Wilkinson v Wilkinson

[2017] NZHC 667

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-485-612522 [2017] NZHC 667

UNDER

the Wills Act 2007 and the Administration

Act 1969

IN THE MATTER

of the ESTATE OF WILLIAM LOUIS WILKINSON of Cambridge, Company Director, deceased

DAVID WILLIAM WILKINSON of Cambridge, Company Director and JOHN DUNCAN LANDERS of Cambridge, Chargered Accountant

Applicants

BETWEEN

ANN WILKINSON Caveator

AND

DAVID WILLIAM WILKINSON AND JOHN DUNCAN LANDERS Respondents

Hearing:	On the papers
Counsel:	R D Clark for Applicants/Respondents M J Matthew for Caveator A R Gilchrist for interested party, Patricia Wilkinson
Judgment:	7 April 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 7 April 2017 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Lewis’, Cambridge

Rennie Cox, Auckland

Kiely Thompson Caisley, Auckland

WILKINSON v WILKINSON [2017] NZHC 667 [7 April 2017]

[1]      I have before me an application for costs by the applicants for an order nisi for probate, where a caveat was lodged against the initial application for probate.

[2]      The immediate background is, as set out in memorandum of counsel for the applicants, that Mr William Louis Wilkinson died on 28 August 2015.  He signed a will on 6 October 2014 and, on 9 April 2015, he signed a codicil to his will.   In September 2015, an application for probate was filed with the Court and this was then  followed  soon  after  by  a  caveat  lodged  on  behalf  of  Ann  Wilkinson,  the caveator.  On 29 September 2015, the Deputy Registrar of the High Court, by way of letter, advised the solicitors acting for the estate that a caveat had been lodged.  An application for order nisi was then lodged on 10 March 2016.

[3]      On 16 March 2016, Faire J then issued a minute ordering that the application be treated as an on notice application with a hearing date for 9.00 am on 19 April

2016.  Affidavits in support needed to be served on Ms Wilkinson, being a person named as one of the executors and trustees of the deceased’s will.  On 12 April 2016, counsel for Ms Wilkinson confirmed that she did not propose to take any steps to oppose the application and would abide by the decision of the Court.

[4]      On 18 April 2016, Faire J then issued a minute granting the order nisi with a time and place for showing cause against same fixed, on 17 May 2016 at the High Court in Auckland.  It appears that the memorandum of counsel for the caveator had been filed on 16 May 2016 and on 17 May Faire J acknowledged receipt of the memorandum, but noted no affidavit had been filed by the caveator and no evidence had been advanced by the caveator.

[5]      The Court was therefore satisfied that an order absolute should be made and costs were reserved.

[6]      The applicants submit, in short, that costs should follow the event on a 2B

basis, together with travel expenses and associated costs.

[7]      The  application  for  costs  is  opposed  on  the  basis,  in  short,  that  the attendances were excessive and office disbursements, mileage and parking cannot be claimed without these expenses being substantiated.

[8]      It is noted that part of the attendances would have been required in any event in relation to the codicil, which required a minor correction.

[9]      There is also an application by Ms Patricia Wilkinson but this is opposed on the basis that she had no standing to appear.

Assessment

[10]     The applicants being successful, they are entitled to costs on a 2B basis.  I have examined the schedule of costs claimed and I am satisfied that they are appropriately made in terms of the schedule.   I agree that there should be some reduction  for  attendances  that  were  required  in  any  event  for  correction  to  the codicil.    However,  I  perceive  this  to  be  only  a  minor  aspect  of  the  overall requirement for attendances.

[11]     Accordingly, I make an order in terms of the costs claimed, less 10 per cent. I also do not allow for mileage and parking costs in terms of the disbursement.

[12]     I do not grant costs for Ms Patricia Wilkinson.  She is not a named party.