Blackie v Perpetual Trust Ltd as Trustee HC Christchurch CP21/01

[2002] NZHC 92

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY CP21/01

UNDER The Law Reform (Testamentary Promises) Act 1949

IN THE MATTER OF the estate of FLORENCE JEAN BLACKIE of Christchurch

BETWEEN WALTER ALLAN BLACKIE
Plaintiff

AND PERPETUAL TRUST LTD AS TRUSTEE AND EXECUTOR OF THE ESTATE OF FLORENCE JEAN BLACKIE
Defendant

AND IAN DONALD BLACKIE AND THOMAS GOURLEY BLACKIE REPRESENTING GORDON ROSS BLACKIE AND OTHERS
Beneficiarie

Hearing: 17 December 2001

Appearances: D A Wood and B Nevell for the Plaintiff
A R J Bowers for the Defendant (leave to withdraw granted)
E M S Cox for the Beneficiaries

Judgment: 18 February 2002

RESERVED JUDGMENT OF WILLIAM YOUNG J

Solicitors:
D A Wood, Timaru for Plaintiff
Gibson Sheat, Lower Hutt for Beneficiaries
Lane Neave, Christchurch for Defendant

Introduction

[1] This testamentary promises claim relates to the estate of the late Florence Jean Blackie (“Jean”) who died on 16 August 2000.

[2] Jean never married and had no children. She had two brothers, the plaintiff Mr Walter Allan Blackie (“Allan”) and Mr Thomas Gourley Blackie (“Tom”).

[3] The claim is opposed by the residuary beneficiaries (who will be mentioned shortly). Counsel for the defendant executor sought and was granted leave to withdraw.

The will

[4] Jean left an estate of $206,000. The principal asset was her house at 12 Bradshaw Terrace, Riccarton, Christchurch. The agreed value of the house is $170,000. She had inherited this house from her mother.

[5] Jean’s will was made in 1990.

[6] The defendant, Perpetual Trust Ltd is the executor. Allan was also named as an executor but has not assumed office given this present dispute.

[7] By her will, Jean, made a series of gifts of personal items (including a number of coins) to members of her extended family. As part of this series of gifts, Jean left a gold sovereign to Allan. She left $2,000 to The Otago Early Settlers Association Inc. She provided that any motor cars owned by her as at her death and her investments with Protected Securities Ltd were to go to Allan. She directed that the residue of her estate be held as to half for Ian Donald Blackie (Ian) with the balance to be divided equally between the other six nephews and her one niece. Allan is Ian’s father. Sadly, they are not on good terms.

[8] In 1990 (when the will was made) Jean owned a Volkswagon motor vehicle and also had some money (but how much was not established by admissible evidence) invested with Protected Securities Ltd. Protected Securities Ltd went into liquidation in 1991 and her investment in that company was lost. Further, in 1996, Allan purchased Jean’s Volkswagon car for $6,000 and she never acquired another car. So all the plaintiff received under the will is one gold sovereign (worth about $62).

Family dynamics in the Blackie family

[9] Tom was born in 1926, Jean in 1928 and Allan in 1930.

[10] Relationships in the Blackie family, at least in recent years, have not been particularly close and have become further strained as a result of this litigation and associated disputes relating to Jean’s estate. A symptom of this disharmony has been some unfortunate and unsatisfactory correspondence written by Allan to Tom in which Allan made inappropriate threats associated with the alleged removal of chattels from Jean’s house. These threats were associated with the stance which Tom was then taking in these proceedings. I see these threats as being of no particular moment in terms of how this case should be resolved. I also see the underlying personal difficulties between the parties as being of no more than contextual significance.

[11] The case really turns on events which took place in the last 15 years or so of Jean’s life, that is between the mid 1980s and when she died (in 2000).

[12] During the late 1980s and throughout the 1990s Jean was living in Christchurch. She had had a career as a civil engineering draughts-woman and retired, I infer, sometime in the 1980s. By the mid 1980s her health was not perfect. She had difficulty with her eyesight. Later she developed Parkinson’s Disease (which seems to have been diagnosed in or around 1992).

[13] Allan’s wife died in or about 1986. He has never remarried. In or about 1991 or 1992, he went to live in Wanaka.

[14] During the last 15 years or so of Jean’s life she was very close to Allan and there was a great deal of contact between them. The only other member of her extended family with whom she was particularly close was Allan’s son Ian.

The Law Reform (Testamentary Promises) Act

[15] This claim is brought under the Law Reform (Testamentary Promises) Act.
Allan relies on s 3 which, relevantly, provides:-

“(1) Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may be reasonable, having regard to all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate, whether as creditors, beneficiaries, wife, husband, children, next-of-kin, or otherwise.

(2) This section shall apply-

(a) Whether the services were rendered or the work was performed before or after the making of the promise:

(b) Notwithstanding anything to the contrary in section 4 of the Statute of Frauds 1677, or section 2 of the Contracts Enforcement Act 1956, or any other enactment.

(3) Where the promise relates to any real or personal property which forms part of the estate of the deceased on his death, the Court may in its discretion, instead of awarding to the claimant a reasonable sum as aforesaid,-

(a) Make an order vesting the property in the claimant or directing any person to transfer or assign the property to him; or

(b) Make an order vesting any part of the property in the claimant or directing any person to transfer or assign any part of the property to him, and awarding to the claimant such amount (if any) as in its opinion is reasonable in the circumstances.”

What assistance did Allan give to Jean?

[16] Allan, in his evidence, focused largely on what occurred between the mid-80s and 2000. Allan’s position is that in the mid 1980s his mother asked him to take care of Jean and in response to this request he promised to do so. He claims that from this time on he did a good deal for Jean.

[17] I will set out what Allan said he did largely using his own language:-

“5. I was living in Wanaka but spent a lot of time and money transporting and helping Jean to attend various activities and events and assisting around the house. The list of things I did for Jean is too long to detail here but I can give oral evidence of everything I did for her, both before and after her death to help her. Amongst other things I:

a. Organised and paid for her 70th birthday party. (Total cost approx. $2000.00).

b. Transported her to a netball reunion in Greymouth, and paid for her attendance, hotel etc.

c. Transported her to a West Coasters reunion, at the Riccarton Club Christchurch and paid for her attendance ($150.00).

d. Painted her house, and paid for the paint.

e. Purchased and fitted hand rails in shower and balustrade for the steps, smoke alarms and security lights in her house. (Approx.$180.00).

f. Paid for two new batteries for her electric scooter. ($485.00).

g. Paid fares to, and accommodation in, Wellington to see the Edinburgh Tattoo. ($900.00).

h. Paid for trips, and transported Jean from Christchurch to Dunedin for her to see an eye specialist (also paying the specialist’s costs).

i. Paid for her accommodation, attendance at, and travel to Dunedin for a Mooltan anniversary. ($540.00)

j. Purchased a clothes dryer for her.

k. Lent her a Cameo brooch which was subsequently lost (approx. $430.00).

l. Paid for various trips from Christchurch to Wanaka for her to stay with me. (Around 2-3 trips each year)

m. Assisted her with her finances, helping her with the payment of bills, her banking and her clothing.

6. OVER the past 10-12 years I would have made approximately eight trips per year from Wanaka to Christchurch and back to assist Jean in one way or another.”

Allan also provided Jean with the mobility scooter which is referred to in the list of services, a private pager and a mobile phone.

[18] The position advanced by the beneficiaries at trial was that:-

1. Much of the assistance was provided in the period between 1995-1996 and 2000.

2. Some of this assistance related to social events in which Allan had an interest as well or involved trips which had other purposes for Allan (eg enabling him to call in on a business in which he was involved in Waimate).

3. As well, much of the assistance was given essentially because Jean was his sister and because of the promise made by him to their mother and were not really associated with the testamentary promises which were allegedly made. Allan obviously got on pretty well with Jean and, no doubt, enjoyed her company (particularly after his wife died).

4. The house painting exercise was not as significant as might be supposed given that the house was brick.

5. The total cost in monetary terms to Allan of his assistance was said to have been in the order of $6,000 -$6,500 or perhaps a little more.

[19] Allan’s evidence as to the services he provided was supported (albeit it at a reasonably general level) by a number of witnesses who were called for the plaintiff. For instance, Miss Hazel Hight said that on occasions when Jean needed assistance she (that is Miss Hight) would telephone Allan. She did not telephone anyone else. Miss Hight can be regarded as being primarily a friend of Jean. There was also support from Mr George William Scurr (who is a friend primarily of Allan but was also a friend of Jean) and at a very general level from two friends of Jean, Marise McKenzie and Neil Brailsford.

[20] I recognise that intra-family assistance will often be fairly seen as being of only limited significance in claims of this sort, cf Re Welch [1990] 3 NZLR 1. As well, I accept that caution is required when assessing claims as to the extent to which services have been provided given the potential for exaggeration. That said, I broadly accept Allan’s contentions as to what he did, supported as they are by the evidence of his corroborative witnesses. Indeed, my impression is that there could be no real challenge to the broad thrust of what he said, albeit that there was undoubtedly scope for debate as to some of the details. Further, I think, it is clear enough that the services he provided went significantly beyond what would normally be expected by a sister of her brother.

Were there testamentary promises?

[21] Allan’s evidence as to the testamentary promises upon which he relies was as follows. He says that in or about October 1995, at a time when he was providing a good deal of assistance in relation to a visit Jean made to a Dr Rod Keillor, an eye specialist, in Dunedin, Jean stayed with him in Wanaka. He referred to what happened on the last day of her visit:-

“[W]hen it came time for her to go home, the morning that I was to put her on the bus, she said ‘for everything you have done for me you will be well rewarded because you will share the house”.”

Allan then went on to say:-

“On one occasion, later but I can’t remember exactly when, Jean mentioned that Ian would be the other person to share in the house.

Jean made this promise, or at least implied it to me, three or four times over the next five years. The last time she mentioned it was when I had painted the foundation, the wrought iron balustrade handrails and the gates at her house, this was in October 1998. Quite often she would come out and tell me to take a break, she would say things like ‘you are working so hard, but don’t worry you will be fully rewarded’. I can’t remember the exact words but I can certainly recall the essence of what she was saying”

[22] His evidence was supported, at least to some extent, by Miss Hazel Hight, as I have mentioned, was a friend of Jean. Her evidence was that she understood from what Jean had told her that Allan was to receive a half interest in the house. The value of this evidence, however, is limited. She understood that the other half of the house was destined for Tom. Further, she believed that the property was to be left to Allan and Tom because Jean had inherited the house from their mother. As well, the discussions to which she referred would appear to have antedated what Allan says were the testamentary promises she made to him.

[23] There was, however, some other evidence which corroborated, in a general sense, what Allan had to say to me in a more helpful way. Mr George Scurr, and Mr Neil Brailsford all referred to remarks made by Jean which were indicative of gratitude on her part for what Allan had done for her. The evidence of Mr Scurr and Mrs McKenzie also referred to comments made by Jean which could be regarded as being at least consistent with an intention to make testamentary provision for Allan.

[24] It is usually difficult for beneficiaries to contradict evidence of this sort relating as it does to promises allegedly made by a person who is dead. There was, however, in this case some limited challenge to Allan’s evidence in the form of an affidavit from Tom in which he said:-

“While Jean and I were not particularly close, Betty [who is Tom’s wife] and I used to visit Jean from time to time when we were up in Christchurch usually three to four times a year. Perhaps two or three years ago during such a visit, I asked her if her will was up to date. Her reply to me was:

‘Yes, but you and Allan need not expect anything as you are both doing alright”.

I remember her comment clearly. It was said in the straightforward way that was typical of her.

It seemed to be common knowledge amongst the family that Jean’s nephew, Ian, the plaintiff’s son, was always going to be the main beneficiary of Jean’s will. Jean chose to have nothing to do with some of her nephews and nieces but she was very fond of Ian. Ian had lived with her for 18 months or more during his apprenticeship in Christchurch, and spent many of his St. Andrew College term holidays with Jean, their relationship remained strong, on the whole, after that. Jean had visited Ian and his wife in America. It was certainly no surprise to me that the bulk of the estate had been left to Ian as he seemed to be far and away the closest to her.

Jean had inherited her house from our mother. Each of Allan and I had received approximately $11,000.00 from our mother as our share and there was no expectation on my part to receive anything further through Jean.”

[25] I have no particular difficulty with the evidence which Tom has given. It is fair to say, however, that Tom might have had more occasion to remember what was said in relation to him than as to Allan. In any event, it is perfectly possible that Jean said one thing to Allan and another to Tom. So I do not see Tom’s affidavit as being necessarily inconsistent with what Allan said in evidence.

[26] Obviously, there is a need for caution in finding that there has been a testamentary promise; this given the difficulty in rebutting an allegation that there has been a promise made by a person who is now dead. As well, the inconsistency between the testamentary dispositions, as made, and the promise, as alleged, necessarily raises a question mark as to whether the promise, as alleged, was actually made. That said, however, I broadly accept the plaintiff’s evidence:-

1. He is a relatively straightforward, if perhaps rather angular, man and struck me as someone who was telling the truth.

2. There is a context which has been proved in which it might be thought to be likely that testamentary promises as alleged were made; a good deal of assistance was provided by Allan to Jean, Jean was given to expressing gratitude or appreciation of the assistance which was given and Jean’s primary family associations were with Ian and Allan.

3. It is perfectly clear that, in 1990, Jean did intend to make testamentary provision for Allan albeit that there is dispute and doubt as to the extent of what was intended given the exiguous evidence as to the value of the investment with Protected Securities Ltd as at that date. It is certainly possible that Jean was aware, throughout the 1990s, of the fact that she had made testamentary provision for Allan in her will but had forgotten the precise details.

[27] I also accept that the promises were broadly referable to the assistance which was provided and were thus within s 3 of the Act albeit that they coincided with what might have been thought to be a reasonable exercise of testamentary discretion given the family relationship.

Other competing moral claims

[28] Jean’s principal involvement with her nephews and nieces was with Ian. He use to stay with her during holidays when he was at school. Later, when he was an adult and living in the United States, Jean went and stayed with him on two occasions for 4 weeks in 1994 and for 6 weeks in 1997.

[29] He does not claim to have been made any testamentary promises.

[30] There appear to be no other moral claims to which I must have regard.

Quantum

[31] This is a relatively straightforward case. Allan says that he was promised a share of the house. He also says that Jean told him that Ian would be the other person to share in the house. This could be treated as a promise to leave him a half share in the house and it has been, understandably, so construed by Allan. I am, however, reluctant to construe the remarks in that light given that what is involved is so much a matter of nuance associated with discussions which took place a number of years ago and I have, of necessity, only heard from one of the participants.

[32] Even if the promise is treated as extending to a half share in the house, it would only permit and, would not require, an award of a half share, see the discussion as to this in Re Welch. This is important because, in this case, there were other reasons why Jean might be expected to leave an interest in the house to Allan: the fact that the house had been inherited from her mother and her generally good relationship with Allan as a whole. So if there was a promise to leave a half interest in the house to Allan, that promise should not necessarily be regarded as being entirely referable to the services and support provided by Allan to Jean.

[33] For the purposes of assessing quantum, I propose to treat the case as involving a promise by Jean of substantial testamentary disposition associated with the provision to her of significant services by Allan. I do not think that the value of these services or the quantum of the award is fairly assessed by calculating the costs to Allan of providing those services. There are time and inconvenience factors as well. Further, it is unrealistic to imagine that all services which Allan provided to Jean have been listed. On the other hand, I recognise that Allan enjoyed Jean’s company and no doubt derived pleasure from their joint activities. There obviously was a significant family component to what took place.

[34] What is called for is a value judgement. I have had regard to the nature of the promise which was of a share in the house (and by implication not of a negligible share) and the significant assistance which I am satisfied that Allan provided.

[35] In those circumstances, I award Allan $45,000, this is to be borne by the residuary estate.

Disposition

[36] I fix the quantum of the award at $45,000. This award is to carry interest as if it were a legacy. I reserve all issues as to costs. If there is any application as to costs it should be made by memorandum within 14 days and responded to by memorandum within a further 14 days.