Taylor v Williams [2020] NZFC 3121

Published 07 September 2020

Testamentary promises — interlocutory application — interrogatories — application for discovery — costs — order for further particulars — District Court Rules, rr 8.34-8.40 — High Court Rules, r 8.40 — Family Court Rules, rr 48 & 139 — Williams v Taylor [2019] NZHC 658 — Commerce Commission v Qantas Airways Limited (No 2) [1992] 5 PRNZ 227 (HC) — Securitibank Ltd (in receivership and in liquidation) v Rutherford (No 25) HC Auckland A355/81, 10 October 1983 — Price Waterhouse v Fortex Group Limited CA179/98, 30 November 1998 (CA). This judgment relates to three interlocutory applications. The applicant bought a testamentary promise claim against the estate of the deceased that her child be nominated and validated as the sole beneficiary of the estate. The respondent was the son of the deceased's caregiver and had been named in the deceased's final will as the principal beneficiary. In a previous will the applicant's child had been named as the principal beneficiary. The interlocutory applications were: answers to interrogatories sought by the applicant; costs sought by the respondent against the applicant for a discovery application; and better particulars to be provided to the respondent relating to the applicant's claim. The applicant claimed that the deceased had promised her that her child would be a beneficiary of his will for services rendered to him during his lifetime, which the applicant claimed involved some household and carer tasks. The first application was sought by her and requested that the respondent answer questions relating to interrogatories, including the respondent's relationship with the deceased which resulted in him being the named beneficiary, and any potential conflict of interest which arose between the respondent, the respondent's mother, and the respondent's counsel. The respondent objected to answering as they did not relate to any matters in the proceeding. The Judge dismissed the first application on the basis that the answer to the interrogatories did not elicit any relevant material; sought to undermine the respondent's credibility (something which could be done during cross-examination); and that any relationship between the respondent or family and the respondent's counsel would not be relevant to the current claim. With regards to the costs application, the Judge granted this in favour of the respondent as it would not have been necessary for the respondent to apply for discovery had the applicant provided the information initially. In the third application, the respondent requested better particulars relating to the applicant's affidavit, in particular dates and times and frequency of the provision of the applicant's services to the deceased. The applicant opposed this on the basis that: it required her to unreasonably recall details of events over a decade-long period; she had already provided details; and the respondent knew the basis of the case to be met, and was attempting to adduce evidence prior to trial and effectively compel a witness statement. The Judge determined that the particulars sought by the respondent were reasonable and necessary to inform the scope of evidence he needed to obtain in relation to the deceased's estate, and that if the applicant could not recall some details she could simply say so. The Judge made an order accordingly that particulars were to be provided within 28 days, as well as any further affidavits. Judgment Date: 12 May 2020.