Judge reduces award by 20 percent due to rejected fraudulent calumny claim
The New Zealand High Court awarded costs of $37,030 to a testator’s half-brother, who was the most successful party in the estate proceedings, given that he obtained two investment properties based on his testamentary promises claim.
The case of Estate Of Ngan: Lowe v Ngan [2026] NZHC 1983 arose when a man passed away at the age of 94 without a partner or children on 2 May 2024. His half-siblings – Jeanne, Peter, Helen, Lorna, and Phillip – and their children survived him.
Valued at an estimated $3.45m, the estate primarily included the testator’s residential home and six flats bought as investment properties, totalling approximately $3m, plus his bank deposits and other non-real estate assets, amounting to approximately $450k.
In his final will made on 28 October 2021, the testator appointed Jeanne as his executor. The will left:
Jeanne, as temporary estate administrator, applied for the final will’s probate in solemn form.
Peter opposed the application based on two alternative claims:
Helen denied both claims.
On 11 March 2026, the High Court awarded Peter the two investment properties left to Helen’s children, resulting in Peter and Helen receiving broadly equivalent estate shares.
First, the court rejected the fraudulent calumny claim.
The court determined that Helen genuinely but incorrectly believed that Peter had defrauded the testator. The court noted that she kept pursuing Peter for the supposed fraud after the testator had already removed him from the will.
The court acknowledged that Helen based her incorrect belief on a cursory assessment of limited information, swiftly made judgments, and stuck to those judgments.
However, the court said the advice of the testator’s lawyer, Peter’s unconventional account management, and his decision to keep taking money prior to an accountant’s appointment somewhat supported her view.
Second, the court accepted Peter’s alternative testamentary promises claim.
As a reasonable remuneration for the value of Peter’s rental property management services and support over 16–17 years, the testator promised that his will would leave Peter a fair share of the properties and half of the net rent profits.
The court added that the testator would have fulfilled his promise of leaving Peter a fair share of his properties if not for Helen’s false representations.
First, the High Court of New Zealand ordered Helen to pay Peter $37,030 in costs on a 2B basis, reduced from $46,112 after a 20 percent reduction for the rejection of his fraudulent calumny claim.
Rather than holding the estate liable for Peter’s cost award, the court ruled that Helen should assume the burden of defending against his two claims.
The court noted that Helen’s fraud allegations led the testator to alter his will to exclude Peter and made the testamentary promises claim necessary.
Second, the court held that the estate should bear Jeanne’s reasonable executor costs. The court did not find Helen liable for these costs because she had some support in the advice of the testator’s lawyer and in Peter’s actions for her false representations.
Enjoy this story? Read the latest litigation and dispute resolution news on the main page!
