Bisson v King - [2020] NZHC 2426

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2017-443-50

[2020] NZHC 2426

IN THE MATTER of the estate of ALAYNA WAIMANA CLARK

BETWEEN

ALLEN KENNETH BISSON, VINCENT GEORGE BROWN AND GEORGINA JOHANSEN

Plaintiffs

AND

MAUREEN DORIS KING, MATEHAERE ANITA EDWARDS AND JOHN DAVID

HANNING as Executors of ALAYNA WAIMANA CLARK

Defendants

Hearing: On the papers and on 27 August 2020

Counsel:

R T Wilson for Plaintiffs

L H Watson for Defendants

Judgment:

17 September 2020

JUDGMENT OF ELLIS J

[1] Alayna Clark died on 23 January 2015. She was survived by her husband Colin, but he died on 12 September 2015. Alayna and Colin had no children, and Alayna’s parents predeceased her.

[2]This judgment relates to problems arising from Alayna’s will.

Background

[3] While she was alive, Alayna’s property was held and managed on her behalf by a Kaitiaki Trust constituted under s 217 of the Ture Whenua Maori Act 1993 (the

BISSON & ORS v KING & ORS [2020] NZHC 2426 [17 September 2020]

Act). The purpose of a Kaitiaki Trust is to administer Māori freehold land and other assets of Māori persons under a disability, as Alayna was. At the time of her death, Ms Maureen King and Ms Matehaere Edwards were the trustees of the Trust. Ms King worked for many years as the Manager for IHC1 in Hawera and had looked after Alayna in her professional capacity for a long time.2

[4] At the time of Alayna’s death, the assets managed by her Kaitiaki Trust had a total value of approximately $1.25 million. They comprise:

(a)Beneficial interests in what are referred to as the “Watson/Brown blocks”:

(i)A beneficial interest in three lots of Māori land (Waitara West 30A2, Waitara West 41B & 158 Part and Matarikoriko 2B) that had been wholly owned by Alayna’s great great grandmother, Metepere Paraone. The plaintiffs, in their personal capacity, are all beneficial part owners of these blocks—as was Alayna.3 The combined value of Alayna’s interest in the blocks is approximately $400,000.

(ii)A (minor) beneficial interest in an urupā (Matarikoriko No 3A). This interest has limited commercial value but has cultural and spiritual value for members of the Watson/Brown whānau.

(b)A (relatively minor) beneficial interest in three other lots that were partially owned by Metepere Paraone (Ngatihaupoto 90B, Ngatirahiri 6C, and Waitara East 81B). The combined value of Alayna’s interest in these lots is approximately $36,000.

1      IHC New Zealand, an organisation that provides support and care for people of all ages with intellectual disabilities. It began as the Society for Intellectually Handicapped Children—hence the acronym.
2      Alayna’s will describes Ms King as Alayna’s friend.
3      There are currently 42 members of the Watson/Brown whānau, all descendants of Metepere Paraone, who comprise the beneficial owners of these three blocks of land.

(c)A property (218 Tukapa Street, New Plymouth) that is Māori freehold land and has a rateable value of $355,000.4

(d)Cash and investments.5

The making of Alayna’s will

[5] In 2012…

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 Bisson v King

Details

AGLC: Bisson v King [2020] NZHC 2426
Case: [2020] NZHC 2426
Decision Date: 17 September 2020

CaseChat Overview and Summary

This case concerned a dispute over the validity of a will and the interpretation of certain provisions within it. The plaintiffs, who were beneficiaries under the will, challenged the will on the basis of undue influence and other grounds. The defendants were the executors of the deceased's estate and the trustees of a trust established under the will. The High Court of New Zealand was tasked with determining the validity of the will and whether it should be amended in light of a proposed settlement agreement.

The key legal issues before the court were whether the settlement agreement represented a genuine compromise between the parties, and if the court should approve the amendments to the will as proposed in the settlement agreement. The amendments included changing a reference in the will, appointing new trustees for a trust established under the will, and approving a variation to the trust.

The court found that the settlement agreement represented a genuine compromise between the parties, as the plaintiffs' claims of undue influence were considered arguable. The court then went on to consider whether the amendments to the will should be approved. The court found that the reference to a particular section in the will was a clerical error and that substituting it with the correct reference would better reflect the deceased's intentions. The court also found that the substitution of new trustees for the trust was appropriate and that the variation to the trust, while financially detrimental to the beneficiaries, was ultimately not to their overall detriment when considering indirect and intangible benefits.

In light of these findings, the court made orders approving the terms of the settlement agreement and giving effect to the amendments to the will. The court appointed new trustees for the trust and approved the variation to the trust, subject to the conditions set out in the settlement agreement.

Orders