15 Aug 2023
The Court found on the facts that undue influence was not established and no legally binding secret trust was proved; probate remained valid and recall was dismissed, but the deceased breached his moral duty under the Family Protection Act and the plaintiff was entitled to an award from the estate of $55,000 (approximately 15% of the net estate).
5 Apr 2023
The strike-out application was dismissed because on an interlocutory strike-out the court must assume the facts pleaded are true, allegations of fraud raised by the defendant were matters for trial and not capable of being resolved on affidavit, and the statement of claim disclosed a reasonably arguable cause of action and was not an abuse of process.
29 Nov 2022
The Court ordered both the plaintiff and the second defendant to file affidavits stating their financial positions as at the date of the deceased's death because those positions are materially relevant to assessing whether there was a breach of moral duty; the broader categories of tailored discovery sought by the applicant were disproportionate at this stage and may be sought later if justified once affidavits provide a focused factual basis.
11 Mar 2022
Under r 4.56(1)(b)(ii) the court will order joinder where a proposed party has a genuine and direct interest that will be affected by the judgment and their presence is necessary to assist the court to adjudicate all matters, provided joinder does not cause undue prejudice or delay; applying that test, Connal should be joined because his entitlement is directly affected, there is no obvious prejudice, and justice requires he be heard.
3 Mar 2022
On the balance of probabilities the Court found Joan had testamentary capacity when executing both the 2015 and 2016 Wills; the evidence did not prove that those Wills were procured by undue influence of her daughter; the 2016 Will therefore stands and probate need not be recalled; plaintiffs' claim for breach of fiduciary duty by the executors was not made out though estate administration and file management were criticised as poor and contributed to the dispute.
30 Jul 2021
On the evidence the court found a de facto relationship existed historically but had ended by 12 September 2005 (contracting‑out with another caregiver) so PRA claims were out (and s24 extension denied); however claimant proved a sufficient nexus and promise under the Testamentary Promises Act based on long term services and repeated assurances and was awarded 65% of the estate as reasonable relief; medical and solicitor evidence established testamentary capacity for the 12 May 2016 will and no persuasive evidence of undue influence was proved so probate was not recalled and the 2016 will sta…
18 Sept 2019
The Court ordered distribution according to the 2006 will because the 2015 document could not be validated: the original was missing, the final page with witness signatures was absent so statutory witnessing requirements could not be demonstrated, there was no evidence who prepared the 2015 document or that it reflected the deceased's testamentary intentions, medical evidence indicated lack of testamentary capacity in November 2015, and the affected respondents did not apply to recall probate of the 2006 will.
12 Jul 2018
Probate was recalled because a later dated will was found and declared valid; the caveat lodged on behalf of the named beneficiary was ordered to lapse because, on the balance of probabilities, administration of the estate was not complete and the legatee did not yet have a caveatable equitable interest in the property prior to assent.
12 Apr 2018
The deceased lacked testamentary capacity when executing the 28 September 2015 will; the grant of probate dated 15 March 2017 is recalled. Costs are awarded to the plaintiffs on a 2B basis; half the costs payable by the Public Trust are to be paid out of the estate; half the costs attributable to the second defendant are to be paid out of the estate up to his response to the Calderbank offer, after which the additional costs necessary solely to satisfy him are to be borne personally by him.
4 Aug 2017
The strike out and summary judgment applications were dismissed because the pleadings together with affidavit material raised factual disputes about the existence of a fiduciary/constructive trust relationship, a possible breach and wilful blindness/dishonesty by the solicitors that are triable issues; summary disposal was inappropriate. However, on the balance of the security for costs factors the plaintiff likely cannot meet adverse costs and security of NZD 40,000 (two tranches of NZD 20,000) was ordered with costs of the security application to the second defendants on a 2B basis.