PARKES v PARKES [2015] NZHC 1289

PARKES v PARKES [2015] NZHC 1289

On balance the plaintiff's case was speculative and weak: contemporaneous medical observations (Dr Broom) and the solicitor's file notes evidenced sufficient testamentary capacity and no obvious undue influence; given the low apparent merit and the defendants' exposure to substantial costs, it was just to order...

Source-derived case information.

Citation
[2015] NZHC 1289
Parties
Plaintiff: Brent Maxwell Parkes; Defendant/executor: David Lawrence Parkes; Defendant/executor: Steven Gregory Parkes; Defendant/executor: Gary Wayne Thompson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 June 2015
Procedural Posture
Probate Will Challenge (declaratory Relief) / Interlocutory: Application for Security for Costs
Outcome
Security for costs ordered against the plaintiff
Legal Topics
Testamentary Capacity, Undue Influence, Security for Costs, Discovery, Interim Orders
Wills and Estates Probate Civil Procedure Costs Testamentary Capacity Undue Influence Security for Costs Discovery +1 more

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Parties

Brent Maxwell Parkes

Plaintiff

David Lawrence Parkes

Defendant/executor

Steven Gregory Parkes

Defendant/executor

Gary Wayne Thompson

Defendant/executor

Procedural Posture

Probate Will Challenge (declaratory Relief) / Interlocutory: Application for Security for Costs

Legal Issues

  1. 1 Whether security for costs should be ordered against an overseas plaintiff unable to pay
  2. 2 Whether the plaintiff's allegations of lack of testamentary capacity and undue influence have sufficient merit to justify relief from security for costs under probate principles

Ratio Decidendi

On balance the plaintiff's case was speculative and weak: contemporaneous medical observations (Dr Broom) and the solicitor's file notes evidenced sufficient testamentary capacity and no obvious undue influence; given the low apparent merit and the defendants' exposure to substantial costs, it was just to order security for costs of NZD 30,000 paid into Court in staged instalments to protect the trustees while allowing limited further interlocutory investigation.

Court Disposition

Security for costs ordered against the plaintiff

Orders

  • Security for costs fixed at NZD 30,000 to be paid into Court in three instalments: NZD 5,000 by 26 June 2015
  • NZD 5,000 within 10 working days of compliance by defendants or any non-party with the last interlocutory order made by the Court prior to the case being set down for hearing