New Zealand Case Law: Decisions & Judgments

Topic

Will validity

Legal area

Court

1 Sept 2023

RE: MYLONAS [2023] NZHC 2449

Citation

[2023] NZHC 2449
Court

High Court

The court declared the written will instructions to be a valid will because admissible affidavits from the applicant and the deceased's sister established the deceased's intention regarding the ambiguous one‑third residuary provision (that it was for funeral costs and should be divided equally), and that factual clarification rendered the will sufficiently certain to be admitted to probate; application of s28 was noted but unnecessary to alter the practical outcome.
13 Jun 2023

PUBLIC TRUST v BUCKNELL [2023] NZHC 1465

Citation

[2023] NZHC 1465
Court

High Court

On the balance of probabilities the Court accepted the expert assessment that Mrs Balch likely lacked the requisite testamentary capacity when she executed the 24 February 2016 will, rendering that will invalid; therefore the 18 January 2005 will is the last valid will and probate in solemn form is granted for that 2005 will.
3 Nov 2022

Re Parker [2022] NZHC 2878

Citation

[2022] NZHC 2878
Court

High Court

Given the likelihood of contested issues and the need to preserve estate assets pending resolution, the applicant (sister) was a suitable and non‑self‑interested person to be appointed temporary administrator under s 7(1) Administration Act 1969; interlocutory service directions were appropriate and a prospective costs order was justified to have the applicant's costs paid from the estate and to protect her personally from having to pay other parties' costs, but not to order that any costs she might be ordered to pay to contesting parties be charged to the estate.
23 Dec 2021

PUBLIC TRUST v COUTTS [2021] NZHC 3620

Citation

[2021] NZHC 3620
Court

High Court

Given the specialist diagnosis of moderate dementia in April 2016, consistent contemporaneous clinical records and the unchallenged retrospective expert opinion that the testator lacked capacity in 2017, the Court was not satisfied on the balance of probabilities that the testator had testamentary capacity when executing the 2017 will; by contrast there was no clinical evidence of cognitive impairment in 2008 and the 2008 will was rational on its face so probate of the 2008 will was granted.
15 Sept 2021

EASTGATE v WALKER-PRENTICE [2021] NZHC 2438

Citation

[2021] NZHC 2438
Court

High Court

Litigation privilege was upheld: the applicant, as independent executor, was entitled to retain privilege over his litigation file and legal advice because the dominant purpose was preparation for litigation, the parties' positions and interests were not sufficiently aligned to engage the joint interest exception, and no waiver or applicable exception required disclosure; accordingly the respondent's challenge to privilege was dismissed.
7 Sept 2020

ROGERS v KENNEDY & ORS [2020] NZHC 2317

Citation

[2020] NZHC 2317
Court

High Court

Indemnity/increased costs refused because there was no obvious, incontrovertible lack of merit and no judicial finding of forgery could be made without a full trial; expert fees of Linda Morrell were approved as reasonable and necessarily incurred disbursements; claimed 2B scale costs were upheld as reasonable given the categorisation and absence of compelling grounds to depart. Plaintiff ordered to pay costs and disbursements accordingly.
20 Dec 2019

JOHN PHILLIP MANLEY AND SUSAN JOAN CHURCH v JOHN PHILIP MANLEY & ORS [2019] NZHC 3477

Citation

[2019] NZHC 3477
Court

High Court

Given contemporaneous medical evidence indicating cognitive decline and dementia, and the inability to establish capacity for the May 2017 Will, combined with beneficiary consent and minimal differences between the Wills, the Court declared the May 2017 Will invalid and granted probate of the April 2007 Will.
26 Jun 2019

NZ GUARDIAN TRUST CO LTD v MORRIS [2019] NZHC 1469

Citation

[2019] NZHC 1469
Court

High Court

On the balance of probabilities the deceased did not have testamentary capacity on 17 August 2016 due to established moderate cognitive impairment compounded by acute delirium during hospital admission; therefore the later will is invalid and probate of the earlier will dated 23 July 2001 is to be granted in solemn form with the New Zealand Guardian Trust Company Limited appointed executor and trustee.
12 Jul 2018

KATARINA TAKIORA KELSEY v MICHAEL JOHN TANIORA [2018] NZHC 1727

Citation

[2018] NZHC 1727
Court

High Court

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.
13 Oct 2017

JACKSON v JACKSON [2017] NZHC 2506

Citation

[2017] NZHC 2506
Court

High Court

The court accepted there was credible evidence the plaintiff could not meet an adverse costs order from his own resources and that the only available indemnity was speculative and unenforceable; balancing the parties' positions and the arguability of the claim, it was just to order security but not for the full claimed quantum, and the appropriate security was fixed at $25,000 to be provided within 15 working days, failing which the proceeding would be stayed.