IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2015-404-003017
[2017] NZHC 306
IN THE MATTER of an application pursuant to section 14 of the Wills Act 2007 AND
IN THE MATTER
of the estate of Sandy Maureen Anderson, Deceased
BETWEEN
PATRICIA DIANE WARDILL AND DAVID ROBERT PASLEY
Applicants
CHRISTOPHER GRANT ANDERSON
Interested PartyJOHN RATTRAY
Interested Party
Hearing: On the Papers Counsel:
J H Hunter for Applicants
D A Campbell and D R Duffield for C G Anderson J M Skinner for J Rattray
Judgment:
1 March 2017
JUDGMENT NO 2 OF PALMER J
(Costs)
This judgment is delivered by me on 1 March 2017 at 2.00 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors & Counsel:
J H Hunter, Barrister, Auckland Wardill Pasley Law, Auckland
WARDILL & PASLEY [2017] NZHC 306 [1 March 2017]
Kensington Swan, Auckland Skinners Law, Auckland
Applications
[1] Ms Wardill and Mr Pasley applied for a final version of an unsigned will to be declared valid under s 14 of the Wills Act 2007. They then abided the decision of the court. Mr Anderson supported the application. Mr Rattray opposed it. In my judgment of 16 December 2016 I declared the will valid.1 Ms Wardill and Mr Pasley became the executors of the estate. Mr Anderson and Mr Rattray are equal beneficiaries under the will.
[2]In the last paragraph of the judgment I stated:2
I am inclined to agree with the request from Ms Wardill and Mr Pasley that costs be met from the estate. If that cannot be agreed between the parties I grant leave for submissions to be filed within 20 working days of this judgment.
[3] Counsel for Ms Wardill and Mr Pasley, and for Mr Anderson, filed a joint memorandum, and two supporting affidavits, regarding costs on 3 February 2017, when the 20 working day deadline expired. Counsel for Mr Rattray filed a memorandum in response on 21 February 2017, a day after counsel for Mr Anderson invited me to determine the matter.
Law
[4] Davidson J in Harris v Taylor has recently addressed the question of costs in s 14 cases:3
[16] The authors of Law of Costs identify three general rules to strike the appropriate balance between ensuring that "doubtful wills should not pass easily to proof by reason of the cost of opposing them" but also ensuring that parties will "not be tempted into fruitless litigation by the knowledge that the costs will be defrayed by the estate of the testator".4 These are:5
1 Wardill & Anor v Anderson & Anor [2016] NZHC 3114.
2 At [53].
3 Harris v Taylor [2016] NZHC 483. Relied upon by Gendall J in Winterburn v Wilson [2016] NZHC 2687 at [7].
4 G E Dal Pont Law of Costs (3rd ed, Lexis Nexis, Australia, 2013) at [10.17] citing Mitchell v Gard
(1863) 3 Sw & Tr 275 at 279; 164 ER 1280 at 1282.
5 At [10.17] (footnotes…
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- Wardill v Anderson [2017] NZHC 306
- Case
- [2017] NZHC 306
- Decision Date
CaseChat Overview and Summary
The court ordered that the costs of Ms Wardill and Mr Pasley, totalling $21,826, should be met from the estate on an indemnity basis because they were acting responsibly in making the application which was necessary because of the testator's conduct. The court further ordered that the costs of Mr Anderson, totalling $85,416.13, should be met from the estate on an indemnity basis because he was entitled to support the application. The court did not order Mr Anderson's costs to be met by Mr Rattray because Mr Rattray was entitled to oppose the application. Finally, the court ordered that the costs of Mr Rattray, totalling $26,357, should lie where they fell because of his conduct in providing an alternative explanation of the deceased's testamentary intentions that he contradicted under cross-examination.
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Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Legal Principle Established
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