Williams v Taylor

[2019] NZHC 658

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-612456

[2019] NZHC 658

IN THE ESTATE

of WALTER JOSEPH HOWARD of

Auckland, retired, deceased

BETWEEN

VERNON DAVID OWEN WILLIAMS

Applicant

AND

DEBORAH GRACE TAYLOR

Caveator

Hearing:	2 April 2019
Counsel:	P F Chambers for Applicant Caveator in person
Judgment:	2 April 2019

[REDACTED] ORAL JUDGMENT OF WHATA J

Solicitors:           Henley-Smith Law, Glen Eden

WILLIAMS v TAYLOR [2019] NZHC 658 [2 April 2019]

[1]    This is an application for an order nisi to be made absolute where a caveat has been lodged. The caveator, Deborah Taylor, does not dispute the existence of the Will or its validity, save in one respect that I will note below. However, she claims that the testator, Walter Howard, made a testamentary promise to her that her daughter, [redacted], would be the sole beneficiary of his estate when the testator passed away. She refers to “handwritten cards” she says were penned by Mr Howard that affirmed the support and assistance she gave him over a nine-year period. such support and assistance she says well exceeds the normal level of support that would ordinarily be provided by a friend, family or neighbour.

[2]    The types of works and services allegedly performed include: homecare, shopping, medical assistance, advocacy, health and safety, companionship and emotional support, crisis intervention and property security. She further attests that she was not a member of his family and was not viewed as a member of his family and that she did not personally benefit in any mutual way because of her completing the above services.

[3]    Ms Taylor also claimed at the hearing that there may be an issue of testamentary capacity, but she could not point to evidence to support this. I put that claim therefore to one side.

[4]    The applicant for probate in common form, Vernon Williams, filed a document, dated 1 May 2018, which he says is the Will of Mr Walter Joseph Howard. The Will suffers from no obvious defect. An order nisi was made on 21 February 2019, directing that unless the caveator shows cause, probate will be granted to Mr Williams. Mr William’s counsel, Mr Chambers, submits that the caveator has not shown just cause why the order nisi ought not to be made absolute. He says the application and affidavit in the Family Court fall far from the threshold for a testamentary promises claim. He submits the services provided are limited and are of not such a calibre that would trigger an anticipation of an implied or express promise, let alone the basis for a claim against the estate. He also submits there is no supporting evidence from other witnesses as to the promises made and none of the documents cited identify the requirements for a promise to be identified and supported by the Court. He refers to an application by Ms Taylor to the Family Court and requests that the Family Court

application be transferred to this jurisdiction and dealt with at the hearing for order nisi absolute.

Assessment

[5]    Probate in common form is concerned about the proof of the existence of a valid Will. Grounds for challenging a probate in common form are well-known. They include: 1

(a)Where there is doubt as to whether the papers submitted for probate are testamentary or not;

(b)Where there is doubt as to the due execution of such papers;

(c)Where there is doubt as to the insertion or deletion of any important matters in it;

(d)Where there is any doubt as to the capacity of the testator to make a valid Will; and

(e)Where the Court suspects that, at the time the testator executed the Will, the testator was subject to some undue influence or fraud.

[6]    While this is not an exhaustive list, each of the matters listed go to the validity of the Will, rather than the merits of any distribution under or pursuant to the Will. Where a caveat is lodged, and there is an arguable ground for invalidity, then the Court may, among other things, direct that the Will be proved in solemn form.2

[7]    Separate statutory mechanisms are available to any person seeking to challenge distribution, including to enforce a testamentary promise under the Law Reform (Testamentary Promises) Act 1949. The grant of probate in common form does nothing to undermine claims of this kind, which can be heard in the ordinary way, in this case, in the Family Court, unless it is transferred to this Court.

1      See Laws of New Zealand, Administrations of Estates Vol 1 at [75].

2      Administration Act 1969, s 61(d)(ii); Re Nissenbaum [1939] NZLR 94.

[8]    For this reason, given there is no challenge to the validity of the Will, the caveat cannot be sustained and must be set aside. Mr Chambers wishes, however, to go one step further. He wants the testamentary claim resolved as part of these proceedings. That is misconceived. A probate in common form proceeding does not contemplate the final resolution of substantive distribution claims.3

[9]    In these circumstances, I discharge the caveat on the basis that the claim to which it seeks to protect may be heard in different proceedings and there being no challenge to the validity of the Will per se, and probate may thus be granted and the order nisi made absolute. I reject, however, the applicant’s application for transfer of the proceeding.

[10]   There shall also be costs for this appearance in favour the executor on a 2B basis. While the caveat served a useful purpose in notifying the executor of an adverse claim, it should have been withdrawn prior to the hearing.

3      Nissenbaum, above n 2.