In my judgment of 9 December 2014,[1] I resolved that the testator, Wallace, breached his moral duty to the five claimant grandchildren. I awarded the sum of $150,000 to each of them from an estate estimated to be worth in the order of $11.5M. I expressed the view that the claimants should receive their reasonable costs out of the estate. Nevertheless, I invited memoranda, if agreement could not be reached. Agreement was not reached and the successful claimants seek costs on an indemnity basis, namely:
(a)Legal costs of $285,238, plus GST to the end of the hearing;
(b)$79,000, plus GST for costs since the hearing;
(c)Court fees of $10,140; and
(d)Disbursements of $20,903.83, plus GST.
[1]Wightman v Public Trust [2014] NZHC 3124.
Mr Robert William Wightman (Robert William) was a party to the proceeding and, but for the distribution to the five claimant grandchildren (being his siblings and cousins), he stood to receive the entirety of the residual estate. Robert William vigorously opposed the plaintiffs’ claim. He now opposes an order for costs out of the estate, except on a standard 2B basis. He also opposes the payment of disbursements to a farm consultant employed by the applicants.

Context

The plaintiffs’ claim was novel. Five grandchildren sought and obtained a finding of breach of moral duty by their grandfather, Robert Wallace Wightman (Wallace) who passed away in 1965. A previous claim by their parents was largely unsuccessful. Wallace however left a large part of his estate to his daughter, Clara, to distribute to “any or all” of his 15 grandchildren. Clara died in 2011, leaving Wallace’s then residual estate to Robert William. A corollary of this is that the five claimant grandchildren received nothing directly from their grandfather’s estate. This is to be compared with the other remaining grandchildren, who received substantial sums from one or other of their grandparents.
The present proceedings were commenced in July 2012. Robert William registered his opposition, claiming among other things that the original decision made by the High Court debarred the present claim. This was rejected by Panckhurst J, who described as Robert William’s argument about the cause of action estoppel as “more ingenious than realistic”.[2] He awarded costs on a standard 2B basis at the request of the plaintiffs.
[2]Wightman v Public Trust [2013] NZHC 671 at [25].
The substantive proceedings were heard by me over the course of three days, including cross-examination of the claimants and Robert William.…

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 Wightman v Public Trust

Details

AGLC: Wightman v Public Trust [2015] NZHC 1091
Case: [2015] NZHC 1091
Decision Date: 20 May 2015

CaseChat Overview and Summary

In the case of Wightman v Public Trust, the five grandchildren of the late Robert Wallace Wightman sought a determination that their grandfather had breached his moral duty to them by not adequately providing for them in his will. They also sought an order for costs on an indemnity basis. The defendant, the Public Trust, was the executor of the estate, and Robert William Wightman, the son of Wallace and the sole beneficiary of the residual estate, opposed the claim for costs on an indemnity basis. The court had to determine whether the estate had been finally distributed, whether the grandchildren should be granted an extension of time to make a claim against the estate, whether there had been a breach of the testator's moral duty to the grandchildren, and if relief was granted, what the nature of that relief should be.

The court found in favor of the grandchildren on all issues. However, in assessing the costs, the court found that while the longstanding practice of awarding costs out of the estate on a solicitor-client basis was relevant, whether such an award should be made in any given case would depend on the circumstances of the estate, the effect of an award on beneficiaries, and the conduct of the litigation. The court found that an increased or indemnity costs award was not appropriate in this case given the circumstances. The court ordered that the grandchildren were entitled to their costs on a 3C basis, including in relation to the preliminary hearing on jurisdiction.

The court also found that the plaintiffs were entitled to disbursements of $10,000 plus GST together with Court fees, which shall be paid out of the estate. The court did not expect there would be any issues as to the final quantum of the disbursements. Costs on the application for costs were to lie where they fell.

Orders