THE ESTATE OF PATRICIA ELIZABETH ELLEN FREDATOVICH [2018] NZHC 869

THE ESTATE OF PATRICIA ELIZABETH ELLEN FREDATOVICH [2018] NZHC 869 [30 April 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2017-485-612569[2018] NZHC 869UNDER THE Administration Act 1969IN THE MATTER of the Estate of Patricia Elizabeth EllenFredatovichBETWEEN NIGEL BRUCE CARPENTERApplicantHearing: 30 April 2018 (By way of telephone conference)Appearances: R Reeve for the ApplicantS McAnally for P S FredatovichJudgment: 30 April 2018JUDGMENT OF DUNNINGHAM J[1] These proceedings concern the will of Patricia Elizabeth Ellen Fredatovich (thetestator), who died on 15 June 2017. The testator made her last will on3 December 2013, but altered that will by codicil made on 26 April 2014.[2] The testator has three surviving children, John, Christine and Kathryn and oneson, Peter Michael Fredatovich (Peter), who predeceased her. Peter is the father ofPeter Steven Fredatovich (the caveator) who has lodged a caveat againstadministration of the estate of the testator.[3] Under the will made on 3 December 2013, the testator's residual estate was tobe divided four ways, with the share that Peter would otherwise have inherited goingto his three children, being the caveator, his sister Maria and his brother Anthony. Inaddition, the caveator's mother, Monique Fredatovich (Monique), was originallygifted the testator's car.[4] However, the codicil made on 26 April 2014 changed the will in two ways:(a) it removed the provision made for the children of the testator'sdeceased son, Peter; and(b) it removed the gift of the car to Monique.[5] The caveator is troubled by the fact that his grandmother changed her will onlyfour months after executing it and he is concerned that his aunt Kathryn was involvedin, and influenced, the testator's decision to make the codicil.[6] In short, there is allegation of undue influence which the caveator submitsrequires the application for probate of the testator's will be made in solemn form.The Administration Act[7] Section 61 of the Administration Act 1969 provides that where a caveat hasbeen lodged, the Court may, upon the application of the person applying foradministration, grant an order nisi for the grant of administration, which order shallname a time and place for "showing cause" against the grant of administration.[8] An order nisi was granted on 15 February 2018. By minute dated23 March 2018, I required any affidavit evidence in support of the caveator's claim tobe filed and served on the applicant by 19 April 2018. I directed that a hearing bytelephone conference was to be convened as soon as practicable thereafter. I recordedthat if no evidence had been filed, or no cause was shown, the order nisi would bemade absolute. Alternatively, I signalled that the application for administration wouldneed to be made in solemn form and directions would be made for service on affectedparties, in anticipation of a contested hearing.[9] In this case, I have received evidence from the caveator and from his mother,Monique which sets out the basis of their concerns about the codicil made on26 April 2014.[10] In summary, they outline that the testator had a close relationship with her sonPeter. The testator entrusted Peter with her power of attorney and cared for her afterher husband died in 2007. Peter's wife Monique says that the testator was devastatedwhen her son was diagnosed with cancer and died on 9 July 2012 and it wasunsurprising that she continued to include Peter's family in her will.[11] Furthermore, after her husband died in 2012, Monique, with the assistance ofher son, the caveator, continued to assume responsibility for aspects of the testator'scare that Peter had attended to before he died. Monique also took care of the testator'scar after Peter died, including ensuring it was serviced and obtained warrants offitness, and she had been told by her mother-in-law that she would inherit the car. Itseems surprising, therefore, that this intention changed so quickly.[12] The testator's other children did not live in such close proximity to their motherand therefore did not have the same responsibilities for her care as were taken on byPeter, before his death, and then Monique.[13] The testator's physical and mental health deteriorated in her last three and ahalf years of her life. The caveator and his family moved into the downstairs part ofthe testator's house in March 2014, but at the same time, the caveator's aunt Kathryn,made increasingly frequent visits to the testator. The evidence is that during this timethe testator became increasingly anxious about her financial position and reportedlysaid that she had been told, by Kathryn, that she did not have much money.[14] At about the time the codicil to the will was made, the testator's attitudetowards her daughter-in-law, Monique, changed, in a way which Monique and thecaveator say seemed "irrational", with her accusing her daughter-in-law of stealingfrom her. This culminated in Monique's removal as attorney and her replacement byKathryn.[15] In the circumstances, the caveator submits that the testator was susceptible toinfluence, whether or not she had reached the position of having testamentaryincapacity. The obvious effect to the codicil is to increase the respective shares of thetestator's three surviving children. The caveator says it is "remarkable" that in theevent that John, Christine or Kathryn happened to predecease the testator, that theirchildren would take their parents' share and yet, despite the closeness of the testator'srelationship with her son Peter, she would choose not to treat that side of the familyless favourably. The caveator submits that all these factors raise a question as towhether the codicil was the outcome of undue influence being exerted, such as wouldwarrant a full enquiry into that claim.Decision[16] I accept that the affidavits filed by the caveator constitute sufficient evidenceto show cause for the caveat in that there was:(a) an opportunity to exert undue influence upon the testator;(b) evidence to suggest that the testator was potentially susceptible to suchinfluence; and(c) changes were made to the will which are sufficiently unexpected tosuggest the possibility that the changes do not reflect the testator's ownwishes (although I note the estate's solicitor says they may beexplicable because of advances made to certain family members withinthe testator's lifetime).[17] For all these reasons, I am satisfied that a full enquiry into the facts surroundingthe making of the codicil is justified.[18] I note, too, that counsel advise that in the alternative, claims under the FamilyProtection Act are likely to be made. It seems logical that all such claims be dealt within the one proceeding, and will allow any such claim to be brought in the form of acounterclaim in the application for probate in solemn form.[19] The caveator seeks his costs and the Administration Act provides that if theCourt considers it just, those costs may be paid from the estate.1 However, given theearly stage of these proceedings, it seems to me more appropriate that costs arereserved, to be determined in light of the outcome of the proceedings. I note that boththe caveator and the solicitors for the estate have dealt with the matter practically andefficiently, in order to keep costs at this stage to a minimum.Orders[20] In the circumstances, I make the following orders:(a) The applicant is required to apply for probate in solemn form.(b) The application is to be served on all beneficiaries of the April 2013will, which includes the wife of the late Peter Michael Fredatovich andhis three children.(c) Any counterclaim, for example, under the Family Protection Act 1955,can be brought in the same proceeding and will be heard at the sametime.(d) The affidavits already filed in this proceeding by the caveator can beused in evidence in those subsequent proceedings.(e) Costs are reserved.Solicitors:Keegan Alexander, AucklandWilkinson Rodgers Lawyers, Dunedin1 Section 61(d).