Estate of Gordon

[2025] NZHC 1100

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-624232

[2025] NZHC 1100

IN THE ESTATE

of CECILY JEAN GORDON

Deceased

Hearing:	On the papers
Counsel:	C R D Williams for Applicant P J O’Dea for Caveator
Judgment:	8 May 2025

JUDGMENT OF RADICH J

[1]    Cecily Jean Gordon died on 28 November 2023 leaving a final will dated     1 December 2022 (the Will). The Will named her son, Stephen John Pugh, as the sole executor and trustee. It left the entirety of the residue of her estate to her children.

[2]    The Will left nothing to Walter Tatily Gordon, the deceased’s previous partner. The two separated on 25 April 2023 but did not resolve relationship property issues before the deceased passed away. In particular, the former family home (which was owned by the deceased and Mr Gordon as tenants in common in equal shares) had not been sold. Mr Gordon formed the view that the Will was invalid because:

(a)the Will’s execution did not comply with the requirements set out in

Banks v Goodfellow1  because there was no discussion about the extent

1      Banks v Goodfellow (1870) LR5 QB 549, a case which established the legal test for testamentary capacity, which includes a requirement that the testator understood the extent of their property and was able to understand the claims of those who might reasonably expect to inherit or benefit from their estate.

ESTATE OF CECILY JEAN GORDON [2025] NZHC 1100 [8 May 2025]

of the deceased’s assets, of the claims that would be made on the assets, or of obligations owed in relation to the assets; and

(b)the Will’s execution did not give recognition to a contracting-out agreement, dated 15 October 1987, which is said to have directly affected the deceased’s ability to dispose of property.

[3]    In addition, Mr Gordon raised issues in correspondence with the estate’s solicitors, including over capacity and under the Property (Relationships) Act 1976, Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949.

[4]    Accordingly, Mr Gordon lodged a caveat against the grant of probate of the deceased’s estate on 13 December 2023.

[5]    On 25 June 2024, Mr Pugh filed these proceedings, applying for an order nisi for a grant of probate of the Will, under s 61 of the Administration Act. The order nisi was granted on 5 July 2024 and Mr Gordon was directed to appear on 5 August 2024 to show cause for why the order should not be made absolute.

[6]    On 30 July 2024, Mr Gordon filed a memorandum confirming his consent to the withdrawal of the caveat.

[7]    Mr Pugh, on behalf of the Estate, now seek costs. He seeks costs on a 2B basis and disbursements totalling $3,064,  said  to  have  been  incurred  as  a  result  of  Mr Gordon’s lodging of the caveat. His view is that he was the successful party, that there were no reasonable grounds for Mr Gordon to raise capacity issues that would justify taking the step of lodging a caveat preventing the grant of probate, and that other issues raised do not go to whether probate should be granted.

[8]Mr Gordon submits he was justified in lodging the caveat.

Discussion

[9]    Under the High Court Rules 2016, costs are ultimately at the discretion of the Court.2 Rule 14.2 prescribes a set of general principles to apply to the determination of costs. Included amongst them is the principle that the party who fails in a proceeding or interlocutory application should pay costs to the party who succeeds.

[10]   Mr Gordon’s challenge to the validity of the will does not appear to have been sustainable. A medical certificate relating to the deceased’s capacity was given to  Mr Gordon. In addition, powers of attorney, executed at the same time as the will included a statement from the certifying solicitor that they had no reason to suspect that Mrs Gordon was or may have been mentally incapable when she signed the document. The presumption of competence adds to the equation.

[11]   Moreover, no factual basis has been provided to support the further grounds advanced in Mr Gordon’s memorandum on costs of 12 September 2024.

[12]   I turn to issues raised under the Property (Relationships) Act 1976, the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. There is a fundamental difference between a caveat lodged in respect of an application for a grant of probate and either testamentary promises or family protection proceedings. The lodging of a caveat challenges the validity of the will, whereas testamentary promises or family protection proceedings assume that the will is valid but rely on a specific promise or promises made by the deceased to the applicants which should be enforced from the estate of the deceased or they rely on a breach of duty on the part of the deceased.

[13]   Mr Gordan’s withdrawal of the caveat indicates an acceptance on his part that there was no basis for lodging it. The estate has been put to expense in initiating these proceedings. The applicants have been the successful party and in the ordinary course of events are entitled to costs. The sum claimed by the applicants is reasonable. This conclusion reflects the outcomes in other similar cases.3

2      High Court Rules 2016, r 14.1.

3      Lewis v Vincent [2008] 1 NZLR 121 (HC) at [11]; and, more recently, Roberts v Jackson [2023] NZHC 3069, per Churchman J.

Conclusion

[14]   The applicant is awarded costs in these proceedings against Mr Gordon on a 2B basis in the sum of $2,390.

Radich J

Solicitors:

Patient & Williams, Christchurch for Applicant MDS Law, Christchurch for Caveator