Wilson v Donnellan

[2014] NZHC 1609

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2099 [2014] NZHC 1609

IN THE ESTATE OF

Phillip John Joseph Donnellan

BETWEEN

ROBIN ALEXANDRA WILSON Plaintiff

AND

DARREN RONALD DONNELLAN First Defendant

EMILY ROSE ZAJKOWSKI Second Defendant

SATINA SKYE ZAJKOWSKI Third Defendant

Hearing:	7 July 2014
Counsel:	J P Griffith and R M B Collins for plaintiff G W D Manktelow for second and third defendants
Judgment:	9 July 2014

JUDGMENT OF CLIFFORD J

[1]      The  second  and  third  defendants,  Emily  and  Satina  Zajkowski,  are  the daughters of Phillip John Joseph Donnellan, who died by his own hand on 20 June

2012.  Phillip Donnellan left a written will dated 20 May 1994 appointing the first defendant, his brother  Darren Donnellan, administrator of his estate.  In that will, he left his estate entirely to his two daughters.

[2]      Phillip  Donnellan  left  a  suicide  note,  and  a  recorded  message,  made  on

20 June 2012.  He called the note his last will and testament and stated that he left all his “stuff” to Robin Wilson, his partner. The recorded message was also described as his last will and testament and, again, indicated his intention that all his property

should go to his partner, Robin Wilson.

WILSON v DONNELLAN [2014] NZHC 1609 [9 July 2014]

[3]      Probate  was  originally  applied  for  by  Darren  Donnellan.    The  plaintiff, Ms Wilson, lodged a caveat, and subsequently applied for an order under s 14 of the Wills Act 2007 declaring Phillip Donnellan’s handwritten suicide note and recording to be his will.

[4]      That application was granted as recorded in a minute of Collins J of 6 May

2013.

[5]      Emily and Satina Zajkowski had originally opposed that application.  They did so, raising a concern about their father’s testamentary capacity.   Once Court- ordered toxicology and post-mortem reports were received, they withdrew that opposition.   They applied for costs, to be paid out of their father’s estate.   That application was made on the basis that there were questions of capacity that needed to be determined, and that it was not improper for them to take part in the litigation as interested parties to have the circumstances surrounding their father’s death, and the making of the informal will, examined.

[6]      Ms Wilson opposes the application.  She notes that the High Court decision granting her application was made on 6 May 2013. At that time, the estate of Phillip Donnellan was ordered to pay her costs, and those of the first defendant.   The question of costs for the second and third defendants was reserved.  That matter had not been raised for over a year.  Further, she says that the suicide note and recorded message were clear and obvious statements of testamentary intention.  There was not a reasonable basis to oppose her application.   She noted that Emily and Satina Zajkowski had never provided any evidence on which they based their concerns as to their father’s testamentary capacity.

[7]      The general principle is that costs follow the event.  On that basis, Emily and Satina  Zajkowski,  having  been  unsuccessful  in  their  opposition  to  Ms Wilson’s application, and in fact having withdrawn that opposition, would be left to bear their own costs.  But the position in probate matters can be different.  The principles were

summarised by Giles J in Fraser v Chalmers as follows:1

1      Fraser v Chalmers (1997) 11 PRNZ 348 at 350–351.

As always, the Court has a complete discretion on the issue of costs.  There are occasions in matters probate where the costs, even of an unsuccessful party, can be directed to be borne by the estate itself.  The leading authority is Re Paterson (dec’d) [1924] NZLR 441, 442-443 where the principles are enunciated in the following terms:

(i)        If the litigation originates in the fault of the testator — eg by the state in which he left his testamentary writings, or by his eccentric or irrational habits and mode of life — or of those interested in the residue, the costs may properly be paid out of the estate.

(ii)      If there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent.

(iii)      Unless the circumstances of the case are such as to bring it within one of the foregoing exceptions, the general rule that costs should follow the event ought to prevail.

[8]      Here, the need for Ms Wilson’s application arose from the state in which Phillip Donnellan had left his affairs: a handwritten suicide note, and an accompanying recorded message.  Moreover, given the circumstances of his death, the question of his testamentary capacity at that time was, almost unavoidably, an issue to be confronted.

[9]      In these circumstances, I consider it appropriate that an award of costs in favour of Emily and Satina Zajkowski be made out of their father’s estate.  I agree, however, that the delay in bringing this claim counts against them.   Whilst there appear to have been a number of changes of legal representation, it would have been in everyone’s interests for this matter to have been resolved quite some time ago.  In my view, and applying r 14.7(g) of the High Court Rules, that justifies a reduction in the amount of costs claimed.

[10]     Mr Manktelow adjusted  the quantum claim at  the hearing in response to submissions for Ms Wilson.   On that basis, the total claimed was $15,821.05.   In these circumstances, my assessment is that an award of costs of $10,000 against the estate  of  Phillip  Donnellan  in  favour  of  Emily  and  Satina  Zajkowski  is  the appropriate amount, and I so order.

[11]     Again, given the delays in bringing this application, although Mr Manktelow has succeeded, in my view the costs of this application should lie where they fall.

“Clifford J”

Solicitors:

Rainey Collins, Wellington for plaintiff

Cook Morris Quinn, Auckland for first defendant

Guy Manktelow, Lower Hutt for second and third defendants