Dodssuweit v Olivier [2019] NZHC 2707

Dodssuweit v Olivier [2019] NZHC 2707

Litigation did not originate in fault of the testator so plaintiffs' costs were not payable from the estate or trust; however plaintiffs had reasonable grounds to challenge capacity and undue influence given hospital admission and secrecy, so second defendant was awarded costs against plaintiffs but reduced by 70% to reflect the context; first and third defendants awarded costs against plaintiffs but reduced by 40% for conduct and context; no uplift for the Calderbank/without prejudice save as to costs offer was ordered.

Citation
[2019] NZHC 2707
Parties
Plaintiff: Cornelia Dodssuweit; Plaintiff: Stephan Dodssuweit; First Defendant and Executor: Kevin Norman Olivier; Second Defendant: Bettina Dodssuweit; Third Defendant: KM Dod Trustees Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 October 2019
Procedural Posture
Contested Will and Inter Vivos Transactions / Costs Judgment (post Trial)
Outcome
Costs awarded to defendants with significant reductions: second defendant awarded reduced costs and disbursements of $23,291.58; first and third defendants each awarded $8,495.90; plaintiffs not permitted to recover their costs from estate or trust
Legal Topics
Testamentary Capacity, Undue Influence, Costs Recovery From Estate or Trust Funds, Calderbank/without Prejudice Save as to Costs Offers, Inter Vivos Transactions
Wills and Estates Trusts Civil Procedure Costs Testamentary Capacity Undue Influence Costs Recovery From Estate or Trust Funds Calderbank/without Prejudice Save as to Costs Offers +1 more

Case Brief

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Parties

Cornelia Dodssuweit

Plaintiff

Stephan Dodssuweit

Plaintiff

Kevin Norman Olivier

First Defendant and Executor

Bettina Dodssuweit

Second Defendant

KM Dod Trustees Limited

Third Defendant

Procedural Posture

Contested Will and Inter Vivos Transactions / Costs Judgment (post Trial)

Legal Issues

  1. 1 Whether plaintiffs' legal costs should be met from the deceased's estate or trust funds
  2. 2 Whether the litigation originated in the fault of the testator for the purposes of Re Paterson
  3. 3 Whether plaintiffs had reasonable grounds to challenge testamentary capacity and allege undue influence

Ratio Decidendi

Litigation did not originate in fault of the testator so plaintiffs' costs were not payable from the estate or trust; however plaintiffs had reasonable grounds to challenge capacity and undue influence given hospital admission and secrecy, so second defendant was awarded costs against plaintiffs but reduced by 70% to reflect the context; first and third defendants awarded costs against plaintiffs but reduced by 40% for conduct and context; no uplift for the Calderbank/without prejudice save as to costs offer was ordered.

Court Disposition

Costs awarded to defendants with significant reductions: second defendant awarded reduced costs and disbursements of $23,291.58; first and third defendants each awarded $8,495.90; plaintiffs not permitted to recover their costs from estate or trust

Orders

  • The plaintiffs are to pay the second defendant $23,291.58 (reduced costs and disbursements)
  • The plaintiffs are to pay each of the first and third defendants $8,495.90 (reduced residual costs)