MATHER v MORTLOCK [2013] NZHC 1930

MATHER v MORTLOCK [2013] NZHC 1930

Because the substantive testamentary dispute was effectively resolved by agreement that would likely have been reached absent contentious litigation, and the proceeding functioned as the mechanism to obtain consent orders, the court exercised its discretion not to apply the primary principle that costs follow the event. The plaintiff and the second defendants are each entitled to costs on a 2B basis to be paid from the estate (with specified certified items), the executors retain their entitlement to indemnity from the estate and are not ordered to pay costs personally, and the reasonable costs and disbursements of counsel for the grandchildren are to be paid from the estate on a...

Citation
[2013] NZHC 1930
Parties
Plaintiff Residuary Beneficiary: Nicholas John Mather; First Defendants Administrators/executors of the Estate: James Paul Lyon Mortlock; Paul Lyon Mortlock; Denisian Johnston (as Administrators of the Estate of Jennifer Mary Mather); Second Defendant Residuary Beneficiary: Simon Barry Mather; Second Defendant Residuary Beneficiary: Bridget Desiree Mather
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 August 2013
Procedural Posture
Probate Testamentary Capacity Challenge / Costs Determination Following Consent Orders
Outcome
Costs awarded to parties on limited 2B scale and from the estate; executors' indemnity preserved; grandchildren's counsel costs payable from the estate on solicitor and client basis
Legal Topics
Testamentary Capacity, Grant of Probate, Costs Allocation, Family Arrangement
Probate Succession Civil Procedure Costs Testamentary Capacity Grant of Probate Costs Allocation Family Arrangement

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Parties

Nicholas John Mather

Plaintiff Residuary Beneficiary

James Paul Lyon Mortlock; Paul Lyon Mortlock; Denisian Johnston (as Administrators of the Estate of Jennifer Mary Mather)

First Defendants Administrators/executors of the Estate

Simon Barry Mather

Second Defendant Residuary Beneficiary

Bridget Desiree Mather

Second Defendant Residuary Beneficiary

Procedural Posture

Probate Testamentary Capacity Challenge / Costs Determination Following Consent Orders

Legal Issues

  1. 1 Whether the 2007 will should be recalled for lack of testamentary capacity
  2. 2 Whether costs should follow the event where parties settled by consent
  3. 3 Whether executors are entitled to be indemnified from the estate for litigation costs

Ratio Decidendi

Because the substantive testamentary dispute was effectively resolved by agreement that would likely have been reached absent contentious litigation, and the proceeding functioned as the mechanism to obtain consent orders, the court exercised its discretion not to apply the primary principle that costs follow the event. The plaintiff and the second defendants are each entitled to costs on a 2B basis to be paid from the estate (with specified certified items), the executors retain their entitlement to indemnity from the estate and are not ordered to pay costs personally, and the reasonable costs and disbursements of counsel for the grandchildren are to be paid from the estate on a...

Court Disposition

Costs awarded to parties on limited 2B scale and from the estate; executors' indemnity preserved; grandchildren's counsel costs payable from the estate on solicitor and client basis

Orders

  • The plaintiff and the second defendants respectively are to have their costs on a 2B basis for the certified Schedule 3 items and their disbursements, the quantum to be fixed by the Registrar if not agreed, to be paid out of the estate of Jennifer Mary Mather
  • The reasonable costs and disbursements of counsel for the grandchildren on a solicitor and client basis are to be paid to him from the estate of Jennifer Mary Mather, with leave reserved to have the Court fix those costs and disbursements if there is any dispute