Bristow v Smith - [2013] NZHC 2866

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-000054 [2013] NZHC 2866

BETWEEN TIMOTHY JAMES BRISTOW Applicant

ANDSTEPHEN JOSEPH SMITH, MICHAEL JOHN FRENCH, SUSAN PATRICIA SHORE, FLORENCE JILL ERRIDGE, LOUISE HAMILTON, BARNABAS ERNEST BRISTOW
Respondents

Hearing: 16 September 2013

Appearances: G M Brodie for Plaintiff
D M Lester for B Bristow
No Appearance for Other Respondents

Judgment: 30 October 2013

JUDGMENT OF D GENDALL J

Introduction

[1] Shirley Elizabeth Bristow (the deceased) died on 25 November 2010 leaving a will dated 11 June 2009. The respondents are executors and administrators of her estate.

[2] The application before me involves determination of a preliminary question. This is whether this Court has jurisdiction to direct that any provision which may ultimately be made for the applicant, Timothy James Bristow (Timothy) in this proceeding under the Law Reform (Testamentary Promises) Act 1949 can be satisfied from funds that would otherwise be paid to his brother, Barnabas Bristow
(Barnabas) as a “creditor” of the estate of his late mother, the deceased, in a situation

BRISTOW v SMITH [2013] NZHC 2866 [30 October 2013]

where this debt owing to Barnabas would exhaust the value of the assets in the estate.

[3] Before me Mr Brodie appeared as counsel for Timothy, the applicant, and Mr Lester appeared as counsel for Barnabas. There was no appearance for the respondent executors, who have indicated they will simply abide the decision of the Court.

Background facts

[4] This issue arises because the only remaining asset in the deceased’s estate is

1000 “B” shares in Sproxton Farm Limited (“the company”), being approximately a

50% shareholding. As I understand it, the company owns a farm property at Ashley Gorge which has been farmed (and Timothy says substantially improved) by him and his wife for many years. They, or their interests, own the remaining 50% shareholding in the company. Any cash that had been originally in the deceased’s estate has been exhausted since her death to settle the payment of costs.

[5] In separate proceedings issued by Barnabas in this Court on 21 October 2011 under No. CIV-2011-409-2181 (the 2181 proceedings) judgment was entered in favour of Barnabas against the deceased’s estate for the sum of $350,402.24. This judgment resulted from a successful breach of contract claim by Barnabas against the estate. The claim related to a deed dated 5 April 1993 entered into between Barnabas and the deceased, which represented an arrangement to settle a claim Barnabas had against the estate of his late father who died on 3 February 1991, the deceased being a life tenant in her husband’s estate. Under this deed, the deceased covenanted to leave to her son Barnabas her 1000 “B” shares in the company in return for a settlement of Barnabas’ testamentary promises claim against his late father’s estate.

[6] The deceased then failed to make this provision in her 11 June 2009 will Instead, by her will, the deceased left the “B” shares to her other son, the applicant Timothy.

[7] The claim…

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 Bristow v Smith

Details

AGLC: Bristow v Smith [2013] NZHC 2866
Case: [2013] NZHC 2866
Decision Date: 30 October 2013

CaseChat Overview and Summary

Timothy James Bristow applied to the High Court of New Zealand to determine whether the court had jurisdiction to direct that any provision that might ultimately be made for him under the Law Reform (Testamentary Promises) Act 1949 could be satisfied from funds that would otherwise be paid to his brother Barnabas Bristow as a creditor of their late mother's estate. The respondents were the executors and administrators of their mother's estate. The only remaining asset in the estate was 1000 "B" shares in Sproxton Farm Limited. Barnabas had previously won a judgment in favour of his claim against the estate for $350,402.24. Timothy argued that the estate could not pay Barnabas because it would leave nothing for him. The court found that it did have jurisdiction to direct that any provision made for Timothy under the Testamentary Promises legislation could be satisfied from funds that would otherwise be paid to Barnabas as a creditor. The court also found that Timothy had several alternative legal bases for his claim against the estate. The court granted Timothy leave to file and serve an amended statement of claim and ordered a case management conference with all parties. Costs were reserved.

Orders