Van Goch v Van Goch

[2019] NZHC 2978

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-404-001946

[2019] NZHC 2978

BETWEEN

SANDRA PETRONELLA VAN GOCH

Plaintiff

AND

JOHANNES MARINUS VAN GOCH as

executor of the estate of Maria Martina van Goch

First Defendant

AND

HELEN WILHELMINA CATHERINA VAN

GOCH as executor of the estate of Maria Martina van Goch

Second Defendant

AND

SANDRA PETRONELLA VAN GOCH as

executor of the estate of Maria Martina van Goch

Third Defendant

AND

CHARLES GRAHAM MILLER

Fourth Defendant

Hearing:

(On the papers)

Counsel:

S Grant and S Laing for the Plaintiff and Third Defendant T Stapleton QC for the First and Second Defendant

B Cuff and R Thompson for the Fourth Defendant

Judgment:

14 November 2019

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 14 November 2019 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

VAN GOCH v VAN GOCH & ORS [2019] NZHC 2978 [14 November 2019]

Introduction

[1]                  This matter concerns the estate of Maria van Goch (“Maria”). She died in September 2016. The plaintiff, Sandra van Goch (“Sandra”), the first defendant Johannes van Goch (“John”), and the second defendant Helen van Goch (“Helen”) are the three children of Maria, and the executors of her estate.1

[2]                  In the substantive proceeding, Sandra applied for orders under the Family Protection Act 1955, the Law Reform (Testamentary Promises) Act 1949, and the Wills Act 2007. These relate to her allegation that, at the time Maria signed her Will in 2012, she was in cognitive decline and physically impaired, such that the Will does not reflect Maria’s testamentary intentions. In reply, John and Helen allege Sandra brought these proceedings only after having refused to co-operate with her fellow executors and having made unreasonable demands of her siblings and the estate solicitor. The solicitor, Mr Charles Miller, is the fourth defendant. He, together with John and Sandra, oppose Sandra’s claim.

[3]                  The present judgment determines the question of costs on several interlocutory applications brought by the van Goch siblings, which I determined in my judgment of 6 September 2018.2

Background

[4]In summary, the applications were:

(a)John and Helen’s application to remove Sandra as an estate executrix on the basis that, in issuing the substantive proceeding, she placed herself in a disqualifying position of conflict of interest and/or that Sandra’s removal is justified by events since Maria’s death;

(b)Sandra’s application for an order removing Mr Miller as solicitor on two bases; first, that he will be a critical witness in Sandra’s proceeding

1      Sandra is also third defendant in the proceeding, in her capacity as executor.

2      Van Goch v Van Goch [2018] NZHC 2335.

and, secondly, that he ought to have ceased acting when the executors were in dispute and could not give him unanimous instructions;

(c)Sandra’s application for an order directing Mr Murray McKechnie, the barrister who represented the executors in the substantive proceeding, to cease acting for John and Helen…