Wardill v Anderson - [2017] NZHC 306

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 Party

JOHN 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…

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 Wardill v Anderson

Details

AGLC: Wardill v Anderson [2017] NZHC 306
Case: [2017] NZHC 306
Decision Date: 1 March 2017

CaseChat Overview and Summary

Ms Wardill and Mr Pasley sought to have an unsigned will declared valid under the Wills Act 2007. Mr Anderson supported the application, while Mr Rattray opposed it. In an earlier judgment, Palmer J found that the will was valid and that Ms Wardill and Mr Pasley should be the executors. The court was required to determine who should bear the costs of the application. The court identified that while it has the discretion to order costs to achieve justice between the parties, it must also take into account the general principle that costs follow the event. In addition, the court must consider whether the opposition to the will was made without proper inquiry into the facts or without reasonable ground, whether the testator caused the litigation, and whether the opponents of the will took proper steps to acquaint themselves of the facts and were led reasonably to believe that good ground existed for impeaching the will. The court found that the opposition was not unjustifiable or unreasonable, but that Mr Rattray's conduct in providing an alternative explanation of the deceased's testamentary intentions was unjustifiable or unreasonable. The court also found that the deceased's conduct was a substantial cause of the litigation.

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.

Orders