to provide the Court with proper information as to Ms Tarr’s financial circumstances.
Conclusion in relation to Will Beneficiaries’ cross-application
[93] My conclusion in relation to the Will Beneficiaries’ cross-application is that the information sought from Ms Tarr regarding the two trusts of which she is a beneficiary and/or receives income is relevant to the FPA claim. The position put
49 Reply submissions on behalf of plaintiff to cross-application for discovery dated 5 December 2022 at [11].
50 Jew v Jew, above n 46, at [27].
forward by the Will Beneficiaries in favour of discovery of that information is consistent with authorities such as Fisher v Kirby and Williams v Aucutt.
[94] Orders are made accordingly below, but with some modifications to the information sought by the Will Beneficiaries in Schedule A to the cross-application.
Orders
[95]I make the following orders:
Ms Tarr’s application
(a)The Will Beneficiaries and/or Mr Allison in his capacity as executor will uplift and provide the following further discovery to Ms Tarr:
(i)all correspondence (including letters, emails, text, messages on Facebook, Whatsapp and/or similar platforms) in the Will Beneficiaries’ power, possession or control relating to the deceased from 1 July 2019 until 26 October 2020;
(ii)the deceased’s telephone records for inward and outward calls on his landline ((09) 834 6825) from 1 July 2019 to 26 October 2020;
(iii)all the deceased’s medical records from 26 October 2017 to 26 October 2020 (including those already disclosed); and
(iv)all the deceased’s bank statements from 29 June 2019 until the present date.
(b)Mr Allison will place a will notice in the Law Society weekly newsletter for one month from the date of this order. All responses are to be discovered to Ms Tarr.
(c)Mr Allison will make a further request for relevant files relating to the deceased and the estate of Ms Gibson from Mr Gulley. If Mr Gulley declines to provide those files, then if Ms Tarr wishes to pursue this
aspect of tailored discovery she will be required to make a third party discovery application.
To the extent that there are other files held by professional advisers to the deceased apart from Mr Gulley, for the period from 1 July 2019 to 26 October 2020, and providing these files exist, are relevant, and are in the possession or control of the Will Beneficiaries and/or Mr Allison as executor, then the Will Beneficiaries and/or Mr Allison as executor will make a request of the relevant professional adviser, and if the files are provided, to discover these to Ms Tarr.
(d)Ms Tarr’s application for full accounting of all assets, liabilities and financial position generally of Mr Allison and Ms Coldicutt at the time of the deceased’s death with supporting documents is declined.
Will Beneficiaries’ cross-application
(e)The Will Beneficiaries’ cross-application for discovery by Ms Tarr is granted as follows:
(i)By consent, Ms Tarr will provide evidence of her financial position as at the date of the trial and provide documentation that sets out the interest Ms Tarr will be entitled to from her mother’s estate;
(ii)In relation to the Heath McCrea Family Trust, the following documents are to be discovered:
1. A copy of the Heath McCrea Family Trust deed.
2. Copies of resolutions made by the trustees that directly or indirectly affect Ms Tarr.
3. Current financial accounts for the trust.
4. Particulars of assets and liabilities of the trust.
5. Details of distributions over the past five years made from the trust to Ms Tarr or her family.
6. Any valuations of property owned by the trust which are available.
(iii)In relation to the McCrea Family Trust New Zealand, the following documents are to be discovered:
1. A copy of the McCrea Family Trust New Zealand Trust deed.
2. Copies of resolutions made by the trustees that directly or indirectly affect Ms Tarr.
3. Current financial accounts for the trust.
4. Particulars of assets and liabilities of the trust.
5. Details of distributions over the past five years made from the trust to Ms Tarr or her family.
6. Any valuations of property owned by the trust which are available.`
Costs
[96] Costs are reserved. Counsel are directed to agree costs within 20 working days of the date of this judgment. If costs are not agreed within the 20 working day period:
(a)counsel for Ms Tarr will file a memorandum as to costs (not exceeding five pages) within 10 working days of expiry of the 20 working day period;
(b)counsel for the Will Beneficiaries will file a memorandum as to costs (not exceeding five pages) in reply within five working days of receipt of counsel for Ms Tarr’s memorandum;
(c)costs will then be determined on the papers.
Associate Judge Taylor
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