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Balchin v Hall

Balchin v Hall

Case [2016] NZHC 837 29 April 2016

Testamentary Intentions

Validation of Wills

Equity of Redemption

Contingent Interests

Rule in Saunders v Vautier

Wills & Succession

Equity & Trusts

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000901 [2016] NZHC 837

UNDER
the Administration Act 1969, the Wills Act

2007, the Trustee Act 1956 and Part 18 of the High Court Rules

BETWEEN

NATHAN LEE BALCHIN AND DAVID FINAU BALCHIN

Plaintiffs

AND

ALISTAIRE ALEXANDER HALL AND MURRAY JOHN BALCHIN

Defendants

Hearing: 4 February 2016

Appearances:

A G Rowe for Plaintiffs
P A Craighead for Defendants

Judgment:

29 April 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 29 April 2016 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

BALCHIN v HALL & OR [2016] NZHC 837 [29 April 2016]

Introduction

[1] When Ronald Balchin died in 2013 he left a valid will executed in 2007 under which his two adult sons Nathan and David Balchin (the plaintiffs) would share equally in his estate, which is worth approximately $100,000. He also left a document signed in 2008 that purported to be a will under which the plaintiffs would not receive their gifts unless and until they reached the age of 50. The 2008 document does not satisfy the requirements for a valid will.

[2] Alistaire Hall (Mr Balchin’s solicitor) and Murray Balchin (Mr Balchin’s brother), who were named as executors in the 2008 document, did not realise that it was not properly executed as a will. As a result, probate in common form was inadvertently obtained in respect of it.

[3] The plaintiffs wish to have the estate distributed to them immediately, as the

2007 will provides. In this proceeding they have sought, first, to have probate of the

2008 document revoked. This has been achieved, with an order made by consent.1

That leaves for determination:

(a) The defendants’ counterclaim seeking an order validating the 2008 will under s 14 of the Wills Act 2007;

(b)If the 2008 document is validated, the plaintiffs’ application to vary the trusts created by it through orders under either s 64A of the Trustee Act 1956 or the rule in Saunders v Vautier to permit immediate distribution of the estate;

(c) If the 2008 document is not validated, the plaintiffs’ claim for

compensation for the delay in implementing the 2007 will.

[4] This decision deals only with the first of these questions, whether the 2008 document should be validated under s 14.2 The plaintiffs oppose the making of an

1 Minute of Associate Judge Sargisson, 9 November 2015.
2 It is planned that there will be a further hearing to determine the issues that arise consequent on this decision.

order on the ground that to do so would be pointless because if the document is validated they will apply, and can expect to obtain, an order under either s 64A of the Trustee Act 1956 or under the rule in Saunders v Vautier. Validating the 2008 document would simply impose an unnecessary expense on them.

Validation of the 2008 document

Relevant principles

[5] Under the Wills Act a valid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Balchin v Hall

Details

AGLC: Balchin v Hall [2016] NZHC 837
Case: [2016] NZHC 837
Decision Date: 29 April 2016

CaseChat Overview and Summary

Balchin v Hall is a case involving the interpretation and application of the Wills Act 2007, the Trustee Act 1956, and the High Court Rules in relation to the estate of Ronald Balchin, who died in 2013. Ronald Balchin left a valid 2007 will and a 2008 document that failed to meet the formal requirements for a valid will. The plaintiffs, his sons Nathan and David Balchin, seek to have the estate distributed according to the 2007 will, while the defendants, Alistaire Hall (the deceased’s solicitor) and Murray Balchin (the deceased’s brother), seek to have the 2008 document validated. The primary legal issue is whether the court should exercise its discretion under section 14 of the Wills Act 2007 to validate the 2008 document.

The court considered the principles underlying the validation power and the circumstances in which Ronald Balchin created the 2008 document. The court noted that the primary purpose of the validation power is to ensure that a deceased’s genuine intentions are upheld, and it should be exercised in accordance with the rules of reason and justice. The court concluded that if satisfied that the 2008 document expresses Ronald Balchin’s testamentary intentions, it should validate the document as a will, as doing so would uphold his intentions. The court also considered the plaintiffs’ arguments against validation, including the potential for unnecessary expense and litigation if the document is validated. However, the court determined that these considerations were not sufficient to exercise the discretion against validation. The court held that declining to validate the 2008 document would usurp the discretion to be exercised under section 64A of the Trustee Act 1956, and any order made under section 64A would not necessarily reflect the 2007 will.

The court found that the 2008 document did indeed reflect Ronald Balchin’s genuine intentions, and thus validated the document as a will. The court reserved costs. This decision sets the stage for further proceedings to determine how the estate should be distributed in light of the validated 2008 document.

Orders