Winterburn v Wilson - [2016] NZHC 2687

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000767 [2016] NZHC 2687

IN THE MATTER OF ESTATE OF DAWN UNA RICHARDS

BETWEEN

JEROME RANGI WINTERBURN AND NGAIRE PEARL ARCUS

Plaintiffs

AND

DAVID JAMES WILSON Defendant

Hearing: (Dealt with on the papers)

Counsel:

J M Stringer for Plaintiffs
D R Weatherley for Defendant

Judgment:

9 November 2016

JUDGMENT OF GENDALL J (As to Costs)

WINTERBURN v WILSON [2016] NZHC 2687 [9 November 2016]

[1] In a judgment I issued in this proceeding on 28 June 2016 I made an order under s 14(2) of the Wills Act 2007 declaring file notes and a will instruction sheet completed by the deceased Dawn Una Richards (the deceased) in August 2014 to be her valid will. The effect of this was that the bulk of the deceased’s estate was effectively left equally to her sons, the first named plaintiff, Jerome Winterburn, and his brother, Raymond Winterburn.

[2] These file notes and will instruction sheet (completed shortly before the deceased died on 22 August 2014) had the effect of revoking her previous will signed on 3 October 2003 by which the defendant Mr Wilson, who was the de facto partner of the deceased, was to receive all of her estate.

[3] At paras [50] and following of my 28 June 2016 judgment, I noted that the plaintiffs sought an award of costs here. The defendant too indicated a wish to be heard on that question. I therefore reserved costs and indicated that, if counsel were unable to agree on this issue between themselves, they could file memoranda. These memoranda were then to be referred to me and, in the absence of either party indicating they wished to be heard personally on the question of costs, I would decide that question based on all the material before the Court.

[4] Counsel have now advised that they have been unable to agree on the issue of costs. Accordingly, counsel for the plaintiffs has filed an initial memorandum on costs dated 21 September 2016. Counsel for the defendant in turn has filed submissions dated 3 October 2016 and counsel for the plaintiffs has filed brief submissions in reply dated 25 October 2016. No party has indicated they wished to be heard personally on the issue.

[5] I have now had an opportunity to consider all those submissions and give my decision on the costs question.

[6] In this case, the plaintiffs seek an order for costs against the defendant. Alternatively, if this fails, they seek an order that the defendant should bear his own costs with respect to the proceeding. The defendant’s position in response is threefold. First, he says that, on the basis that his opposition to the plaintiffs’

application was entirely reasonable, in these circumstances his costs should be met from the deceased estate. Secondly and alternatively, he says he should not be liable for the plaintiffs’ costs at all. And thirdly and last, he argues that if this Court disagrees and finds that the…

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 Winterburn v Wilson

Details

AGLC: Winterburn v Wilson [2016] NZHC 2687
Case: [2016] NZHC 2687
Decision Date: 9 November 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Winterburn v Wilson dealt with a dispute regarding the validity of the will of the deceased, Dawn Una Richards. The plaintiffs, Jerome Winterburn and Ngaire Pearl Arclus, sought to validate a will instruction sheet completed by the deceased in August 2014, which they argued should be considered her valid will, effectively leaving the estate equally between Jerome and his brother, Raymond Winterburn. This opposed the previous will signed in 2003, which left everything to the defendant, David James Wilson, the deceased's de facto partner. The legal issues before the court involved the proper application of the principles governing the costs of proceedings in testamentary disputes and whether the defendant's costs should be met from the deceased's estate or borne by the defendant himself.

The court considered the principles governing costs in testamentary disputes, as outlined in various legal texts and precedents. These principles emphasise the importance of balancing the interests of ensuring that doubtful wills do not pass easily due to the cost of opposing them and preventing parties from being tempted into fruitless litigation with the knowledge that the costs will be defrayed by the estate of the testator. The court also highlighted the High Court's discretion to award costs to achieve justice between the parties, noting that while costs may be ordered to be paid out of the estate, this is not always the case and should not be departed from solely on the basis that the proceedings involve a deceased's estate.

In deciding the matter, the court found that the defendant's opposition to the plaintiffs' application was properly brought and bona fide, and that he should not be liable for the plaintiffs' costs. While the deceased could not be blamed for the failure to have her affairs in order given her untimely death, the application did arise from the fact that her affairs were not fully in order. The court concluded that justice between the parties was best served by ordering that costs should lie where they fall.

The final orders of the court were that costs should lie where they fall, with no order for costs made in the estate other than recognising that the costs of counsel for the plaintiffs and those of her firm are properly charged to the estate on an indemnity basis.

Orders