ESTATE OF N MCCABE HC WHA CIV-2011-488-663

ESTATE OF N MCCABE HC WHA CIV-2011-488-663

Caveator had reasonable basis to raise concerns about undue influence but framed an unnecessarily broad challenge; executors were not entitled to indemnity or proved uplift because evidence did not establish extra time by allegation and further particularisation was lacking; on balance the Court exercised discretion to order the caveator to pay a contribution equal to 2B costs of $10,904 and refused increased or indemnity costs.

Citation
openlaw-8d70aa2a_4a54_4b87_b284_495038f364d5.pdf
Parties
Deceased: Nancy McCabe; Executor: Irene Misiepo; Executor: Robert McCabe; Caveator: Bruce McCabe
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 July 2012
Procedural Posture
Probate (will Contest) / Costs Judgment
Outcome
Caveator ordered to pay a contribution to the executors' costs of $10,904.00; claims for increased costs and indemnity costs denied.
Legal Topics
Caveat, Undue Influence, Order Nisi, Increased Costs, Indemnity Costs, High Court Rules R14.6
Probate Estate Law Civil Procedure Costs Caveat Undue Influence Order Nisi Increased Costs +2 more

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Parties

Nancy McCabe

Deceased

Irene Misiepo

Executor

Robert McCabe

Executor

Bruce McCabe

Caveator

Procedural Posture

Probate (will Contest) / Costs Judgment

Legal Issues

  1. 1 Whether the caveator had reasonable grounds to oppose the grant of probate
  2. 2 Whether the caveator unnecessarily broadened allegations and thereby caused extra costs
  3. 3 Whether increased costs or indemnity costs should be awarded under High Court Rules r14.6

Ratio Decidendi

Caveator had reasonable basis to raise concerns about undue influence but framed an unnecessarily broad challenge; executors were not entitled to indemnity or proved uplift because evidence did not establish extra time by allegation and further particularisation was lacking; on balance the Court exercised discretion to order the caveator to pay a contribution equal to 2B costs of $10,904 and refused increased or indemnity costs.

Court Disposition

Caveator ordered to pay a contribution to the executors' costs of $10,904.00; claims for increased costs and indemnity costs denied.

Orders

  • The caveator, Bruce McCabe, is to pay to the executors a contribution to their costs of $10,904.00.
  • No order for increased costs or indemnity costs is made in favour of the executors.