Wong v Lim-Yip - [2022] NZHC 523

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000514

[2022] NZHC 523

UNDER the Administration Act 1969

IN THE MATTER OF

The estate of Shue-Wah Lim

BETWEEN

SUEY YIP WONG, STEVEN YIP LIM and SELINA YIP LIM

Applicants

AND

MING LIM-YIP and HONG LIM-YIP

Respondents

Hearing: On the papers

Counsel:

AC Sorrell and KH Morrison for Applicants VTM Bruton QC and PA Brown for Respondents

Judgment:

22 March 2022

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Tuesday, 22 March 2022 at 10 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Meredith Connell, Auckland. VTM Bruton QC, Auckland. PA Brown, Auckland.

WONG v LIM-YIP [2022] NZHC 523 [22 March 2022]

Discontinuance at trial

[1] Shue-Wah Lim died 20 February 2019. She made wills 10 July 2012 and 20 May 2015. These divided her eight adult children. Suey, Selina and Steven, whom I call the applicants, advanced the 2012 will. Hong and Ming, whom I call the respondents, advanced the 2015 will. The remaining children—Mary, Susanne and Sumy—supported the respondents.

[2] The applicants argued Mrs Lim lacked testamentary capacity when she made the 2015 will. They also argued Ming and Susanne procured that will through undue influence. On day five of the trial—and while Suey was being cross-examined—the applicants discontinued their claim and acknowledged the 2015 will should have probate. This left only costs, which I address here.

The two wills

[3] The 2012 will was prepared by Fui Loong Chan, Mrs Lim’s longstanding lawyer. Mrs Lim changed lawyers late 2013. She then saw Christine Ding. The 2015 will was ultimately prepared by a third independent lawyer, Stella Chan, albeit based on earlier input from Ms Ding. All three spoke Cantonese. Mrs Lim spoke little English and could not read English.

[4] Despite the litigation, the two wills are not greatly different. Ming and Steven are the executors under the 2012 will; Ming and Hong the executors under the 2015 will. Both wills give the residue of the estate to Ming, Hong and Steven in equal shares. Both make little provision for the daughters on the assumption they had been provided for during Mrs Lim’s lifetime.1 Both forgive Ming’s indebtedness to the estate; the 2015 will goes further by forgiving Ming’s trust-related indebtedness too. The 2012 will is silent on the appointment and removal of trustees in relation to a family trust. By virtue of the family trust’s deed, these powers vested in the administrators of the estate. The 2015 will deals with this expressly; Ming and Hong have the power to appoint and remove trustees.

1 Aside from forgiveness of Selina’s indebtedness.

[5] The one significant difference between the wills is this: the 2012 will forgives Selina’s indebtedness to Mrs Lim of $500,000; the 2015 will does not.

Principle

[6] The case involves an intersection of costs principles. The first is that costs are at the discretion of the Court.2 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 Wong v Lim-Yip

Details

AGLC: Wong v Lim-Yip [2022] NZHC 523
Case: [2022] NZHC 523
Decision Date: 22 March 2022

CaseChat Overview and Summary

In the case of Wong v Lim-Yip, the applicants, Suey, Steven, and Selina, sought to challenge the 2015 will of their mother, Shue-Wah Lim, on the grounds that she lacked testamentary capacity when she made it and that it was procured by undue influence by Ming and Susanne. The respondents, Ming and Hong, argued in favour of the 2015 will. On the fifth day of the trial, while Suey was being cross-examined, the applicants discontinued their claim, acknowledging that the 2015 will should be granted probate. Downs J addressed the issue of costs in the proceedings.

The legal issues the court had to decide involved the principles of costs in the context of contested wills and the reasonableness of the applicants' claims. The court had to determine whether the applicants' claims of lack of testamentary capacity and undue influence were reasonable and if the respondents' costs should be met by the estate. The court also had to consider the applicants' behaviour in rejecting a settlement offer and whether this warranted increased costs.

Downs J considered that the applicants' claims were not reasonable, as there was no new factual evidence to support the contention of testamentary incapacity, and the respondents had answers to the contentions. The court also found that the respondents' settlement offer was a sensible compromise, given the size of the estate and the likely cost of a High Court trial. The applicants' unreasonable behaviour in rejecting the settlement offer and proceeding to trial warranted increased costs. Downs J ordered that the estate bears the respondents' costs and disbursements, as well as the reasonable costs of Ms Ding and Ms Chan in relation to the preparation of their affidavits and Fui Loong Chan's expenses. The applicants bear their own costs.

In conclusion, the court found that the applicants' claims were not reasonable, and their behaviour in rejecting the settlement offer and proceeding to trial was unreasonable. The court ordered that the estate bears the respondents' costs and disbursements, as well as the reasonable costs of Ms Ding and Ms Chan in relation to the preparation of their affidavits and Fui Loong Chan's expenses. The applicants bear their own costs.

Orders