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 DefendantsJudgment:
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…
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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