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,…

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 Wilson v Donnellan

Details

AGLC: Wilson v Donnellan [2014] NZHC 1609
Case: [2014] NZHC 1609
Decision Date: 9 July 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Wilson v Donnellan was heard. The plaintiff, Robin Alexandra Wilson, sought a declaration that Phillip John Joseph Donnellan's suicide note and recorded message constituted his will. Phillip Donnellan had died by suicide on 20 June 2012, leaving a handwritten suicide note and a recorded message that he referred to as his last will and testament. In these, he stated his intention to leave all his property to Robin Wilson, his partner. The first defendant, Darren Ronald Donnellan, was appointed as the administrator of Phillip Donnellan's estate in Phillip’s earlier will. The second and third defendants, Emily Rose Zajkowski and Satina Skye Zajkowski, are Phillip’s daughters. They opposed the plaintiff’s application for a declaration that Phillip’s suicide note and recorded message constituted his will, arguing that their father lacked testamentary capacity at the time he made these documents. After receiving toxicology and post-mortem reports, the daughters withdrew their opposition and applied for costs, to be paid out of their father’s estate.

The legal issues before the court were whether the suicide note and recorded message constituted Phillip Donnellan’s will, and if the daughters were entitled to costs from the estate. The court noted that the principles governing costs in probate matters differ from other cases, where costs generally follow the event. In probate cases, if the litigation arises from the testator's state of affairs or there is reasonable ground to question the will's execution or the testator's capacity, the losing party may be relieved from the costs of their successful opponent. The court applied these principles and considered the circumstances surrounding Phillip Donnellan’s death and the need for Robin Wilson’s application due to the state of Phillip’s affairs. The court concluded that it was appropriate for the daughters’ costs to be borne by the estate but reduced the amount due to the delay in bringing the claim.

The court ordered that $10,000 in costs be paid from Phillip Donnellan’s estate to Emily and Satina Zajkowski. The court acknowledged the daughters' solicitor's efforts in adjusting the quantum of the costs claim in response to submissions but considered the delay in bringing the application warranted a reduction. The costs of the application itself were to lie where they fell.

Orders